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The Difference between Jail and Prison

Updated: Nov 14

The terms jail and prison are often used interchangeably or synonymously. However, there are major differences between jails and prisons, despite the fact that both jails and prisons are institutions used to hold inmates.


The most basic difference between jail and prison is that a jail is usually reserved for inmates who are incarcerated after conviction for a lower-level crimes, such as misdemeanor DUI, or for persons who are awaiting trial before conviction. On the other hand, prison is reserved for inmates who are incarcerated after a conviction for more serious or violent crimes, such as residential burglary, rape, or robbery.


Note: At one time, and not too long ago, the difference between jail and prison was simple. A defendant who was convicted and sentenced to incarceration for a year or less, or who was otherwise awaiting trial regardless of the ultimate sentence, if any, was housed in county jail. All other inmates were incarcerated in prison after a criminal conviction. Today, after the passing of PC 1170(h) (Realignment), jail continues to be used to house inmates who were convicted of lower-level crimes and for persons who are awaiting trial, regardless of their ultimate sentence, if any; however, the maximum term that may be served in jail in 2020 may now well-exceed one year. Prison is now mostly reserved for inmates who have suffered a conviction for a serious or violent crime (See PC 1170(h)); however, after PC 1170(h), there are many exceptions to this serious or violent crime sentencing rule).


Jail v. Prison


Jail: As stated, the biggest difference between jail and prison is the amount of incarceration, if any, that an inmate is ordered to serve after a criminal conviction, and whether or not the defendant is awaiting trial. For example, a defendant sentenced to ninety (90) days after a misdemeanor DUI conviction will serve that sentence in a county jail. Likewise, a person awaiting trial on a murder charge will spend her time in county jail while she is awaiting trial (subject to possible pre-trial release on bail); however, if the defendant awaiting trial on the murder charge is ultimately convicted, she will serve her incarceration in state prison, as opposed to a county jail, because the crime of murder is a serious and violent offense (PC 187(a), 1192.7(c), & 667.5).


Moreover, jails are managed by the County where the jail is located, not by the state of California. An inmate in jail is either serving incarceration after a criminal conviction for a lower-level crime that occurred in the county where the jail is located, or she is awaiting trial for a criminal charge that arose out of the county where the jail is located.


For example, if the defendant is incarcerated in a county jail after a criminal conviction for the crime of drunk in public (a low-lever misdemeanor), the defendant will be incarcerated in the same county where the crime occurred. Also, a defendant who is awaiting trial on a murder charge (a violent crime) will be house in a jail in the same county where the murder is alleged to have occurred. However, if the defendant is ultimately convicted of the murder charge, then she may be transferred to any state prison and out of the local county jail to serve her prison sentence.


Monitoring Alternative Sentences: County jails also manage out-of-custody programs related to incarceration, such as work release and house arrest. Some prisons also run out-of-custody programs, such as monitored living in a halfway house or monitored work on a fire camp, but these program are not available to most prison inmates, are seasonal (fire camp), and are not usually available to an inmate until the inmate is on short-time (served most of her prison sentence). On the other hand, jail alternatives are usually available immediately upon sentencing. For example, if the defendant is sentenced to ninety (90) days of jail after a misdemeanor criminal threats charge, then that jail sentence may usually be served alternatively, and entirely, on work release. These jails alternatively are not usually available in sex case convictions, even if the sex crime is classified as a misdemeanor.


Less "Freedom" in Jail: Another big difference between jail and prison is that there is less freedom in jail than there is in prison. Obviously, both jail and prison represent the lack of freedom, but believe it or not, most inmates who have experienced both jail and prison will claim that of the two, jail has less freedoms than prison for the following reasons: In jail, the freedom of movement is less than in prison; there is no “yard” in county jail and the common area in jail is usually very small; outside areas, if they exist at all, are very small in county jails; there is constant noise in jail while the inmates are moved throughout the facility for morning court appearances; visitation by family and friend in jail is limited in time (usually about thirty (30) minutes) and the visitation is very impersonal as it is conducted behind or between thick security glass that separates the inmate from the visitor; the food in county jail is reported to be less satisfying than the food served in prison; finally, jails usually do not have a church, classrooms, weightlifting equipment, or work facilities (wood shop, laundry, etc.), whereas, these amenities are usually available in prison.


Prison: With exceptions, a California state prison holds inmates incarcerated after conviction for serious or violent crimes, such as rape, torture, child molestation, murder, kidnapping, etc. Prison sentences are usually much longer than jail sentences.


Note: Modern prison are sometimes called penitentiaries (plural). The term penitentiary (singular) is a somewhat antiquated and ecclesiastical term as it derived from religious sanctions (a place for penitence). Today, most people use the word prison when referring to what used to be referred to as the penitentiary. The term prison is derived from the Latin word prisun, which translates loosely to ‘apprehend.’


Prison are usually large complexes...much largely than a county jail. Prisons house inmates who are usually serving lengthy sentences for very serious or violent felonies.


Prison Daily Life: The daily life of a prisoner is usually less interrupted than that of his fellow jail inmate. In prison, the inmates usually have more freedom in movement and the overall noise levels are subdued compared to their jail counterpart because there is less constant inmate movement. The food is reported to be of better quality in prison than in jail and visitation with family and friends is longer and more personal in prison than in jail (most visitation is in-person, face-to-face, in a large room where the prisoner and his family can have lunch and have personal contact). Of course, the security in prison is usually more intense overall because many of the inmates are hardened criminal serving long prison sentences for serious and violent crimes.


Good Behavior Credits: Most prison sentences are served with less good behavior credits available. This means that, with exceptions, the inmates in prison are usually earning less good behavior credits than their jail-inmate counterparts. For example, an inmate serving a jail sentence for vehicle theft may usually earn up to a fifty percent (50%) reduction of that sentence for conducting himself with good behavior while in jail (PC 4019). On the other hand, an inmate serving a prison sentence for lewd acts on a minor must serve at least eighty percent (80%) of his prison sentence (PC 288(a)). This is true even if the prisoner conducts himself with good behavior while in prison. To learn more about good behavior credits for a particular criminal offense, see Crimes A-Z.


Prison Not Always Local: Another big difference between jail and prison is that jail sentences are served locally (local to the county wherein the crime was committed); whereas, a prison sentence may be served hundreds of miles away from the site of the crime. For example, a person convicted of rape in San Bernardino County may have to serve his prison sentence in Folsom state prison, which is over four hundred miles from San Bernardino County.


Assessment: A prisoner is housed in any particular state prison based on his security level (minimum, medium, maximum), type of crime (drug, sex, gang, etc.), gender, location of family, if any, medical needs (psychiatric, mental and/or physical disability) and more. For example, if the prisoner in a state prison requires psychiatric care, there is a stronger likelihood that he will be incarcerated near a prison that has psychiatric care facilities, such a Chino Prison. Inmates heading to state prison are assessed to determine which state prison is best suited for the prisoner’s long-term commitment. The period of assessment can take up to one hundred twenty (120) days and there is no visitation allowed for family during the inmate’s assessment period. Conversely, there is no assessment period after a defendant is sentenced to county jail and visitation may usually start immediately after the defendant is sentenced to county jail.


Similarities: Jail and prison have similarities, including, but not limited to, the following: both jail and prison must provide housing in such a manner that is not considered cruel and unusual punishment. Moreover, both jail and prison authorities must allow their respective inmates access to legal materials and legal representation. This means that an inmate’s lawyer cannot be denied visitation with his client-inmate. Also, inmates in both jail and prison must be provided with necessary medical treatment and access to religious materials.


Juveniles: Criminal cases that proceed through the juvenile courts can lead to "jail" sentences that are served in the California Youth Authority (formerly “Juvenile Hall”). These detention facilities focus on rehabilitation; however, it is possible for a juvenile to be transferred to a county jail or prison after the juvenile’s eighteenth (18th) birthday. For more information on detention of juveniles, see Juvenile Delinquency.


Note: An inmate cannot request to serve her incarceration in a jail as opposed to a prison, or vice versa. Where a defendant serves her incarceration, if any, is predetermined by law and is dependent on the crime for which the defendant was convicted. For example, a defendant convicted of murder cannot be granted his request to serve a life sentence in a county jail; conversely, a defendant convicted of misdemeanor battery cannot be granted his request to serve his sentence in a state prison.


To learn more about your criminal case, including your rights and defenses to any California crime, contact our criminal defense lawyers for a free consultation. Our lawyers have successfully handled hundreds of misdemeanor and felony cases in San Bernardino County. Our team of criminal defense lawyers is available to discuss your every day of the week. There is no cost for a first-time in-office discreet consultation. Call today!


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