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Advanced Supervised Release

September 22nd, 2011
By Jamie Markham

The Justice Reinvestment Act (S.L. 2011-192) creates a new program called Advanced Supervised Release (ASR).  Through it, certain inmates will be eligible for release from prison before serving their minimum sentence. According to literature prepared by the Council of State Governments (CSG) Justice Center, a non-profit group that helped develop the legislation, the purpose of ASR is to “[p]rovide incentives for people incarcerated to complete programs that would reduce the likelihood of that person reoffending.” Justice Reinvestment in North Carolina: Analysis and Policy Framework to Reduce Spending on Corrections and Reinvest in Strategies to Increase Public Safety, 17. This post summarizes the law and examines some of its technicalities.

(Note: House Bill 335, which has been ratified by the General Assembly but not yet signed into law by the governor, makes some technical corrections to the ASR law. This post assumes those technical corrections will become law, but if that doesn’t happen I’ll let you know and amend the post accordingly.)

Effective for defendants who enter a plea or are found guilty on or after January 1, 2012, new G.S. 15A-1340.18 allows a sentencing judge, without objection from the prosecutor, to order the Department of Correction to admit an eligible defendant into the ASR program. The law requires DOC to release the defendant on a predetermined ASR date if he or she completes certain risk reduction incentives while in prison (or is unable to complete them through no fault of his or her own). DOC may only admit to ASR those defendants for whom the program is ordered in the sentencing judgment. (That limitation is clearer under the technical amendments set out in House Bill 335 than it was in the original legislation.) Each of those italicized terms is discussed in greater detail below.

Eligible defendant. Only defendants convicted and sentenced based upon the following felony classes and prior record levels are eligible for ASR:

Class D, Prior Record Level I-III

Class E, Prior Record Level I-IV

Class F, Prior Record Level I-V

Class G, Prior Record Level I-VI

Class H, Prior Record Level I-VI

The law also limits ASR eligibility to defendants sentenced to an active sentence. Defendants initially sentenced to probation but later revoked apparently are not eligible for ASR.

(Part of that catchment area may present a problem in the short term. The ASR law says that offenders will be released from prison early and placed on post-release supervision. The law’s effective date says ASR is available to eligible defendants convicted on or after January 1, 2012, but for offenses committed before December 1, 2011, only Class B1 through E felons get post-release supervision. Many Class F, G, and H felons convicted after January 1 will have offense dates before December 1, 2011—and therefore won’t have any supervision to be released to in advance. It’s unclear whether those defendants simply cannot be ordered to ASR, or whether the ASR law itself fills that gap when it says in new G.S. 15A-1340.18(g) that a defendant “released on the ASR date is subject to post-release supervision under this Article”—meaning Article 81B, Structured Sentencing, where the ASR law is codified. Our existing post-release supervision law is set out in Article 84A of Chapter 15A, not Article 81B, so maybe the supervised release envisioned in the ASR law is something altogether different. Either way, the problem goes away relatively quickly; under Justice Reinvestment, all felonies committed after December 1, 2011—regardless of offense class—get post-release supervision.)

ASR date. Under G.S. 15A-1340.18(d), the ASR date is the shortest mitigated sentence (and that presumably means minimum sentence) that the defendant could have received based on his or her conviction offense and prior record level. If the defendant is sentenced in the mitigated range, then the ASR date is 80 percent of the minimum sentence imposed. (Note that for defendants sentenced at or near the top of the mitigated range, the 80 percent rule generates a later ASR date than the rule for presumptive or aggravated sentences. For instance, the ASR date for a Class D, Level III offender sentenced in the aggravated range to 105–138 months is 51 months. The ASR date for the same offender sentenced in the mitigated range to 65–90 months is 52 months.) Given the way the ASR date is defined, it appears that drug trafficking sentences are ineligible for the program–there simply is no mitigated range in the drug trafficking sentencing regime set out in G.S. 90-95.

Risk reduction incentives. New G.S. 15A-1340.18(b) authorizes DOC to create risk reduction incentives for defendants admitted to the ASR program. Exactly what those incentives will be has yet to be determined, but the law states that they will consist of treatment, education, and rehabilitative programs designed to reduce participating offenders’ likelihood of reoffending. Whatever the programs turn out to be, DOC must release inmates who complete them (or, as mentioned above, who are unable to complete them through no fault of their own) on the ASR date.

Procedurally, a judge who wants a defendant to receive ASR will still impose a regular minimum and maximum under Structured Sentencing—that’s the sentence that will kick in if the defendant gets terminated from the program or revoked from early release. G.S. 15A-1340.18(d). The law also requires that the “defendant shall be notified at sentencing that if the defendant completes the risk reduction incentives as identified by the Department, then he or she will be released on the ASR date.” G.S. 15A-1340.18(e). Presumably the sentencing judge will give that notification when pronouncing judgment, although the law states that DOC is ultimately responsible for determining the exact date of the release. Id.

Offenders released early onto post-release supervision through ASR are subject to the new violation rules set out in G.S. 15A-1368.3(c) (discussed here), with the caveat that once an ASR offender has been returned to prison for three, three-month periods of confinement (for non–new crime, non-absconding violations by an offender who isn’t a sex offender), a subsequent violation results in a return to prison for the time remaining on the maximum imposed term. There is no prospect of further release to the community “regardless of the amount of time remaining to be served.” G.S. 15A-1340.18(g). And depending on the defendant’s underlying sentence, the amount of time remaining to be served could far exceed the 9 or 12 months hanging over the head of the ordinary post-release supervisee. The maximum is not re-pegged to the ASR date. Consider the following example.

Suppose a Class E, Level I offender is sentenced in the presumptive range to 20–36 months, active, and ordered into the ASR program. The defendant’s ASR date will be 15 months—the shortest mitigated sentence for a Class E, Level I offender. If the defendant completes risk reduction incentives in prison, DOC must release him onto post-release supervision after 15 months. The period of supervised release in the community is 12 months, but the sentence hanging over his head is 21 months (less any earned time he might earn during his 15 months in prison).

The ASR date would be the same (15 months) if the defendant were sentenced in the aggravated range. If the defendant received a mitigated sentence of, say, 15–30 months, the ASR date would be 12 months (80 percent of 15).

The law requires DOC to adopt policies and procedures for documenting an inmate’s progress through the ASR program and for terminating inmates from the program due to a lack of progress or pattern of noncompliance with the program or other rules or regulations. (The same statute also directs DOC to adopt policies for “the assessment” to occur at diagnostic processing, but there is no other reference to an assessment in the law.) If an inmate is terminated from the ASR program, the ASR date is nullified and the defendant’s release date is determined based on the regular minimum and maximum term imposed by the court at sentencing. Even a prisoner who has already completed the assigned risk reduction incentives can see his or her ASR date nullified on account of noncompliance with DOC rules or regulations.

ASR is not without controversy. Similar early release plans have cropped up in other states, largely as a cost-cutting measure, but not all of them have survived. One of the states (Wisconsin) highlighted in the CSG materials cited in the opening paragraph of this post recently repealed its program after only a few years. In North Carolina the law is the first exception to the cardinal Structured Sentencing rule that everyone serves the minimum. G.S. 15A-1340.13(d). It would be an exaggeration, though, to say that ASR is a return to the Fair Sentencing days when, in 1993 for example, the average felon served less than 20 percent of his or her sentence before being released. See The North Carolina Sentencing and Policy Advisory Commission: A History of Its Creation and Its Development of Structured Sentencing, 5. And ASR preserves a measure of truthfulness to the extent that it is a front-end determination that must be announced to the defendant at sentencing.

It will be interesting to see how (and how often) the law will be used. Only time will tell, but perhaps your comments will give us a clue.

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27 Responses to “Advanced Supervised Release”

  1. Chris Bragg says:

    Jamie the success or failure of ASR will depend on the “risk reduction incentives” created by DOC. I’ll be interested to see what DOC can put together especially in light of the current budget constraints.

  2. barb says:

    I have someone incarcerated who is eligible for minimum custody and has been recommended by his case worker, taken a Risk Assessment Test, Thinking for a change seen a social worker , no infractions in 6 months, maxes out in July minus a 90 day early release (April) and Doc says a Region Level employee has to sign off on the custody level. A Mr. Hester in the office in Raleigh says they do “NOT” have to grant anything. So is this the law?

    • Prosecutor says:

      ASR only applies to offenses committed on or after December 1, 2011. Sounds like your guy has already been convicted, so none of this applies to his case.

  3. Is there a law that is beeing passed that state inmates only have to serve 65% or is it still 85%?

    • Prosecutor says:

      The rule in North Carolina is simple. Every single inmate doing an active sentence under Structured Sentencing must do the minimum term, no matter what. There is no 65% rule, no 80% rule, no nothing except the full, minimum term.

  4. lakeisha says:

    i wanted to know if a inmate has been incarcerated for almost nine years and his max sentence is 2014 will he be eligle for this asr program and when and how much more time do he have to serve.

  5. Kim says:

    my husband is a Felon Habitual Impaired Driving Min 1yr 5mons Max 1yr 9mons Class F Conviction 1/23/12 offense date 12/5/10 does this apply for him?

  6. alishA says:

    The sentencing judge has to order this or doc. Can recamend this asr.

  7. lauren says:

    I have a friend that got 70 to 84 months for trafficking schedule 2. Would he be elgible for this program? When? And who should he talk to?

  8. lauren says:

    Should he ask caseworker to recommend it? Whom should he talk to? Does he have to get another attorney? If he doesnt want to go back in front of the judge. He is 5 weeks into his sentence.

  9. sherry says:

    i have some one incarcerated,he went in the end of march of this yr.he is a class D felon can he get out early.do i need to get a attorney for him.

  10. connie says:

    My brother was charged with a crime in Dec 2009 and is likely to sign a plea in the coming weeks. It will be an Alfred Plea to second degree murder. Will/can this apply to him? Any option for him to get out early under the ASR or will he only be eligible for the post release time?

  11. Kristen says:

    My fiance is being sentenced Monday and is a class D level 3 with 5 charges of first degree burglary. He is being told he will atleast get 30 years in prison. Would he qualify for the program?

    • Jamie Markham says:

      Kristen,
      A Class D, level III defendant is eligible for ASR under the statute, but the judge and prosecutor decide whether an eligible defendant will actually be ordered into the program.

  12. Sandy says:

    My son was convicted and sentenced in July 2009. He was given 7 yrs 4 mo for not completing approx. $56,000 worth of work. He had his own construction business. From what I’m understanding, (please tell me I’m wrong!!) This new law is only going to help those inmates that commited and were incarcerated on/after Jan. 2011.
    He has not had an infraction for almost 18 months, and gets up and goes off the campus to work a 40 hour a week job. He’s keeping his nose clean, as they say. Doing EVERYTHING expected of him and then some. He can earn merritt days with extra working. His crime was a non-violent crime. Yes he hurt the pockets of these people. But even without being ordered to, he is paying every penny back to them. Would he qualify for the program of early release or not?
    I am so confused when it comes to the sentencing part as there are other inmates that were dealing big time drugs and got less than 4 years. Another committed an armed robbery and got 7 1/2 years. 2 months longer than my son. All of my sons crimes were not finishing a job but had their money already. I’ll never condone what he did, but I am furious with how the system works!!! NEVER NEVER NEVER did he deserve 7+ years for this. I certainly hope someone agrees with me. He’s been in 4 yrs, 2 mo., & 25 days. If anyone deserves an early release, I truly believe in my heart it should be him!!!!
    I’ll be anxiously awaiting to hear from you!! Thanks a Million for your response.
    SD

    • Jamie Markham says:

      The ASR law applies only to sentences imposed after January 1, 2012.

      • Sandy says:

        Thank you for the answer, I think. Does this mean he will have to serve his entire sentence without ANY chance of early release? Is there any other way of getting his sentence reduced what so ever if he can’t use he ASR law?

  13. Sandy says:

    Just a quick P.S.
    The $56,000 was from 12 different people, not just one person. Would the amount of charges have anything to do with the sentencing?
    Thanks Again,
    SD

  14. Corey says:

    Did I understand your post to say that a judge can’t order ASR unless the prosecutor does not object?

  15. LJ says:

    My question is whether DOC can decide that ASR is appropriate for a particular case, or if only the sentencing judge has that power? I’ve been told DOC can decide on a case by case basis. However, from this article is sounds like only the sentencing judge can make that decision.

  16. monica says:

    I am trying to find out who to contact for my finance who has been convicted before
    Dec2011 matter fact it was april 2011 I do believe who can i talk to on his behalf

  17. brenda trivette says:

    My grand daughter serving time on a 1st time offence/non-volient case. She was sentenced to 18 months. Will this new law help her. She was sentenced in August,2014.

  18. Dianna campbell says:

    Just wanted to know on a 1st time charge of a felony drug charge….is there any chance of an early release date? Specially if the time he has done is the same amount of time left to serve? It’s non violent charge. Just wanted to know. Thank you .

  19. Janine Moore says:

    I have a son that is incarcerated. His release date is in 2019. He is a habitual felon that was carrying a concealed weapon. He hasn’t had any trouble in 2 years, that was a write up. Is he considered a violent felon or could he be eligible for ASR?

  20. Mrs B. says:

    I don’t understand the purpose of creating the ASR law if permission is given to prosecutors and judges to object to it. If a defendant is eligible for ASR based on the eligibility rules, then it should be granted to him/her. I believe this flexibility in deciding whom to give it to opens doors for discrimination. I would like to know how judges and prosecutors determine who gets ASR and who doesn’t. My son was convicted of a felony and sentenced back in September 2013 for 7yrs minimum and 10 yrs maximum for robbery with a dangerous weapon and conspiracy. He took a plea bargain and asked his attorney (public defender) to ask the judge for ASR but the prosecutor objected. My son had no prior convictions and we could not understand why the prosecutor objected. I can see if my son was not eligible for ASR based on the rules, but he was clearly eligible. Again, I do not see the purpose of the law if it is not being used fairly.

  21. Mrs Beaty says:

    My husband was convicted of attempted trafficking of opiates and possession of firearm by felon (it was my gun on my hip and fingerprint analysis of the gun returned no prints of my husband). He was sentenced to 30-48 months – in the mitigated range because he is a level 4. The judge gave him the highest minimum that he could imposed based on the sentencing chart for his crime and prior record level. The plea agreement was for 23-30 months but the judge went against this and gave him 30-48, something we were forced to accept. Is he a candidate for anything..at all? I’m trying to look into all of this for him, but I don’t even know where to start. Also – because I’m on probation (never been in trouble in my life until now and I’m 34) they won’t let me visit him. Anything I can do about this?

  22. Angela says:

    Can you make a request to the da and judge to place someone on asr after sentencing. My husband plead guilty to habitual dwi (Class F) and was wondering if he is able to obtain this. He was sentenced to 23 to 37 months. Thanks for your help. He was convicted on May 2014. Has been in for almost two months now. Thanks

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