Justice Reinvestment Clarifications Become Law

Like most complicated legislation, the Justice Reinvestment Act (JRA) was less than perfectly clear as originally written. Earlier this week (July 16, 2012) the governor signed House Bill 1021, Justice Reinvestment Clarifications. S.L. 2012-188. The act makes several important changes to the law, some of which are effective immediately. This post summarizes them.

Changes to “quick dip” procedures for probation officers. Under the JRA, probation officers can, in certain cases, impose a short term of jail confinement in response to a probation violation. That confinement has been referred to colloquially as a “quick dip” in the jail. The officer may impose up to six days of confinement per month, served in 2-day or 3-day increments, during any three separate months of a period of probation. The power to use quick dips was effective for any person on probation for a Structured Sentencing (i.e., non-DWI) offense committed on or after December 1, 2011, but Community Corrections chose as a matter of policy not to use them until July 2, 2012.

Before imposing a quick dip, a probation officer must present the probationer with a violation report noting the alleged violations and designating the period of confinement the officer is planning to impose. The officer must advise the probationer of his or her rights to a lawyer and a hearing on the violation. If the probationer signs a written waiver of those rights, the officer can impose the quick dip.

The Clarifications Act made a small change to that waiver procedure. Under the JRA as originally written, the waiver had to be witnessed by the probation officer and “a supervisor.” In some districts, the “supervisor”—the chief probation-parole officer or perhaps a judicial district manager—does not work in the same county as some of the officers he or she supervises. That made it inconvenient for the supervisor to witness a probationer’s waiver of rights. In response, the Clarifications Act deletes the requirement for a supervisor to witness and allows another officer (designated by the chief of the Section of Community Corrections in the written policy of the Division of Adult Correction) to do it instead. The change probably does not affect the analysis of whether the waiver procedure is constitutionally sufficient. Notice, a meaningful hearing, and an impartial decision maker—not witnesses—are the core elements of procedural due process.

The change to the witness requirement was made in both G.S. 15A-1343.2(e) (for community cases) and (f) (for intermediate cases). It is effective immediately on July 16, 2012.

Changes to confinement in response to violation for misdemeanors. As originally written, the JRA said that the period of confinement in response to violation (CRV, sometimes referred to as a “dunk”) for a misdemeanant was “up to 90 days.” G.S. 15A-1344(d2). However, the law went on to say that if 90 days or less remained on the defendant’s suspended sentence the CRV period had to be for the length of that remaining time. Because most misdemeanor sentences were 90 days or less to begin with, the rule virtually always trumped the court’s authority to order a shorter CRV period. It led to a peculiar result: the judge could impose a short CRV period (5 days, for example) for a defendant with a suspended sentence of 91 days or more, whereas any CRV period ordered for a defendant with a suspended sentence of 90 days or less was required to be a “terminal dunk,” using up the entirety of the remaining sentence. That formulation also appeared to frustrate one of the purposes of the JRA—reducing the number of offenders incarcerated for technical violations of probation—in that most misdemeanants’ first CRV period was the functional equivalent of a revocation.

The Clarifications Act excludes misdemeanants from the 90-days-or-less-remaining rule. In other words, the judge now can, in his or her discretion, impose a shorter CRV period in any misdemeanor case. The new version of the rule simply says the court may impose a CRV period of “up to 90 days” in a misdemeanor case. The law does not explicitly address how long the CRV period may be when the offender has less than 90 days remaining on his or her suspended sentence, but given that the confinement must be credited under G.S. 15-196.1, it may be no longer than the defendant’s suspended sentence.

The change was effective immediately when the governor signed it at 3:50 p.m. on July 16, 2012. It thus appears to apply to any CRV-eligible violation heard on or after that point. (If a judge was unaware of the change and, thinking it mandatory, ordered a terminal dunk for a misdemeanant after the law took effect, there may be grounds for bringing the matter back before the court for reconsideration in light of the revised law.) It will take a little time for the AOC forms to catch up with the change in the law. Until a new form AOC-CR-609, Order on Violation of Probation or on Motion to Modify, is published, court personnel should, in misdemeanor cases, disregard the usage note saying that a terminal CRV period must be ordered if 90 days or less remain on the defendant’s sentence.

Community service fee. The “perform community service” condition added by the JRA as a “community and intermediate” condition of probation under G.S. 15A-1343(a1)(2) did not expressly require payment of the $250 community service fee described in G.S. 143B-708. As a result, a defendant ordered to complete community service as a special condition of probation under G.S. 15A-1343(b1)(6) was required to pay the fee, while a defendant ordered to perform community service as a community and intermediate condition under G.S. 15A-1343(a1)(2) may not have been required to pay it. The Clarifications Act amends the latter condition to say that the fee is required under it, too. The change is effective July 16, 2012, and applies to any community service ordered as a community and intermediate condition on or after that date. As such, court personnel should probably disregard the usage note on the suspended sentence judgment forms saying that the community service fee should not be assessed for the “community and intermediate” version of the community service condition unless specifically ordered by the court.

Post-release supervision changes. The Clarifications Act made several changes related to post-release supervision.

First, the act amended G.S. 15A-1368.3(c) to say that while a person is reimprisoned for a violation of post-release supervision, his or her period of supervised release is tolled. For example, a supervisee who commits a technical violation in the eighth month of a 9-month post-release supervision period will have 1 month of post-release supervision left to serve in the community upon her release from a 3-month term of reimprisonment. The supervision period will not expire during her imprisonment. (Note that there is no parallel provision tolling a probationer’s period of probation during a CRV period.) The amended law also adds that a supervisee is not to be rereleased onto post-release supervision if the supervisee has served all the time remaining on his or her maximum imposed term. That change applies to all supervisees, including sex offenders. Under prior law, sex offenders were sometimes kept under supervision even after the conclusion of their full term of imprisonment, with the conditions of supervision enforced through the Post-Release Supervision and Parole Commission’s contempt power (discussed here). That practice does not appear to be permissible under the revised law. The change applies to supervisees who violate on or after July 16, 2012.

Second, the act amends G.S. 143B-720 to allow the Post-Release Supervision and Parole Commission to hold all post-release supervision and parole hearings and contempt hearings for sex offenders by videoconference. The change is designed to help the Commission handle the large expected increase in the number of post-release supervisees now that PRS applies to all felons. Logistically, the ability to conduct hearings via videoconference will certainly be helpful—there is only one Commission in Raleigh, and it (not the courts) is the controlling authority for PRS cases all across the state. There may be questions, though, about whether a hearing conducted via videoconference satisfies constitutional due process requirements. There isn’t much case law on point from other jurisdictions. See United States v. Thompson, 599 F.3d 595 (7th Cir. 2010) (holding that Rule 32.1 of the Federal Rules of Criminal Procedure prohibits conducting supervised release hearings via videoconference). Cf. Wilkins v. Timmerman-Cooper, 512 F.3d 768 (6th Cir. 2008) (upholding, on federal habeas review, a state parole violation hearing in which a parole officer and a witness testified against the parolee via videoconference). The technology may not be suitable for contempt hearings, which require proof beyond a reasonable doubt under the procedures set out in G.S. Ch. 5A. See S.E.C. v. Kimnes, 759 F. Supp. 430 (N.D. Ill. 1991) (discussing a defendant’s constitutional rights to be present and to confront witnesses at a criminal contempt hearing). The change is effective December 1, 2012.

Finally, the act amends G.S. 15A-1368.1 to make clear that the post-release supervision law applies to drug trafficking sentences. (Previously there were some indications that it did apply and some that it did not.) The act also adds time onto the maximum sentences for drug trafficking set out in G.S. 90-95(h) to cover for traffickers’ early release onto PRS. The act adds three months to the maximum sentences for Class C, D, and E trafficking (so that maximum sentences in those cases are 120 percent of the minimum plus 12 months) and nine months to the maximum sentences for Class F, G, and H trafficking (so that maximums in those cases are 120 percent of the minimum plus 9 months). That additional time will avoid the situation (discussed here) where the post-release supervision law commands a person’s release before he or she has served the minimum sentence. The changes are effective for offenses committed on or after December 1, 2012. That effective date leaves questions about the proper way to handle drug trafficking sentences for offenses committed between December 1, 2011 and November 30, 2012. I’ll write separately with my thoughts about that.