As expected, the number of people on post-release supervision (PRS) is on the rise. After Justice Reinvestment, all felons with offense dates on or after December 1, 2011 who serve active time receive PRS. The legislature projected that the addition of PRS for Class F-I felons would increase the number of post-release supervisees from 2,000 to around 15,000 over the next few years. The PRS census stands at about 3,300 today.
It’s no surprise, then, that I’m starting to get more questions about how PRS works in practice. Today’s post sets out the basic law for what happens when a person is alleged to have violated a condition of his or her post-release supervision.
The controlling authority for PRS cases is the Post-Release Supervision and Parole Commission (the Commission), not a judge. The Commission sets the conditions of supervision (the statutory default conditions are set out in G.S.15A-1368.4 [1]) and adjudicates alleged violations of them.
The officers who supervise PRS cases are the very same officers who supervise probation, but unlike probation, violations of PRS are reported to the Commission, not the court. An officer can arrest a post-release supervisee for an alleged violation, but only with a warrant issued by the Commission. G.S. 15A-1368.6 [2](a).
If the supervisee is arrested, he or she may be detained in the local jail pending a preliminary hearing on the violation. The preliminary hearing must be held reasonably near the place of the alleged violation or arrest within seven working days of the arrest. Otherwise, the supervisee must be released at that point under G.S. 15A-1368.6(b) to continue on supervision until a hearing is held, unless the supervisee is a sex offender, in which case he or she may be held longer under G.S. 15A-1368.6(b1).
It is generally said that a post-release supervisee has no entitlement to bail pending a PRS hearing. There is no statute actually saying that. In fact, the sole statute mentioning “bond” for post-release supervisees is G.S. 15A-1368.6(b1), and, as I just mentioned above, it says only that sex offenders may be “detained without bond” until a preliminary hearing is held, even if it takes more than seven working days to hold it. The express prohibition on bond for sex offenders could, perhaps, be framed as tacit approval of it for non-sex offenders. But I mention that only as a possible argument. To be clear, there is no statute authorizing bail in PRS matters (as is there is for probationers in G.S. 15A-1345(b1) [3]), and the longstanding practice has been to deny it. (The most authoritative guidance on point appears to be a 1975 opinion of the attorney general [4].)
Statutorily, the preliminary hearing may be conducted by a judicial official or by a hearing officer designated by the Commission. In practice, they are done by hearing officers, generally at the local jail. The procedure is informal, as provided in G.S. 15A-1368.6(d). There is no absolute right to appointed counsel at the preliminary hearing, but there is a conditional right, both as a constitutional matter under Gagnon v. Scarpelli, 411 U.S. 778 (1973), and statutorily under G.S. 148-62.1 [5]. That law creates an entitlement to appointed counsel for supervisees who (1) deny the alleged violation; (2) have reasons that justify or mitigate the violation that are complex or hard to present; or (3) appear to be incapable of speaking effectively for themselves. The Office of Indigent Defense Services has developed a procedure [6] that directs hearing officers and clerks of court to use form AOC-G-311 [7] for the appointment of counsel in appropriate cases.
If probable cause is found at the preliminary hearing, the supervisee can be returned to prison to await a revocation hearing before the full Commission. (The hearing officer can also reinstate supervision under the same or modified conditions. When that happens, the defendant is still entitled to credit against his or her remaining term of imprisonment for any time spent confined pending the preliminary hearing. State v. Corkum, __ N.C. App. __, 735 S.E.2d 420 (2012)).
As a practical matter, the vast majority of supervisees apparently waive their right to a final revocation hearing. Those who do not waive may be confined for up to 45 days pending the revocation hearing, as provided in G.S. 15A-1368.6(e). That confinement is generally in a DAC prison facility. Historically, supervisees were brought to Central Prison to be close to the Commission headquarters in Raleigh. As of last year, however, the Commission is empowered to hold revocation hearings by videoconference under G.S. 143B-720(f) [8]. As a result, supervisees may be taken to one of the several facilities around the state equipped with videoconference equipment. Under G.S. 143B-721(d) [9], final revocation decisions are made by majority vote of the full Commission.
For supervisees under supervision for crimes committed on or after December 1, 2011, the Commission’s authority to revoke post-release supervision is limited much like judges’ authority to revoke probation. The Commission may only revoke for a new criminal offense or absconding, or for any violation committed by a sex offender. G.S. 15A-1368.3(c)(1) [10]. All other supervisees may only be returned to prison for three months at a time—similar to a 90-day CRV for probation.
That is the regular violation process in a nutshell. Note that the Commission may also respond to violations by sex offenders using the contempt procedure set out in G.S. 15A-1368.2(b) [11], described here [12].
19 Comments To "The Post-Release Supervision Violation Hearing Process in a Nutshell"
#1 Comment By Kim On February 27, 2013 @ 9:44 PM
To make sure this is clear, are those being held awaiting revocation hearings subject to credit for time served towards their 9 months of post-release?
#2 Comment By Question re: PSR On October 11, 2013 @ 11:26 AM
I have a gentleman I’m trying to help in regards to his PSR. He was convicted in 2005 (date of offense 2003) of a sex offense. He received 107 – 138 months through an Alford Plea. He has now been told he is on PSR for 60 months instead of the 9 months stated when he was sentenced. 60 months PSR was NOT an available sentence in 2005. Would that violate ex post facto laws? I was going to help him write a letter of complaint to the Parole Commission as he is 75 and wanting to move to his home state of Alabama in early 2014. He believed his 9 months would be over in Dec. until he was recently informed he had 5 years. Any assistance would be greatly appreciated.
#3 Comment By T. Kinney On February 8, 2015 @ 9:03 PM
Can a supervisee withdraw his waiver for a final revocation parole hearing?
#4 Pingback By Post-Release Supervisees Who Commit New Crimes | North Carolina Criminal Law On June 2, 2015 @ 3:10 PM
[…] of post-release supervision,” also known as a PRS warrant. G.S. 15A-1368.6(a). As discussed in this prior post summarizing the PRS violation hearing process, it is generally understood that there is no […]
#5 Comment By Amanda On June 13, 2015 @ 3:36 PM
In Jessica Smith’s Criminal Proceedings before North Carolina Magistrate, 2014, She states that “A person taken into custody for a violation of parole or post-release supervision under structured sentencing is not subject to the provisions on pretrial release” and references G.S. 15A-1368.6 (post-release supervision) and 15A-1376 (parole) (page 29). As you mentioned above, these statutes neither give authority to hold without provisions of pretrial release, nor take authority away, so wouldn’t these individuals fall under the general authority provided in G.S. 15A-534(b)?
#6 Pingback By The Courts’ Limited Role in Post-Release Supervision | North Carolina Criminal Law On October 26, 2015 @ 3:19 PM
[…] violations. The courts have little to no role in the PRS violation process. As discussed here, a post-release supervisee arrested on allegation of violation is generally thought to have no […]
#7 Comment By Leo On December 19, 2016 @ 10:22 AM
I am on 9 month post release for habitual impaired driving. I got out August 19 this year. Couple weeks ago I got a speeding and dwlr ticket. The officer let me go.. last week I got into an accident and got dwlr and failure to reduce speed to avoid an accident. My question is will my post release be revoked because of this??
#8 Pingback By A Probation Violation Charge Doesn’t Have to Lead to Jail Time On January 24, 2017 @ 9:19 PM
[…] thrown back into jail if you are accused or charged with a probation violation. There is a court process just as there was for your criminal charge, though this one takes place in probation court and […]
#9 Comment By Natasha christopher On April 4, 2017 @ 12:04 PM
My husband was sentenced 8 more months of his sentence,or giving the choice to probation and he chose probation.We decided its best to do the time,and we changed towns.He will get charged for abconding and serve 90 days for the abconding charge.will those 90 days be credited on his original sentence?
#10 Comment By Confused wife On May 3, 2017 @ 1:30 PM
My husband has 5 more months left in his post release supervision but might be facing a new charge how does this work can that supercede his release date or will he still be released from parole supervision and just have to serve his new time ? Please help me understand this
#11 Comment By Esther Jean On May 16, 2017 @ 8:23 PM
Do they do random home visits on prs
#12 Comment By Lucas On August 1, 2017 @ 6:07 AM
Is post release exclusively for felons? If I have never been convicted of a felony and I’m tired of my PO making me leave work for random drug screenings which I’ve never failed (because he just seems to be a dick) so I’d rather just violate the probation at this point because my boss is getting agitated with it because of me having to leave work randomly and he’s already said it’s about to cost me my job.. what would be the outcome of this situation?
#13 Comment By Christal Hiles On January 24, 2018 @ 5:43 PM
Okay so I have a question if anybody can help me… I caught a felony possession charge and it was late to court and got a felony failure to appear well I did my County time for both charges and was given post supervised release but the whole time I was appealing my possession charge I won my appeal but the felony failure to appear sticks during the appeal process my Pro supervised release officer told me I do not have to check into probation I never was notified after my appeal was Final and I want that I was to go back to probation and now I’m being revoked what can I do
#14 Comment By James On February 11, 2018 @ 11:38 PM
I was released from prison on August 25 my P.O. but me on an ankle monitor August 31st but I was on curfew I still could leave from 6 to 6 I violated on November 12th and got reinstated by the commission on December 18th but put on House Arrest for 90 days can I get the time I was waiting in prison pending decision counted towards the House Arrest
#15 Comment By JaY On February 4, 2019 @ 8:04 PM
Yes.. everyday inside counts..
#16 Comment By Donald On June 12, 2018 @ 4:11 PM
what about a failed urine test or or a traffic ticket for wreckelss driving. 15moh over post limit ?
#17 Comment By dashellbrown On November 5, 2018 @ 3:50 PM
H. My boyfriend’s sentence was 6-8 months. he maxed out at 8 months. they released him on 90 days post release. he’s not from north Carolina, never lived there, etc. it was a traffic stop that got him incarcerated there. He’s from new jersey, he signed extradition papers for new jersey to come and pick him up from north Carolina, so n.c. was aware that he was going back to nj to face a prior charge. once he went to court in nj, north carolina violated him saying he was an absconded parolee. question: can they violate him knowing where he went and why he went back? North Carolina were aware of his new jersey charges, which is why they settled with that sentence so he can return back to his legal state of residence and those charge(s).
#18 Comment By Emily On January 30, 2019 @ 9:15 PM
if someone is let out on 9 months post release, why would they be put on house arrest 3 weeks after he was released from prison
#19 Comment By Cynthia Y Burch On April 6, 2019 @ 10:41 PM
I like know if an offender is servibg a sentence plus Probation violation. And he’s released on with 9 months posr release but have pending prior charges can the offender be violated once he’s released on Post Release