When analysts from the Council of State Governments studied North Carolina’s sentencing laws and correctional system, one of their key findings was that revoked probationers account for a lot of new entries to prison each year—more than half. The Justice Reinvestment Act (S.L. 2011-192) responds to that finding in several ways, one of which is limiting the amount of a time a probationer can be imprisoned for certain violations of probation.
Under the new law, for probation violations occurring on or after December 1, 2011, the court may not revoke probation for violations of conditions other than the “commit no criminal offense” condition set out in G.S. 15A-1343(b)(1) or the new statutory “absconding” condition set out in G.S. 15A-1343(b)(3a). (The absconding condition is a new regular condition for offenders on probation for offenses that occur on or after December 1, 2011. S.L. 2011-192, sec. 4.(d), as amended by S.L. 2011-412, sec. 2.5.) For other violations, the court may impose a period of “confinement in response to violation” under new G.S. 15A-1344(d2). I’ll refer to that confinement period in this post and in other publications as a “CRV” period (Confinement in Response to Violation). Others have termed it a “dunk.” Whatever you call it, it’s useful to have a terminology that makes clear than confinement under G.S. 15A-1344(d2) is different from other short-term confinement periods, like a “split” (special probation) or a “quick dip” (a short-term confinement option under new G.S. 15A-1343(a1)(3) that I’ll write about in my next post).
For felons, the CRV period is a flat 90 days. For misdemeanants, the CRV period is “up to 90 days.” The law goes on to say, however, that if the time remaining on the defendant’s sentence is 90 days or less, the CRV period “is for the remaining period of the sentence.” Because the vast majority of misdemeanor sentences are 90 days or less, a CRV period for a misdemeanant will almost always use up the defendant’s entire suspended sentence—making it look like a revocation. (There is some argument that the 90-days-or-less remaining caveat only applies to felonies. It uses the term “maximum imposed sentence,” which does not fit perfectly with the misdemeanor sentencing law.)
A defendant may only receive two CRV periods in a particular probation case. After that, the court can respond to future violations by revoking probation, even if the alleged violation is something other than a new crime or absconding. Conversely, the court is never allowed to impose CRV in response to a new criminal offense or absconding; for those violations, the court can either revoke probation or modify it in all the ways it can under existing law.
To sum up the rules, for probation violations that occur on or after December 1, 2011, the court can revoke probation for violations of the “commit no criminal offense” condition, violations of the new statutory “absconding” condition, and for defendants who have previously received two CRV periods. The court is never required to order CRV; it can always respond with other modifications like a split sentence, electronic house arrest, or a curfew, to name a few. That said, you can probably see that the State and the court may, in some cases, be drawn to CRV in response to early violations to set the table for a future revocation.
CRV confinement is similar to special probation, but it isn’t a split. For instance, it is not subject to the one-fourth rule of G.S. 15A-1351(a) or G.S. 15A-1344(e). Also, there is no clear statutory provision for appealing a CRV period. Under G.S. 15A-1347 and existing case law, there is no right to appeal probation matters other than activation of a sentence or imposition of special probation. State v. Edgerson, 164 N.C. App. 712 (2004) (“Defendant’s sentence was neither activated nor was it modified to ‘special probation.’ Defendant therefore has no right to appeal.” (citations omitted)). Perhaps there is an argument that CRV is an “activation” (or at least a partial activation) of sorts, and so it is appealable under G.S. 15A-1347.
There are some additional rules for CRV confinement. First, if a defendant is detained in advance of a violation hearing at which CRV is ordered, the judge must first credit that confinement time to the CRV period, with any excess time to be applied to a later-activated sentence. In other words, the court may not bank the pre-hearing credit the way it can when it orders a split sentence under G.S. 15A-1351. Second, when a defendant is on probation for multiple offenses, the law requires CRV periods to run concurrently on “all cases related to the violation.” Confinement is to be “immediate unless otherwise specified by the court.” The idea behind those provisions is that CRV periods for multiple cases should not be “stacked” to create a confinement period of longer than 90 days. Finally, the law specifies that CRV periods are served “in the correctional facility where the defendant would have served an active sentence.” I described the new rules for determining a defendant’s proper place of confinement in this prior post.
In every session I’ve taught about these new limitations on a court’s authority to revoke probation, I’ve been asked the same question: What about defendants who want to “invoke” their sentence (or “elect to serve” or whatever you might call it)? Can they still do that after Justice Reinvestment? As discussed here, the statutory provision allowing a probationer to “elect to serve” was repealed in the mid-1990s. A probationer can, however, admit to a violation, and then the court can revoke probation based on that. Under the new law, it seems that admissions will need to be to a new criminal offense or absconding in order to empower the court to revoke.