Some criminal defendants just want to serve their time. There a variety of reasons for that. Sometimes they are facing active time for another conviction and hope the new sentence can be served concurrently. Sometimes it’s a money issue. And some defendants simply find life under community supervision to be difficult. Probation can be hard, notwithstanding its popular portrayal as a slap on the wrist.
As I wrote in this prior post, the law that formerly allowed a probationer to elect to serve a sentence, G.S. 15A-1341(c), was repealed in 1995. S.L. 1995-429. The change was effective for criminal offenses occurring on or after January 1, 1997. Nevertheless, court and correctional data show that a substantial (albeit declining) number of exits from probation are via “election to serve.” As part of the Justice Reinvestment process, analysts from the Council of State Governments flagged the large percentage of elections to serve (8 percent of all probationers in FY 2009 according to their report) as a concern, both in terms of cost and as a reflection on the effectiveness of community supervision in North Carolina.
The Justice Reinvestment Act (JRA) made several changes that directly and indirectly impact the elect-to-serve issue. In light of those changes, it’s time for another look at the law.
First, make no mistake: G.S. 15A-1341(c) is still repealed. Defendants do not at any point in the process have a statutory right to refuse probation or (as it is sometimes said) to “invoke” their sentence. The elect-to-serve check box does not appear on the most recent batch of AOC forms.
Still, there are times where a defendant may express a legitimate preference for active time. There are two points in the process when that might happen: a newly-convicted defendant might ask for an active sentence out of the gate, and a defendant already on probation may ask to be revoked. I’ll consider each circumstance in turn.
At sentencing, a defendant who falls within a cell on the sentencing grid that allows for active punishment may certainly ask the judge for an active sentence. The defendant is not entitled to it, but in many cases the request may resonate with the judge. A request for an active sentence when one is permissible is fairly straightforward, although the JRA adds a wrinkle for felons with offense dates after December 1, 2011. All of them, including Class F through I felons, will receive post-release supervision. And under G.S. 15A-1368.2(b), post-release supervision cannot be refused. The pull-off-the-Band-Aid appeal of serving active time may be diminished by the knowledge that at least nine months of supervised release will follow the incarceration.
But what about defendants who fall in a grid cell without an “A”? As under prior law, they may not, in general, be given an active sentence. The General Assembly has determined that they do not merit the cost of a prison or jail bed—at least not at the outset. There is, however, a limited exception to that rule for misdemeanants. Under G.S. 15A-1340.20(c1) the court may impose an “active” sentence for a defendant who falls in a “C” or “C/I” cell on the grid if that sentence is equal to or less than any jail credit the defendant might have. Because the lowest permissible sentence of imprisonment in every cell on the misdemeanor grid is 1 day, any defendant with even a single day of jail credit can be sentenced to time served. There is no parallel statutory provision for felonies, although in my opinion even a felon in a “C,” “C/I,” or “I” cell should be sentenced to time served if his or her jail credit exceeded the maximum sentence imposed—there would be no sentence left to suspend. (Of course, that’s less likely to happen now that felony maximum sentences have been increased to accommodate post-release supervision. For example, a Class I/Prior Record Level I defendant would need to have over 13 months of jail credit to cover even the lowest permissible sentence from the mitigated range.)
Outside of those “time served” scenarios, an active sentence is impermissible for defendants falling in grid cells without an “A.” If a judge nonetheless wishes to allow a person in one of those grid cells to bypass probation and go directly to prison or jail, I think a multi-step process is required. The judge should first sentence the person to probation and then hold an immediate probation violation hearing (getting the defendant to waive his or her right to 24 hours’ notice), at which the defendant admits to a violation of probation and is consequently revoked. As I understand it, the violation typically admitted to in those situations is a refusal to report to the probation officer as ordered under G.S. 15A-1343(b)(3). The process requires extra paperwork (a sentencing judgment and a revocation order), but it heads off the (legitimate) argument, raised via appeal or motion for appropriate relief, that the sentence was illegal.
There are at least two issues with that approach after Justice Reinvestment. The first is a legal problem: for probation violations occurring on or after December 1, 2011, the court may only revoke a defendant’s probation for committing a new criminal offense (G.S. 15A-1343(b)(1)) or absconding (new G.S. 15A-1343(b)(3a), which only applies to offenders on probation for an offense that occurred on or after December 1, 2011). Unless the defendant admits to one of those specific violations (or a violation that occurred before December 1, 2011), the longest activation the court can order is 90 days of confinement in response to violation (CRV) under new G.S. 15A-1344(d2). For many misdemeanants the CRV period could be long enough to use up the entire remaining sentence, but that’s unlikely to be the case for most felons.
The second issue is a practical consideration for felons with offense dates after December 1, 2011, and I’ve already mentioned it once: they must remember that even revoked probationers will eventually wind up on post-release supervision. Again, a defendant cannot refuse post-release supervision, and, under new law effective for offenses committed on or after December 1, 2011, the Post-Release Supervision and Parole Commission’s authority to revoke PRS is limited in much the same way as courts’ probation revocation authority. G.S. 15A-1368.3(c).
For defendants already on probation who wish to serve their time, the post–Justice Reinvestment issues are essentially the same ones described in the preceding paragraph. Under prior law, a probationer could admit to a violation—any violation—and the court could revoke, activating the entire suspended sentence. Under the new law, if the alleged violation occurred on or after December 1, 2011, revocation is only permissible for a new criminal offense or absconding. And if the probationer was a felon on probation for an offense that occurred on or after December 1, he or she must remember that post-release supervision awaits after revocation.