Justice Reinvestment and the “Commit no Criminal Offense” Probation Condition

Under the Justice Reinvestment Act (S.L. 2011-192), for probation violations occurring on or after December 1, 2011, the court may only revoke a person’s probation for a violation of the “commit no criminal offense” condition in G.S. 15A-1343(b)(1) or the new statutory absconding condition in G.S. 15A-1343(b)(3a). The court may revoke probation for other violations only if the probationer has already served two periods of confinement in response to violation under G.S. 15A-1344(d2). Given that most people on probation today are not actually subject to that new absconding condition (it only applies to people on probation for offenses that occurred on or after December 1, 2011, see S.L. 2011-412, sec. 2.5), and most offenders haven’t had time to notch two CRVs, the new criminal offense condition is, for now, the primary pathway to revocation.

As a result, the JRA puts a spotlight on what was already a tough issue (I wrote about it here some time ago). As I traveled around the state teaching about Justice Reinvestment, I could scarcely get the revocation-limitation rule out of my mouth before someone would ask, “What do you mean by new criminal offense?” I learned that the practice around the state is split roughly 50/50 on this point, with some districts choosing not to act on a probation violation based on a new criminal offense unless there is a conviction for the crime, and others willing to consider pending charges in the probation hearing in certain circumstances. I don’t think either approach is wrong.

Let me do my best to sum up the rule that emerges from a patchwork of cases decided over the past century. A person’s probation should not be revoked based on a new criminal offense unless he or she is convicted of that charge, State v. Guffey, 253 N.C. 43 (1960), or unless the probation court makes an independent finding, to its “reasonable satisfaction,” that the defendant committed a crime, State v. Monroe, 83 N.C. App. 143 (1986). Probation should never be revoked based on the mere fact that a new criminal charge is pending; rather, there must be a conviction or some inquiry by the probation court into the alleged criminal behavior itself.

It is apparently permissible for the probation court to find that a probationer has committed a new criminal offense regardless of the State’s decision to drop the new criminal charge, see State v. Debnam, 23 N.C. App. 478 (1974) (upholding the trial court’s revocation of a nolle-prossed charge), or to not bring a charge at all, see Monroe, 83 N.C. App. at 145–46. There is support for the idea the probation court may revoke probation based on its independent findings of a criminal act even if the defendant is acquitted of the new criminal charge, see State v. Greer, 173 N.C. 759 (1917) (holding that a jury verdict acquitting the defendant of a new criminal charge was not binding on the probation court so long as he found facts based on the evidence before him), but the appellate courts themselves describe it as against the better practice, see Debnam, 23 N.C. App. at 481 (“It may not be desirable for a judge to activate a suspended sentence upon conduct where a jury has found the defendant not guilty of a charge arising out of that conduct, but it appears to be within the power of the judge to do so.”). Revocation in lieu of or even in addition to a new criminal conviction does not constitute double jeopardy; the probation revocation is not new punishment for the same act, but rather the activation of a punishment previously imposed for conviction of a prior crime. State v. Monk, 132 N.C. App. 248 (1999).

I used to advise people—probation officers in particular—that they could avoid some of the difficulties of the “new criminal offense” condition by proceeding on technical violations related to the behavior instead of the alleged crime itself. For example, a defendant charged with impaired driving might also be violating the “not use, possess, or control alcohol” condition. A person charged with possession of firearm by a felon might also be violating the “possess no firearm” condition. Case law supported that approach, State v. Coffey, 255 N.C. 293 (1961) (rejecting a defendant’s argument that his probation could not be revoked for the technical violation of possessing alcohol while criminal charges were pending based on the same behavior)—even for defendants acquitted of the related criminal act, see State v. Causby, 269 N.C. 747 (1967) (upholding a revocation based on a violation of a “possess no alcohol for any purpose” condition despite the defendant’s acquittal on a new illegal possession of alcohol charge). That approach worked fine under the old rule that the court could revoke probation for a violation of any single condition of probation. State v. Braswell, 283 N.C. 332 (1973). After Justice Reinvestment, however, the technical violation isn’t enough; the court can only revoke based on the new criminal offense itself.

As a result, I have heard that certain things that used to be handled as technical violations are now being treated as violations of the commit no criminal offense condition. For instance, a probationer with a positive drug screen might be said to have committed the criminal offense of possession of a controlled substance, or a probationer who fails to appear for a violation hearing might be said to commit the crime of failure to appear under G.S. 15A-543. Monroe, cited above, supports that general line of thinking. With respect to the drug screen scenario, however, the supreme court has said that a positive test for marijuana does not, without more, constitute substantial evidence sufficient to prove that a defendant knowingly and intentionally possessed marijuana. State v. Harris, 361 N.C. 400 (2007). That was, of course, a criminal case, and our appellate courts may treat a probation violation differently. But even in the context of a suspended sentence, it seems that any “independent finding” of a new criminal offense must be a finding of behavior that clearly constitutes a crime. See State v. Hardin, 183 N.C. 815 (1922) (setting aside a trial court order activating a suspended judgment when the probationer’s alleged criminal act, possessing 150 gallons of wine, was not a crime at the time).

A related question that has come up is whether the prohibition on revocation solely for conviction of a Class 3 misdemeanor (set out in G.S. 15A-1344(d)) survives Justice Reinvestment. It seems to me that it does. The new rule saying that a court may revoke for a violation of the commit no criminal offense condition does not trump or really even conflict with the existing rule that probation may not be revoked solely for a Class 3 misdemeanor. The Class 3 misdemeanor provision is just an exception to the general rule—as it has always been.

I’d be interested to hear your thoughts about how the JRA has changed local practice on this issue, if at all.