A frequently asked question of late is whether a judge may still impose special probation (a split sentence) in a probation case. Apparently the question arises out of a sense that the new forms of confinement created by the Justice Reinvestment Act—short term confinement for 2–3 days (“quick dips”) and confinement in response to violation (CRV, or “dunks”)—are now the only proper form of probationary confinement.
Reports of the death of the split sentence are exaggerated. The new types of JRA confinement are certainly similar to a split sentence, but they are statutorily distinct and did not replace it. The statutes authorizing special probation, G.S. 15A-1351(a) for splits imposed at sentencing and G.S. 15A-1344(e) for splits imposed as a modification of probation, were not repealed or amended by the JRA.
Even if the split sentence laws are still on the books, I can think of reasons they might be used less frequently now. First, for offenses committed on or after December 1, 2011, the judge is not required to impose any particular conditions of probation to make the sentence intermediate as required by an “I” block on the sentencing grid. My sense is that under prior law, when the judge was required to impose one of the six intermediate conditions to make a sentence intermediate, a short split sentence (perhaps to time already served) was often the intermediate condition of choice. With that requirement gone, I suspect the number of splits may go down.
Second, CRV may be preferable to a split sentence (at least from the State’s point of view, generally speaking) because only receipt of two CRV periods qualifies a person for revocation based on an additional technical violation. A prior violation responded to with a split sentence does not count as a CRV “strike” setting a defendant up for eventual revocation. There may therefore be times when the prosecutor is inclined to ask for and the judge is inclined to impose CRV—even when 90 days might be a longer confinement period than anyone thinks is necessary.
But I don’t expect split sentences to go the way of the dinosaur any time soon. The court can do certain things with a split sentence that it cannot do with CRV. First, in felony cases, CRV is a bit of a blunt instrument: a felony CRV period must be 90 days, no more and no less (unless the defendant has less time than that remaining on his or her suspended sentence). A split sentence, on the other hand, may be as short as the court would like. Second, split sentences may be served in noncontinuous periods, like weekends—a popular way to allow defendants to keep a job or care for family. By contrast there is no statutory provision allowing CRV to be served in noncontinuous periods. And in the absence of such a provision, I tend to think CRV periods must be served continuously. See State v. Miller, 205 N.C. App. 291 (2009) (discussed here, holding that a judge lacks authority to allow a defendant to serve an active sentence on weekends in a Structured Sentencing case). Finally, a judge has more flexibility in terms of place of confinement with a split sentence. Under G.S. 15A-1351(a) and -1344(e), a split sentence for a may be served in prison, the local jail, or a designated treatment facility. The place of confinement for CRV, meanwhile, is dictated by where the defendant would have served an active sentence. G.S. 15A-1344(d2). Thus, felony CRV periods must be served in prison (DAC will send them to Dan River, Greene, Odom, Tyrrell, Western Youth Institution, or Fountain Correctional, depending on the defendant’s sex, age, and geographical location), and some misdemeanor CRVs should be ordered into the Statewide Misdemeanor Confinement Program. (I heard from some sheriffs this week that a fair number of felony CRVs are being served in their jails at county expense. As I read the law that should not happen.)
Another form of non-CRV confinement that may still be ordered after the JRA is contempt under G.S. 15A-1344(e1). That law says the court may hold an offender in criminal contempt for a willful probation violation, allowing up to 30 days of imprisonment for the violation. It should be noted, however, that any imprisonment ordered as punishment for the contempt counts against the defendant’s suspended sentence. State v. Belcher, 173 N.C. App. 620 (2005). I may write more about that law soon. It has an interesting legislative history.
So, CRV has not cornered the market on post-JRA probationary confinement. Other options are alive and well, but the calculus for determining which may be best in a particular case has changed. After more time has passed I’ll be interested to review some statistics to get a sense of how things are playing out. In the meantime, I’d love to hear from you about what is going on in practice.