The Absconding Donut Hole

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In 2012, a person on supervised probation for an offense that occurred before December 1, 2011 moves to another state without permission. Months later he is arrested there and brought back to North Carolina for a violation hearing. May he be revoked for absconding? I don’t think so. This post discusses why.

Effective for offenses committed on or after December 1, 2011, the Justice Reinvestment Act made it a regular condition of probation that a defendant not “abscond, by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising probation officer.” G.S. 15A-1343(b)(3a). The new regular condition is the first true absconding condition in North Carolina. In fact, aside from a brief mention in the Crime Victims’ Rights Act (G.S. 15A-837), it is the first use of the word “abscond” in the criminal law statutes. Previously, offenders alleged to be “absconders” were generally violating one of two statutory conditions of probation: the “remain within the jurisdiction” condition or the “report as directed . . . to the officer” condition. The absconding terminology was derived from Community Corrections policy, not the law. The new absconding condition was initially made effective for “probation violations occurring” on or after December 1, 2011. S.L. 2011-192, sec. 4.(d). But that didn’t make sense—how could a condition become effective only upon a violation of it?—so the effective date clause was amended by a technical corrections bill to make the law applicable to offenses committed on or after December 1, 2011. S.L. 2011-412, sec. 2.5.

One of the major changes made by the JRA is that the court can only revoke probation for violations of the “commit no criminal offense” condition, absconding, or for probationers who have already received two periods of confinement in response to violation. The statutes setting out courts’ revocation authority for absconders, G.S. 15A-1344(a) and -1344(d2), both refer explicitly to violations of the new statutory absconding condition, G.S. 15A-1343(b)(3a), not to absconding generally. Thus, violations of other conditions (like the “remain within the jurisdiction” condition or the “failure to report to the officer” condition) appear to be ineligible for revocation, even if Community Corrections refers to them as absconders.

The problem, of course, is that thousands of probationers are not subject to the statutory absconding condition. As discussed in the opening paragraph above, that new condition only applies to probationers with offense dates on or after December 1, 2011—a cohort that is only recently starting to come onto probation in large numbers. With that in mind, in various JRA training sessions I have stressed the distinction between “statutory absconders,” who may be revoked, and “policy absconders” (people Community Corrections calls absconders but who are not subject to the statutory absconding condition), who apparently may not be revoked. You can listen to a discussion of the issue in this free webinar, presented to all probation officers in November 2011, beginning around the 31-minute point.

I have received lots of calls in the past two weeks about offenders falling in this “donut hole”—the apparent gap created by the effective date of the absconding condition and the wording of the statutes limiting judges’ authority to revoke. I’m not sure there’s much that can be done about it. Some have asked if the judge can add the statutory condition for an offender on probation for an offense that occurred before December 1, 2011, just in case the offender absconds in the future. Perhaps, although I think there would be a pretty good argument that, in light of the effective date for the new regular statutory absconding condition, any “don’t abscond” condition added to an older case is really just a special condition under G.S. 15A-1343(b1)(10), and still not a permissible basis for revocation.

None of this is to say that offenders not subject to the statutory absconding condition get a free pass. Violations of the “remain within the jurisdiction” condition or the “failure to report” condition are still technical violations eligible for confinement in response to violation (CRV), special probation, or some other modification of probation. And if the offender allegedly absconded before December 1, 2011, he or she would be eligible for revocation under the applicable prior law; the JRA’s limits on judges’ revocation authority only kicked in for violations occurring on or after December 1, 2011. So, if an offender who disappeared a long time ago turns up now, he or she may not fall into this so-called donut hole at all.

Even for offenders actually subject to the new statutory absconding condition, it is not entirely clear from the language of the condition itself what it means for a probationer to avoid supervision, or how long a person’s whereabouts must be unknown before he or she becomes an absconder. I think those thresholds will, to some degree, be shaped by other conditions to which the probationer may be subject and by the contact frequency standards associated with his or her supervision level. Additionally, probation officers are still required as a matter of their internal policy to conduct a specialized investigation before declaring that an offender has absconded. That investigation includes attempting to contact the offender by telephone, visiting the offender’s residence in the daytime and in the evening, contacting the offender’s landlord and neighbors, visiting the offender’s workplace or school, contacting the offender’s relatives and associates, and contacting local law enforcement, including the jail. Section of Community Corrections Policy § E.0503.

4 comments on “The Absconding Donut Hole

  1. […] The court even analogized—to my admitted personal delight—to the other donut hole recently discussed on this blog and confirmed by the court: the absconding donut hole. (Speaking of which, I beamed with pride when […]

  2. […] wrote previously (here and here) about the “donut hole” in the probation law regarding absconding. In short, due to a […]

  3. […] or she is not actually subject (like an absconding violation by a probationer who falls within the absconding donut hole). Sometimes, an alleged violation is rolled into a plea negotiation where State agrees not to go […]

  4. If someone was put on supervised probation for a total odf 18 months for 3 dwlr charges in 2 different counties between 6-2007 and 1-2008 but absconded once and turned themselves in late 2009, posted a 5000 cash bond and had a court date and was told by their probation officer that they would be activating their suspended sentence of 90 days. They didn’t go to court the next day because they had never been to jail and was scared. So they absconded again and have been an absconder to this day. They were originally charged with the 3 counts of dwlr for unpaid seatbelt and inspection sticker tickets. This is the only trouble they have ever been in and haven’t been in any trouble or any new charges since. They were not able to do the community service when probation officer wanted, which was within the first month due to having had a baby a few months before and no one to watch the baby. Was told by community service coordinator that for whatever reason the judge had not set a time frame of when the 30 hours needed to be done by, but probation officer was not willing to work with them so they could find a way to do it and find someone to watch the baby. Is their anything that could be done to avoid the jailtime because of having the last 8 plus years by themselves away from their family, no license, no job, and cant finish college they have been ready to turn themselves in because their life has become pure miserable always worried they’re going to jail. Could house arrest be an option? Could it be dismissed because of how long ago its been and they haven’t been in any trouble since and it was for 3 unpaid traffic violations? Any advice would be greatly appreciated. Thank you.

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