The Justice Reinvestment Act: An Overview

linkedin
Share on Google+
Share on Reddit
Share on Tumblr

The Governor signed the Justice Reinvestment Act (S.L. 2011-192 (H 642)) into law last week. It makes substantial changes to the law of sentencing and corrections in North Carolina—easily the most sweeping changes to Structured Sentencing since its passage in 1994. I’m working on a detailed bulletin on how our sentencing laws will operate after Justice Reinvestment, but I wanted through this post to give a brief summary of some of the major changes. Here’s what the law does (with almost everything effective December 1, 2011):

Lessens the distinction between community and intermediate punishment. The law retains the community/intermediate/active (“C/I/A”) framework on the sentencing grids but redefines what community and intermediate punishment mean. Under the new law, a community punishment will be one that includes supervised or unsupervised probation and any condition of probation except drug treatment court or special probation. The only requirement for a punishment to be intermediate under the new law is that it include supervised probation; no longer will the court be required to impose one of the six intermediate conditions (special probation, residential program, house arrest with electronic monitoring, intensive supervision, day reporting center, or drug treatment court) to make a sentence intermediate.

Expands the authority delegated to probation officers, including authority to impose brief stints in jail. Through delegated authority, probation officers will be empowered to impose new conditions of probation in both community and intermediate cases, including brief stints of jail confinement. The jail confinement condition is limited to 2- or 3-day periods that total no more than six days per month, and they may only be imposed during any three separate months of the period of probation. (So, the most jail time an officer could impose through the condition in a single probation case would be 18 days.) The officer can only impose the jail condition if the offender waives his or her right to a hearing and counsel. Unlike other delegated authority provisions, an offender ordered to jail through a probation officer’s exercise of delegated authority has no statutory right to have the action reviewed by a court.

Repeals intensive supervision. Under current law, intensive supervision is the most commonly used intermediate sanction; it accounts for over half of all intermediate conditions imposed. The new law repeals the definition of intensive supervision and the statutory special condition referencing intensive supervision. The law also repeals the definitions of “day-reporting center” and “residential program.”

Adds an “absconding” condition. The law makes it a regular condition of supervision for all probationers that they not “abscond, by willfully avoiding supervision or by willfully making [their] whereabouts unknown to the supervising probation officer.” A similar provision is added for post-release supervisees.

Limits a judge’s authority to revoke probation. Under the new law a court will only be allowed to revoke probation (that is, activate the entirety of a suspended sentence) for two specific types of violations: committing a new criminal offense and absconding. For other violations, the court will be limited to other existing non-revocation options (like imposition of a split sentence, for example) or a new response option allowing 90 days of confinement (or up to 90 days for misdemeanants). The court is not allowed to revoke probation for a non-absconding, non–new crime violation unless a defendant has previously received two periods of confinement under the new 90-day confinement provision.

Expands post-release supervision to all felons. Under current law, only Class B1 through Class E felons get post-release supervision. Under the new law, Class F through Class I felons will also be released on post-release supervision. The period of post-release supervision for Class B1 through Class E felons is increased from 9 months to 12 months, while the new period of supervision for Class F through Class I felons will be 9 months. (Except for sex offenders, who will all be subject to a five-year supervision period.) The law adds time to all the maximum sentences on the sentencing grid (an additional 3 months for the Class B1 through Class E felonies and an additional 9 months for the lesser felonies) to account for the fact that inmates will be released 12 and 9 months, respectively, before attaining their maximum. (The law does not, however, make any changes to the minimum sentences set out on the front of the sentencing grid.)

So, for example, what used to be a 6 to 8 month sentence for a Class H felony will now be a 6 to 17 month sentence. The inmate would be released from prison on the date equal to his maximum sentence less 9 months, less any earned time (so, sometime between 6 and 8 months), to serve 9 months on post-release supervision. If revoked, the inmate would have 9 months to serve.

Limits the Post-Release Supervision and Parole Commission’s authority to revoke post-release supervision. In much the same way that the law limits a court’s authority to revoke probation, it limits the Parole Commission’s authority to revoke post-release supervision to supervisees who abscond or commit a new criminal offense, or who are sex offenders. Other supervisees may be returned to prison for only three months at a time, after which they must be released back onto post-release supervision unless they have completed service of the time remaining on their maximum imposed term.

Amends the habitual felon law. Under the new law habitualized felonies will be sentenced four classes higher than the principal felony for which the person was convicted, but never higher than Class C. That means a habitualized Class I felony would be sentenced as a Class E felony (which, depending on the defendant’s prior record level, might for the first time raise the possibility of a probationary habitual felon sentence) and a habitualized Class H felony would be sentenced as a Class D felony. Any more serious felony would be sentenced as a Class C felony, just as under current law.

Adds a new “habitual breaking and entering status offense.” The law creates a new habitual B&E “status offense” that a prosecutor may, in his or her discretion, charge upon a person’s second conviction for a felony B&E (defined to include first- and second-degree burglary, breaking out of a dwelling house burglary, breaking or entering buildings generally, breaking or entering a place of worship, or any substantially similar crime from another jurisdiction). If habitualized, that second strike is sentenced as a Class E felony.

Makes G.S. 90-96 probation mandatory for eligible defendants. The law changes the eligibility criteria for discharge and dismissal of certain drug crimes under G.S. 90-96(a). On the one hand it limits eligibility by excluding defendants with prior felony convictions of any kind. On the other hand it expands eligibility by allowing discharge and dismissal of any felony drug possession crime under G.S. 90-95(a)(3), regardless of substance or amount. Most significantly, the law then provides that any eligible defendant “shall” (replacing “may”) be placed on probation without entering judgment of guilt. The law makes parallel changes to the expunction provisions set out in G.S. 15A-145.2.

Allows for “Advanced Supervised Release.” Certain felons convicted of Class D through Class H offenses will be eligible for early release from a prison term under a new statutory provision entitled “Advanced Supervised Release” or ASR. Regardless of the actual sentence imposed, the offender will have an opportunity to be released from prison upon serving the shortest possible mitigated sentence he or she could have received for the offense (or 80 percent of the imposed minimum if the defendant received a sentence from the mitigated range in the first place). To get released at the ASR date the inmate must complete risk reduction incentives created by DOC, such as treatment, education, and rehabilitation programs (or be unable to complete such incentives by no fault of his own or her own). The law appears to limit eligibility for ASR to defendants approved for risk reduction incentives by the sentencing judge, without objection from the prosecutor.

Eliminates the Criminal Justice Partnership Program (CJPP). The law repeals CJPP and replaces it with the centrally-administered Treatment for Effective Community Supervision program.

Requires most misdemeanants to serve their sentences in jail. The new law requires that all felony sentences and misdemeanor sentences requiring confinement of more than 180 days be served in DOC. The law retains the rule that sentences of 90 days or less should be to the local jail. The law establishes a new program for misdemeanants other than impaired drivers with sentences that require confinement of 91 to 180 days. Those inmates will be ordered to confinement pursuant to a new “Statewide Misdemeanor Confinement Program” administered by the North Carolina Sheriffs’ Association. The Sheriffs’ Association will place covered inmates in jails that have volunteered space for the program. The costs of housing and caring for covered misdemeanants will be paid by a statewide fund pursuant to the terms of a contract between DOC and the Sheriffs’ Association.

The rules for service of a DWI sentence continue unchanged. Under G.S. 20-176(c1), a DWI sentence must be served in the jail unless the defendant has previously been jailed for a Chapter 20 violation, or unless it is the defendant’s second or subsequent DWI.

I hope you’ll take a look at the law and post comments with your thoughts.

36 comments on “The Justice Reinvestment Act: An Overview

  1. Thank you for this post. It does a fantastic job of summarizing the new law, a law which dramatically changes the face of the NC criminal justice system, seemingly for the better.

  2. [...] Thanks to Jamie Markham, writing for the UNC NC Criminal Law Blog, the following is a summary of the law.  I highly recommend reading the full post HERE. [...]

  3. This law is horrible. It appears to eliminate Intensive Probation (one of the few probationary things I was happy with), makes it even more difficult to revoke probation, and completely eliminates determinate sentencing by creating “Advanced Supervised Release”. The reason why we have had a drop in crime is simple: the criminals are locked up. This is truly turning out to be a weak on crime legislature.

  4. Yeah, potential class E for 2nd B&E, potential felony DWLR, expanded level 1 dwi situations, good faith exclusionary rule; sounds like a real weak on crime legislature to me.

    • I would gladly give up all those things you mentioned if I could get back

      1. the ability to revoke probation for repeated failed drug tests and refusal to comply with even the most basic terms of a probationary sentence. Defendants can sit on their rears all day long, while refusing to get a job, attend school, go to their treatment programs, all without any fear of revocation. Defendants now have to actually *work* to get their probation revoked (by actively absconding or committing new crimes).

      2. the tools to lock up repeat offenders who do nothing but commit more crime, costing our society countless millions in dollars while tying up court time and resources. This is the *second* break the legislature has given Habitual Felons, the first one was in 2009 when the shaved three years off the class “C” grid. Habitual Felon in this state was a joke to begin with (when compared to other states). It has now moved beyond that to just pitiful…

      3. the ability to make a defendant prove they want to change their ways by successfully completing Intensive Probation, with its stricter requirements. Nothing shows a stronger commitment to rehabilitation then successfully jumping through all of the hoops that intermediate sanction provided.

      4. the consolation of being able to tell a victim that, under no circumstances, will a defendant get released from prison before the specified minimum term was completed. Structured Sentencing gave us ridiculously lenient sentences, but it was at least backstopped by the minimum term. I could always tell a victim that the upside of this weak sentencing is that at least the criminal will serve every day of that minimum term. Advanced Supervised Release completely removes that assurance. I, along with the victims, will have no idea when a criminal will actually be released. I can no longer tell the victims that they will be safe from this guy for at least x number of months.

      So, defender, I would gladly trade a whole whopping *two* new felonies, some more posturing on DWI sentences (because it is a rare day when a DWI defendant gets an active sentence, of which maybe a quarter of it will actually be served), and a “good faith” exception that the NC SupCt will likely hold unconstitutional anyway, just to get back the tools I need to effectively protect the citizens of my community. This legislature is weak on crime, period.

      • I forgot this part of my rant:

        At least the legislature gave us the Castle Doctrine, Stand your Ground, and expanded scope for CCH permits; because at this rate, the only thing protecting the law abiding citizens from the criminals is going to be the citizens themselves…

        • I’m with you Prosecutor. This is going to be a mess for those of us who work in the system and I think if the citizens knew the details they would be outraged.

      • Well One thing is that the Prosecutor states that people charge as a felon are tying up the court system what about all the people being charged for petty crimes who didnt even do the cime I myself was locked up and charged for a crime I didnt do, it was dropped when I went to court because of the person who pulled the charges didnt show up, it happens all the time here in Nc you can go and have someone locked up with just the name of the person and your word what ever happened to proving they did the crme before locking them up I love the new law on probation the fact that I can smoke all the weed I want and only do 2-3 days at a time for it is great!, The fact is way more People in Nc smoke pot then they would like to tell people, I have been here in Nc for over 11 years and everyone I have met from school teachers to lawyers to even probation officers have snoked pot or done pills [editor's note: text removed for clarity]…..and what about all the Lawyers that are always out of court for some “reason” we all know half of them do coke…….at the end of the day anyone who works in the courts et mad when the law changes I say If all you do while on probation is smoke weed so what, if you rob. steal rape, murder then its a big deal if you do coke, meth, or even pills its a big deal, but they make a bigger deal out of weed…..WHY?….when its already legal in 13 other states but we still sheild ourself from the fact that this one drug could help the whole U.S.A get out of debt, we could make paper clothes and even help people with pain and other problems, but we still push the pill form of drugs onto people every day and some drugs cost the elder a whooping $300 for one bottle of the meds they need when they could get a oz. of weed and be good all month for only $100………and for those who want to act like Im a dumb stoner I finished High School with a 4.0 GPA and smoked everyday, I went to college for Computer tech and finished with a 4.0 GPA and smoked everyday, [editor's note: text removed for clarity]

  5. Does this law apply to the people already in prison

  6. Thank you for the summary Jamie, very informative. But this has turned out to be horrible. You can honestly tell this was done in a very hurriedly manner, with the thought process obviously stopping at some point prior to reasoning this out. Before these bills are passed why can they not create a committee of those affected and have those individuals provide input as to what the outcomes of their cursory ideas will entail???

    God Save the State and this honorable land!

  7. i would like to know the same thing.if it does not affect those already in doc how is it possibly going to help over crowding?there will be more inmates coming into doc,yet none giong out still.

  8. I have met with Senator Hagans’ office, I have tried to
    reach my congresswoman to no avail, Today I reach out to
    you governor Perdue because North Carolina is about to have
    a crisis on their hands. With the state closing four
    prisons and the unemployment at an alarming rate crime is
    going to rise. I am an author and former addict, Today I
    counselor women/men at local shelters. My foundation is
    called Helena’s House named after my friend who lost her
    battle to breast cancer last year. I am trying to create a
    law that instead of locking up first time offenders we need
    an alternative and that is why we need Helenas’ House.
    First time offenders will have the opportunity to complete
    a an intense 6,9 or 12 month program depending on the crime
    they committed this program will teach etiquette, basic
    lives skills, self worth and most importantly prepare them
    for a career via college courses and or a trade from a
    technical school. I can help these individuals. Once you
    lock these ppl up they will have a record and be
    unemployable. Let’s try something different. I am a 42 yrs
    old and worked as an accountant for 19 yrs off my life but
    I can not get a job because of an non violent offense from
    ten yrs ago. Also we need to have individual with criminal
    records (non violent) expunged after 10 yrs. My program
    will require each person to obtain a GED or High school
    diploma.Some people need rehabilitation not jail. Since we
    are closing 4 prisons why can’t we utilize one of the
    buildings for this project. Ths will change lives and
    reduce crime in the communities. I also think its time we
    gave businesses incentives to hire 1st time non violent
    offenders I understand we have federal bond insurance via
    ncesc but many do not know about this, please consider what
    I am saying. Give us a chance via one of these grants. I
    have several women/men ready to come aboard you can learn a lot from a book , but you learn more from survivors and
    that is what the indiviuals at Helenas’ House are equipped
    with. I have a proposal and would love to meet with someone
    regarding this matter. Time is of the essence. We need to
    knock down these debilitating buildings in our neighbors in
    NC and truly be the show me state by doing something that
    will actually change someones’ life. Pls contact me , my
    husband has worked for the DOC for 13 yrs and there are
    truly inmates that do not need to be behind bars, and our
    correctional officers are already overwhelmed and
    undercompansated. I voted for you, along with a lot of my
    family members. We need a change pls let’s start here. 919-
    744-8320. Thank you in advance for your support

  9. why did the legislators write in the exclusionarybclause for previously sentenced prisoners?

  10. Does the ability to 90-96 simple felony possession of cocaine go into effect for offenses committed on or after 12/1/2011, or for sentencing on or after 12/1/2011?

    • or another date?

  11. Pete Hoffman: The changes to G.S. 90-96 are effective for persons entering a plea or found guilty on or after January 1, 2012. And remember it’s not just the “ability” to 90-96 it–it’s mandatory after that date for an eligible, consenting defendant.

  12. I have 4 questions regarding these new laws:
    1. Is this law retroactive?
    2. What effect, if any, will it have on those already incarcerated.
    3. Did the legilature word it specifically so that currently incarcerated inmates will not be able to get back in the courts to get some type of relief?
    4. Are there any specific amendmendments effecting first time, non violent habitual felons?

  13. WILL A DEFENDANT BE REQUIRED TO PAY A JAIL FEE DURING A 90 CRV OR QUICK DIP?

  14. The I feel that the Reinvestment Act was simply a slap in the face of people already incarcerated under the previous law.. it offers them NOTHING… I see No way this can really work since it does not offer any present relief.

  15. What are the different types of probation levels in NC and what class of offenders are generally places on level 2 status.

  16. cAn someone help me my husband its in fed case for poss of cocaine supossibly fighting 20 yrs in fed prison please can someone tell me a way his sentence to reduce or some help

  17. i work in the prison and this law is costing the state and wasting time of state employees it should be repealed another case of beverly perdue [redacted by editor].

  18. We are having much debate in court over whether “absconding” existed prior to 12/1/11 and if a defendant either a) absconded prior to this date or b) was placed on probation prior to this date can be revoked for absconding at any time during their supervision period. (Specifically speaking to cases where the offender was placed on prior to 12/1/11, then absconded from supervision).

    I understand that the JRA made it very clear that not absconding is a regular condition of Probation, but can you point me to any case law or any area in the General Statutes to assist us (the Probation Officers) with this defense in court?

    We are seeing many of our clients who have absconded (sometimes for years, often on more than one occasion) be continued on Probation based on the arguement that it wasn’t possible to abscond from Probation prior to 12/1/11 because “the Statutes didn’t tell you not to.”

    We all know that many offenders were previously revoked for absconding prior to the JRA and that it is not a new invention of the JRA, any assistance would be appreciated. Thank you!

  19. My boyfriend is currently serving a 34 month sentence for a non-vilolent offense. He has done 19 months already, however we have been hearing so much about the justice reinvestment act, and I just wanted some clarification as to would he be elgible for the advanced supervised release. He has taken classes, he’s in minimum custody, up for review to be level 2, and he is infraction free. Any information that you could give would be most appreciated. Thank you in advance

    • Have you found out anything about this law. I am kind of in the same situation

  20. does this law mean that a sex offender who was incarcerated before the JRIA was enacted will be required to be on a 5 year supervised probation? (class f)

  21. How is “committing a new criminal offense” defined? Must it be shown by conviction or guilty plea?

    • If you are CONVICTED of a new charge they will make u do your suspended sentence. I just got released from the CRV program for not paying my fines. While I was in prison for that my PO violated me again for being convicted of a misdemeanor in District court the same day I went to Superior and got told I had to do the 90 CRV. I got time served for the misd. but I got released this week and have to go to court next week and have to go do my whole time which is 30-36 months. And the Facility I was at is overcrowded with inmates doing the CRV program. I am a female and they were bringing in 10-15 new females a week. They normally house CRV inmates separate from regular population but they ended up having to move women around and make another dorm for CRV.

      • I am going through same thing now, i am a guy and my paroke officer even harrased me “whilw” i was in prison, ugggggggh???? what can a person do??? i am to be taken “back” to prison friday morning April 25 2014 for NOT paying my fines………

  22. Why is it that the non-violent habitual felons that were incarcerated before 12/01/11 cannot receive any relief from this law? Most of them are drug addicted offenders that have committed mostly property crimes like B&E to vehicles to support a drug habit. These people are SICK and need treatment; they do not need to be locked away for decades to please people with no compassion or understanding about addictive behaviors. I am sure that many of your readers will NOT agree with my post and that’s alright but that is my opinion as they have expressed theirs. People tend not to care about a situation unless it affects them in some way

  23. My brother was convicted of indentity theft and other things and plea for 24 mos jail time with 350000 or so in restitution. Needless to say, he cannot pay back such a sum. I have a hard time believing this plea me the requirement of “reasonable”but it did. He has been on probation now for 10 yrs this August. He has not broken the law. Has struggled to pay much back. He has been “dipped”once by Judge Fitch of Wilson Co. What is the worst case scenario as he approaches the end. There is no money and no way to make a significant dent in the restitution. Can the Judge enact his full sentence or can we bank on the wording of the law that there are only 2 ways the judge can revoke…absconding and breaking the law. PLEASE Help

  24. i would like to know the same thing.if it does not affect those already in doc how is it possibly going to help over crowding?there will be more inmates coming into doc,yet none giong out still.

  25. My husband was charged with a Class C felony and it was his first time being in trouble. He had other charges as well but shouldnt he be elligable for the 90-96. he got sentenced to 20 years in DOC. I dont understand any of this and no one will help me. can someone please HELP me

  26. […] states have recently passed sentencing or prison reform legislation (Oregon in 2013; North Carolina in 2011; Pennsylvania in 2012; Hawaii in 2014). Prior to passing its reforms, North Carolina was looking […]

  27. […] states have recently passed sentencing or prison reform legislation (Oregon in 2013; North Carolina in 2011; Pennsylvania in 2012; Hawaii in 2014). Prior to passing its reforms, North Carolina was looking […]

  28. […] states have recently passed sentencing or prison reform legislation (Oregon in 2013; North Carolina in 2011; Pennsylvania in 2012; Hawaii in 2014). Prior to passing its reforms, North Carolina was […]

Leave a Reply

Your email address will not be published. Required fields are marked *


8 × = sixty four

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>