Today’s post picks up where my last post left off, with answers (my answers, at least) to more frequently asked questions about post-release supervision.
What will life on PRS be like? It will be a lot like probation—which is something to keep in mind if the defendant requested an active sentence to avoid probation. The conditions of supervision will be set by the Post-Release Supervision and Parole Commission, not by the court. Every supervisee will be subject to a condition that he or she not commit another crime. G.S. 15A-1368.4(b). The Commission may add other conditions it believes are “reasonably necessary to ensure that the supervisee will lead a law-abiding life or to assist the supervisee to do so.” G.S. 15A-1368.4(d) and (e) set out appropriate reintegrative and controlling conditions, respectively. They include things like having a job, completing treatment, not using drugs, paying court costs, and submitting to warrantless searches by a post-release supervision officer. (Unlike probation, for post-release supervision there is no statutory provision for warrantless searches by a law enforcement officer.) Special conditions apply to sex offenders. G.S. 15A-1368.4(b1).
For what types of violations can I be revoked? As described in this prior post summarizing the PRS violation hearing process, the Justice Reinvestment Act limited the Commission’s authority to revoke PRS in much the same way that it limited judges’ authority to revoke probation. PRS may be fully revoked only for a new criminal offense or absconding, or for any violation committed by a person under supervision for a reportable sex crime. G.S. 15A-1368.3(c)(1). For all other violations, the supervisee may be reimprisoned for three months, and then re-released onto PRS. (DAC and the Commission sometimes refer to those 3-month reimprisonment stints as “CRV,” though that statutory terminology applies only to imprisonment for technical violations of probation.) Reimprisonment tolls the term of supervised release. Id. For example, if a defendant violates PRS 10 months into a 12-month term of supervision and is reimprisoned for three months, he comes out of prison with 2 months remaining on the term of supervision. Time does not run on the supervision period while he is behind bars. However, once the defendant has served his entire maximum term of imprisonment, the sentence is considered terminated, G.S. 15A-1368.2(f), and there is no further release to supervision, G.S. 15A-1368.3(c)(1).
If my PRS is revoked, do I get credit against my remaining term of imprisonment for the time I spent under supervision? No. Unlike some other states, North Carolina does not allow credit for what is sometimes called “street time,” the time a person a person spent under supervision in the community. To the contrary, G.S. 15A-1368.3(c)(2) expressly provides that a supervisee “shall not receive any credit for days on post-release supervision against the maximum term of imprisonment imposed by the court . . . .” So, if you have a 9-month term of PRS with 9 months of imprisonment hanging over your head, and you violate and get revoked in month 8, you go back to prison for 9 months, not 1 month.
How does PRS work if I am serving multiple sentences? In general, a person convicted of multiple felony offenses will serve only one period of post-release supervision upon his or her release. If the sentences were set to run consecutively, one PRS term will remain at the end of the aggregate term by virtue of the single sentence rule, described in detail here. The length of that sole PRS term will be dictated by the longest term applicable to the defendant’s multiple convictions (9, 12, or 60 months, depending on the offense class and whether the defendant is a sex offender). Occasionally a defendant will be subject to concurrent sentences that include a mix of non-PRS (i.e., pre-2011) and PRS-eligible felonies, and for which the term of imprisonment for the non-PRS sentence actually extends beyond the PRS-eligible one(s). If that happens, DAC and the Commission will hold the PRS term for the PRS-eligible offense in abeyance until the defendant is actually released from prison on the non-PRS case. Once a person is on PRS, the PRS term generally runs concurrently with any other federal or State prison, jail, probation, or parole term to which the person becomes subject. G.S. 15A-1368.5.
What is the deal with PRS for drug trafficking crimes committed between December 1, 2011 and November 30, 2012? When the General Assembly amended the felony sentencing grid in 2011, increasing felony maximum sentences to account for the expansion of post-release supervision, it did not increase the statutory terms of imprisonment for drug trafficking set out in G.S. 90-95(h). The legislature fixed the problem for offenses committed on or after December 1, 2012, but when I wrote about the issue here in 2012, I was unsure how DAC and the Commission would treat cases falling in the gap year. I have since learned that if there is not a full complement of “extra” time built into the maximum sentence for PRS (9 extra months for Class F, G, and H trafficking, and 12 extra months for Class C, D, and E trafficking), then they will not give the defendant any post-release supervision at all. I have heard that some judges have addressed the issue by adding extra time to the maximum themselves, but I don’t know of any legal basis for doing that. The applicable statute for that time period prescribed a particular sentence, and I think that’s what the court is obliged to use, even if it makes administration of PRS difficult. I would be interested to hear from readers with practical experience with cases from this time frame to learn more about how things played out.