Where to Serve a Sentence

Under existing law, the basic rules for where a sentence should be served are as follows:

Misdemeanors, 90 days or less. If a sentence imposed for a misdemeanor is 90 days or less, it generally must be served in the jail. G.S. 15A-1352(a). There are exceptions for when the jail is overcrowded or the inmate presents security or medical risks. G.S. 148-32.1(a); G.S. 162-38 and -39.

Misdemeanors, 91 days or more. If a sentence imposed for a misdemeanor is 91 days or more, the judge can, in his or her discretion, commit the defendant to either the jail or to the Department of Correction (DOC). G.S. 15A-1352(a).

Caveat for Chapter 20 misdemeanors. Misdemeanor violations of Chapter 20 other than G.S. 20-28(a) (driving while license revoked), 20-141.3(b) and (c) (speed competitions), 20-141.4 (death or serious injury by vehicle), or a second or subsequent conviction of G.S. 20-138.1 (impaired driving), must be sentenced to the jail unless the person has previously been jailed for a Chapter 20 violation. G.S. 20-176(c1).

Felonies. Felons must be committed to DOC except the judge may, upon request of the sheriff or board of county commissioners, sentence the felon to the jail. G.S. 15A-1352(b).

The Justice Reinvestment Act (S.L. 2011-192) makes some changes to those rules, effective for sentences imposed on or after January 1, 2012. Here are the new rules for determining where sentences imposed on or after that date should be served.

Misdemeanors, 90 days or less. The law is essentially unchanged: misdemeanor sentences of 90 days or less must be served in the jail. The JRA did make some changes to G.S. 148-32.1, the law that sets out the exception to the 90-days-or-less rule for situations when the jail is filled to capacity, to make it a little harder for misdemeanants with short sentences to be transferred to DOC. The new version of that law says that a judge may, when the custodian of the jail certifies in writing to the clerk of superior court that the jail is full or does not meet administrative standards, order a defendant with a sentence of 30 to 90 days to serve the sentence in another jail. If no other jail is available, and then only if the reason for the requested transfer is that the jail in the county of conviction does not meet minimum administrative standards or cannot reasonably accommodate any more prisoners due to segregation requirements, an inmate with a sentence of 90 days or less can be assigned or transferred to DOC. As under existing law, defendants with a sentence of less than 30 days may not go to DOC.

Misdemeanors, 91 to 180 days. This is the group for which the JRA made the biggest change. Under new G.S. 15A-1352(e), a defendant with a sentence for a misdemeanor other than impaired driving that requires confinement for a period of 91 to 180 days must be committed to confinement pursuant to the new Statewide Misdemeanant Confinement Program (MCP). The MCP, described in new G.S. 148-32.1(b2), will provide housing for those misdemeanants at a jail that has voluntarily agreed to provide space for that purpose. Counties (or, presumably, groups of counties, in the case of the small number of regional jails around the state) willing to provide that space will enter into written agreements with the Department of Correction to do so. Those counties will be reimbursed by the state for the inmates they accept pursuant to the terms of those agreements; the intent of the General Assembly, set out in new G.S. 148-32.1(b3), is that the reimbursement will cover the costs of housing, care, supervision, and transportation. The logistics of the program, including placement of inmates into a jail offering space to the program, will be administered by the North Carolina Sheriffs’ Association, Inc. If no space is available in a willing jail, the Sheriffs’ Association can place the inmate in DOC under new G.S. 148-32.1(b4).

When considering whether a defendant is eligible for the MCP, it appears that the judge should look at each individual misdemeanor sentence in isolation. In other words, consecutive sentences probably should not be aggregated to determine whether the defendant falls within the MCP range. I say that because new G.S. 15A-1352(e), setting out the eligibility window, is phrased in the singular: “a sentence” for “a misdemeanor.”

Misdemeanor sentences requiring confinement for more than 180 days. If a sentence or sentences imposed require confinement for 181 days or more, the commitment must be to DOC under amended G.S. 15A-1352(a). In contrast to the 91-to-180-day MCP threshold, the 181-day threshold should be evaluated based on an aggregate of all the defendant’s misdemeanor sentences; the statute is phrased in the plural, and in any event no single sentence for a misdemeanor under Structured Sentencing could exceed 150 days.

Caveat for Chapter 20 misdemeanors. The JRA did not make any change to the Chapter 20 caveat described above.

Felonies. Under the new law (amended G.S. 15A-1352(b)), felons must be committed to DOC.

The JRA did not change the rule for the place of confinement for special probation (a split sentence). The judge can order a split to be served in DOC or a designated local confinement facility or treatment facility, with the caveat that noncontinuous periods of confinement must be served in a local confinement facility or treatment facility. G.S. 15A-1351(a). The JRA created two new split-like forms of short-term confinement, 2–3 day “quick dips” under new G.S. 15A-1343(a1), and confinement in response to violation under new G.S. 15A-1344(d2). The quick dip provision states that the confinement must be served in a local confinement facility, so that’s straightforward. The JRA itself did not set out a place of confinement for periods of confinement in response to violation (which are 90 days for felonies and up to 90 days for misdemeanors), but House Bill 335, which appears to be on track to become law without the governor’s signature in about 10 days, clarifies that the confinement will be served “where the defendant would have served an active sentence.” So, 90-day confinement for felonies will always be in DOC, and confinement for misdemeanors will be in the local jail, an MCP jail, or DOC, depending on the length of the suspended sentences in the cases in which probation was violated.