Another New Conditional Discharge: Threats and False Reports of Mass Violence

By the end of the year, we’ll have another type of conditional discharge to add to the list collected in my previous post. The new conditional discharge is for certain defendants convicted of communicating threats of mass violence on educational property or at a place of worship, or for making a false report concerning mass violence on educational property.

Session Law 2018-72 created two new communicating threats crimes, communicating a threat of mass violence on educational property (G.S. 14-277.6) and communicating a threat of mass violence at a place of religious worship (G.S. 14-277.7). Those crimes are effective for offenses committed on or after December 1, 2018.

The same legislation that created those crimes also added new G.S. 14-277.8, providing for a conditional discharge for certain defendants convicted of the new crimes or the existing crime of making a false report concerning mass violence on educational property (G.S. 14-277.5). Eligible defendants are those who are less than 20 years old at the time of the offense and who have no previous convictions of any felony or misdemeanor other than a traffic violation.

It is unclear whether the new conditional discharge is mandatory or discretionary. Subsection (a) points toward mandatory, saying the court “shall” defer further proceedings and enter a conditional discharge when an eligible defendant is convicted and the defendant and the district attorney consent. Subsection (b), on the other hand, says the court defers proceedings “in its discretion.” The likely intent was to create a conditional discharge that the court could utilize in its discretion when the State and the defendant consented, but the law doesn’t quite say that, and it’s hard to reconcile the “shall” with the language about the court’s “discretion.”

Some might argue that subsection (a) means the judge must order the conditional discharge when everyone consents, while (b) means the judge may order it whenever he or she wants, even over the objection of the defendant or the State. That doesn’t strike me as the most natural reading. Subsection (b) refers to proceedings pursuant to this section (not subsection), and only (b) spells out the details of the probation imposed as part of the conditional discharge. That leads me to think that (a) and (b) were meant to be of a piece, describing a single pathway for conditional discharge. But this isn’t the first time we’ve had questions about whether a conditional discharge is mandatory or discretionary (it’s still an issue in the granddaddy of all conditional discharges, G.S. 90-96(a), as discussed here), and it may ultimately take litigation (or a legislative fix) to figure this new one out, too.

If the court orders the conditional discharge, subsection (b) does, as I mentioned, set out some requirements for the probation that must be imposed. It has to be supervised by a probation officer and must be for at least one year. It must also include a requirement to complete 30 hours of community service, a mental health evaluation, and compliance with any treatment recommended as a result of that evaluation.

The legislation also creates a new expunction provision, G.S. 15A-145.7, for defendants who succeed on the conditional discharge and have their conviction dismissed. The defendant has to pay a $175 fee (unless he or she is indigent), file affidavits of good behavior and character, and complete a record check to determine eligibility.