Absconding from Probation

What does it mean to “abscond” from probation supervision? “Absconder” is not defined statutorily; rather, it is defined in Division of Community Corrections (DCC) policy as “an offender who is actively avoiding supervision by making his/her whereabouts unknown to the supervising officer.” DCC makes a searchable list of all absconders available to the public here (click on the absconder tab at the top of the page, and you can search by last name or by county). Statewide, there are about 12,000 probationers who have absconded probation – about 10% of all supervised probationers. That’s down from the 14,000 figure the News & Observer frequently cited in its “Losing Track” series, but obviously still a high number. One of the reasons the number stays so high is that district attorneys and DCC are disinclined to remove anyone from the list, even for cases that would have expired many years ago. Rightly so – as I’ll discuss in a minute, there’s no other way to retain jurisdiction over a probationer who might someday turn up. So, the 12,000-probationer list, which undoubtedly includes a good number of bad people “actively avoiding supervision,” probably also includes a fair number of low-risk folks who might have changed addresses, moved out of the state, gotten married and changed names, been hospitalized, or died. Regardless, it’s a bad situation for everyone, including court officials who have to explain why a handful of decades-old cases make it look like it takes 7 months to resolve the average probation violation. I digress.

Back to my original question: what does it mean to abscond probation? As I said, the General Statutes don’t really mention absconding at all, except in G.S. 15A-837(a)(6), which places on DCC a duty to inform crime victims within 72 hours when a victim has absconded supervision. That may be tricky, though, because a probationer doesn’t become an absconder the moment he or she misses a curfew check. Here are DCC’s policy requirements for declaring someone an absconder:

absconder-regulation

Suppose all these requirements are met and an officer files a report alleging that a person absconded. Is it a problem that hardly anyone has as an explicit condition of probation that says “don’t abscond”? No. Depending on the circumstances, absconding probably constitutes a violation of multiple conditions of probation – G.S. 15A-1343(b)(2) (remain within the jurisdiction), G.S. 15A-1343(b)(3) (report to a probation officer as directed), and other conditions in certain cases. And we know from a recent court of appeals case that notice of the offending behavior – even if not tied to a particular condition – gives a probationer sufficient notice of the alleged violation under G.S. 15A-1345(e). State v. Hubbard, __ N.C. App. __ (2009). Nevertheless, if a violation report alleges that a person absconded, it seems to me that the probation officer should be prepared to testify at the violation hearing that he or she fulfilled all the necessary administrative requirements before declaring the probationer an absconder.

Finally, note that absconder violations are not immune from the jurisdictional requirements that apply to all probation violations – even if the State is unable to hold the hearing before the period of supervision expires precisely because the probationer can’t be found. The requirement in G.S. 15A-1344(f) that the State file a written violation report before the probation term expires to preserve the court’s ability to act applies with equal force to absconders. State v. High, 183 N.C. App. 443 (2007). Under prior law, the fact that a person had absconded might have been relevant to the court’s determination of whether the State had made a “reasonable effort to notify the probationer and to conduct the hearing earlier,” but legislation passed last year (S.L. 2008-129) did away with that requirement for violation hearings held after December 1, 2008. So, cases like State v. Black, __ N.C. App. __, 677 S.E.2d 199 (2009) (holding that a court lacked jurisdiction to revoke a defendant’s probation after expiration when the State failed to make the requisite “reasonable efforts”), should, except for those already in the appellate pipeline, be a dying breed.