Anniversary Splits

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Special probation, commonly referred to as a split sentence, is a powerful sentencing tool. It allows the judge to impose a mix of imprisonment and probation that can achieve multiple goals. For example, a short amount of imprisonment can satisfy retributive aims, while the accompanying term of probation can promote rehabilitation in the community. Jail days can be served in non-continuous intervals, such as weekends, which can help defendants complete imprisonment in a way that allows them to keep a job or satisfy family obligations.

Sometimes that flexibility is used to convey symbolic meaning. For instance, I occasionally hear about split sentences where a defendant will serve a day or two in jail on the anniversary of his or crime. One such case has been in the news lately in the eastern part of the state—a death by vehicle case where an impaired driver killed her passenger.

Those who wish to use special probation in that way should note a few technical wrinkles in G.S. 15A-1351(a).

First, as in any Structured Sentencing case, the total of all periods of special probation confinement may not exceed one-fourth of the maximum imposed sentence. Any suspended sentence for a felony would give the judge plenty of days to work with, but a shorter misdemeanor sentence may not. Note that the rule is slightly different for impaired drivers: their split-sentence imprisonment may not exceed one-fourth of the maximum penalty allowed by law for that level of DWI. G.S. 15A-1351(a).

Second, G.S. 15A-1351(a) states that for non-DWI sentences, “no confinement other than an activated suspended sentence may be required beyond two years of conviction.” The official commentary to the law explains that provision by way of example: “one of the weekends in jail an offender is supposed to serve could not occur in February, 1980, if he were convicted in January, 1978.” That rule obviously stands as a barrier to the long-term use of the anniversary-based confinement concept.

A potential way around that limitation would be to use split sentence confinement for the first two anniversaries after conviction, and then 2–3 day “dip” confinement under G.S. 15A-1343(a1)(3) for up to three additional anniversaries. Recall that dip confinement is only an option for non-DWI offenses committed on or after December 1, 2011. The two-year limitation does not apply to DWI sentences.

Finally, any noncontinuous period of special probation confinement must be served in a jail or treatment facility, not in prison. G.S. 15A-1351(a).

I don’t think anniversary-based sentencing is common enough to allow for any meaningful data collection on effectiveness, but there is a certain anecdotal appeal. As I once heard an experienced judge describe it, “Your split sentences don’t need to be long if you pick the right days.”

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