Changes to Post-Release Supervision for Sex Offenders

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I mentioned in my previous post that the Justice Reinvestment Act (JRA) is not the only new legislation that impacts post-release supervision (PRS). This post looks at S.L. 2011-307, which changes the way PRS applies to sex offenders. (I also mentioned that I would talk about post-release supervision for certain impaired drivers under Laura’s Law, but it turned out that I had so much to say about sex offenders that I decided to leave that for another day.)

Under existing law, the period of post-release supervision in the community is 5 years for Class B1–E offenders imprisoned for a crime that requires sex offender registration. But those offenders face only 9 months of active time if their PRS is revoked—only 9 additional months are built into their active sentences, and they are released from prison 9 months before attaining their maximum. Faced with a choice between 5 years of supervision in the community and 9 months in prison, some offenders opt for the latter. Under G.S. 15A-1368.2(b) a person technically cannot refuse PRS, but some offenders get around that by violating their conditions of supervision on purpose.

To put a stop to that, S.L. 2011-307 amends G.S. 15A-1340.17(f) to provide that for sex offenders convicted of Class B1–E felonies, the maximum sentence is 120 percent of the minimum, rounded to the next highest month, plus 60 additional months. The law then makes a parallel change to G.S. 15A-1368.2(a) to provide that those offenders will be released from prison onto PRS 60 months before attaining their maximum, less earned time. Thus, if they violate PRS, they can be returned to prison for the remaining 60 months—making it far less appealing to serve the prison time in lieu of community supervision.

That change does not apply to Class F–I felons convicted of reportable crimes—even though they will be subject to PRS pursuant to the JRA and will have 5-years of supervised release under existing G.S. 15A-1368.2(c). Even those offenders, though, will have an incentive to complete their PRS in the community under S.L. 2011-307. The new law provides that willful refusal to accept or comply with the terms of PRS is punishable as criminal contempt of court, with the Parole Commission empowered to act as a judicial official would under Chapter 5A. That would appear to mean that the Parole Commission could, after holding a plenary contempt proceeding under G.S. 5A-15 and finding beyond a reasonable doubt that an offender willfully refused to accept or comply with PRS, punish a person by up to 30 days imprisonment under G.S. 5A-12. The amended statute says that notwithstanding any other provision of law, any punishment for that contempt does not count for credit for time served against the underlying sentence. That may conflict with State v. Belcher, 173 N.C. App. 620 (2005), which held that a revoked probationer was entitled to credit for time spent jailed for contempt under G.S. 15A-1344(e1).

The new law also provides that any time spent imprisoned “due to the prisoner’s resistance to . . . release” must “toll the running of the period of supervised release.” “Tolling” in this context appears to mean that the offender’s period of PRS will be right there waiting for him when he gets released from prison, with no time having ticked off the supervision period in the interim—a further disincentive to any attempt to refuse PRS. The inclusion of a tolling provision in this law makes me wonder if a regular (that is, non–sex offender) offender’s period of supervision is tolled when he or she gets imprisoned in response to a non–new crime, non-absconding violation of PRS.

The law amends G.S. 15A-1354(b)(1) to subtract duplicate 60-month periods built into the aggregate maximum sentence for anyone sentenced for multiple reportable Class B1–E crimes. The amended law does not, however, reflect the changes made by the JRA regarding the subtraction of “second and subsequent” 9-month and 12-month duplicate PRS time out of the aggregate maximum. Read together, I think the changes probably accomplish the goal of having the offender serve a single PRS term of the appropriate length for whichever sentence requires the longest period of supervision (assuming that was, in fact, the goal), but it’s not clear.

When sentencing a Class B1–E sex offender, the court will need to add 48 months onto the maximum sentence set out on the back of the post–December 1, 2011 sentencing grid (the number on the chart will be 120% of the minimum plus 12 months, so an additional 48 months will need to be tacked on to get to 60). For sentencing geeks like me, the mere thought of adding time to maximum sentences sets off alarm bells: could this be an issue under Blakely v. Washington, 542 U.S. 296 (2004)? In general I don’t think it is. Sex offender registration typically flows directly from a conviction, and so no additional factual findings (that might trigger the Blakely rule requiring an admission by the defendant or proof to a jury beyond a reasonable doubt) would be required by a judge. A few offenses, however, are only reportable if additional facts beyond those inherent in the conviction itself are true. Kidnapping, for example, is only reportable if committed against a minor. G.S. 14-208.6(1m). It’s not a problem under Blakely for the court to make that factual finding for sex offender registration purposes because registration itself is not a criminal punishment. But to the extent that 48 months of additional imprisonment are at stake, it seems that Blakely might come into play.

The portion of the new law adding 60 months to the maximum sentences for Class B1-E sex offenders is effective December 1, 2011 and applicable to offenses committed on or after that date. The contempt provisions came into effect June 27, 2011, and apply to willful refusals to accept or comply with post-release supervision on or after that date.

30 comments on “Changes to Post-Release Supervision for Sex Offenders

  1. […] change in THIS post. Update 7/22/11: Jamie Markham at UNC’s SOG Criminal Law Blog posted THIS posting regarding the effect of the Act on post-release of sex offenders. […]

    • Hello, Jamie.
      Id like to ask: If a sex offender convicted in 08 “on 5 yr post release”, moving out of state will the five yr post release still be applied in the receiving state. How can the five yr post release apply if i was convicted in 08. TY

  2. “The law then makes a parallel change to G.S. 15A-1368.2(a) to provide that those offenders will be released from prison onto PRS 60 months before attaining their maximum, less earned time.” what does that mean for an offender subject to the 5 year provision that is currently incarcerated? I see that the contempt will apply. Does that also mean that those offenders will be released 60 months before attaining their max, less earned time-as in they should be released say in 9 years but under this would then be released onto PRS in 4 years? thanks for clarification.

    • angie l.: No, the portion of the law requiring release 60 months before the maximum is, like the portion adding that time onto the maximum, effective for offenses committed on and after December 1, 2011.

      • sorry that part really confuses me. I can’t see how the contempt starts in June 2011 if the release also doesn’t start then. how can they be returned to prison for 60 months if they aren’t released 60 months early? does that mean they get out 9 months early but can go back for 60 months if violate contempt provision?

  3. angie l.: I don’t think they get brought back in for 60 months for the contempt. I think they can only be imprisoned for 30 days for the contempt under G.S. 5A-12.

  4. If a sex offender sentenced under the law as stated in 1993 with 9 months to go before being released how does this apply?

  5. Can you clarify? Hypothetically, A sex offender under a current 60m supervision term, who has a balance of 9M left on there max sentence, violates there supervision 12 times over 36 months and serves a total of 120 Days served in Contempt. Under current legislation none of that 120 is credited towards there underlying sentence?
    This seems unconstitutional, if the offender has served a term of incarceration associated with a PRC period that exceeds there maximum sentence, are they not then being punished above and beyond the terms imposed by the original sentencing court?

    • AS a offender ,any added time to my original sentence would seem unjust and by law a right for appeal by me. I only wish to comply with the law, as well as my probation requirements. Changing the laws my well help the courts. It dose nothing for those of use that wish to get on with our lives, and (Try) to readjust to an ever changing society from the time we`ve already served.

  6. What about an inmate with a class C sex offense already serving his sentence? How can he be required to have 60 months of post release when the law didn’t come into affect until dec 2011? Is this law retroactive?

  7. I have similar question as Mike. IF an offender was convicted in 07/2005 for an offense which took place in 09/2003, how can he be required to serve an additional 5 years on supervised release without violating ex post facto laws? His judgement form clearly indicates he was sentenced with an additional 9 months for PSR. Even his parole officer stated there may be a mistake. Didn’t the 5 year requirement come into effect with House Bill 1188, which went into effect on April 01, 2006?

  8. The five year *supervision period* for sex offender post-release supervisees came into effect Dec. 1, 1996. http://www.ncleg.net/Sessions/1995E2/Bills/House/PDF/H53v4.pdf

    The increased *maximum sentence* for Class B1-E sex offenders came into effect Dec. 1, 2011, and applies only to offenses committed on or after that date.

    • I was convicted in 2010 of an offense in 2006 for which I served 57 months. Upon my release I was placed on 5 years parole, which I violated because I was convicted of new crimes (not sex offenses). I served another 25 months and was released again on the remainder of the five years post release supervision. The conflict to me is that I served the nine months for the parole violation that is referenced in the link on your post. My sentence is technically maxed out. Could you shed some light on this situation.

  9. That was exactly my point. How can an individual be “REQUIRED” to serve a parole sentence above and beyond the maximum term imposed upon him by the sentencing court???? If, he is released 9 months prior to the expiration of his active sentence, then his sentence EXPIRES at the 9 month timeline AND the parole commission has no authority to restrict his liberty… Please clarify this. I actually know a man in this situation — really would like to help him if possible.. thanks

  10. I was sentenced of a class C offense in January of 2005. My sentence only included 9 months post release , but they are forcing 5 years. What I understand that the new law that came out to impose all sex offenders to do 5 yrs mandatory is not to abate or change anything prior to the date of the law?

  11. I was sentenced to 94 to 122 months in feb of 2008 I was released on my min on nov 2 2014 my max is march 2017 upon my release I was told that I now have 5 yrs supervision which would extend my time to nov 2019 I don’t understand how they could pass a bill that would extend my time past my max date and give me more time and not have it consided sentencing me again for what ive already been sentenced to they pass a bill and do what the courts cannot legally do and that is sentence me twice for the same crime I really need your help in this matter I want to leave this state but I cant because of this 5 yrs supervision that I haveand it make me feel like im being held hostage by the state of north Carolina any help that u can give me I would be totally greatful

  12. I was convicted in 2003 for a second degree rape charge. I got 80 to 100 months. I got out on my projected date. I came home in December 2012. I got violated and sent back to prison on my nine months post release. I got violated on Valentine’s Day in 2014. I did all my time, but I’m still on post release plus now on the monitor and a 7:00 curfew. No, I haven’t caught any new crime, all this is coming from my one and only charge. Don’t I suppose to be off of post release and curfew. My probation officer says he can’t do anything because it’s the parole committee doing this. What can I do?

  13. i dont understand what all this means my son is in prison for 10 years on a atemp a chilunder age he is coming up on release and they say he has to do some program and he cva refuse it if he wants but he will have to do it any way if they decide he might affend a gain they can take him back to court rechange him how is this pose able he did his time. they let murders out. my son had no victum, it was a cop on the phone he was talking to.

  14. If convicted of a sex offense in 2006. Did your time and was told you’d have 9 months post-release, and now they’re saying 5 years. Is that correct?

  15. A friend of mine is a Twice convicted sex offender, 200 he did 5 years probation for child porn and is on probation again for 36 months for a recent indecent exposure charge his actual prison sentence was 4 to 14 months he cannot go past 14 months under the plea deal. Both cases is a class I felony in NC. Why would he have to serve 5 years post release supervision when others only get 9 months? Also i am told PRS is much better and easier than actual probation is this true? Is there anyway he can serve his time and not be on supervision after that? Thank you,

  16. A sex offender, will be released in October 2016 after serving his maximum time of twelve years. Will he be subjected to the five year post release supervision?

    • Yes, if the offense was committed after 1996.

  17. […] (For a description of the changes to sex offender sentencing effective December 1, 2011, see this post.) For defendants otherwise eligible for a sentence in excess of the 300-month minimum, just use the […]

  18. Does this 5 year post release apply to those being released on a “failure to register” charge? Thanks!

  19. I would like to know how long it normally takes to receive a reply to my query on the site? I furnished all of the info required some time ago, but still no reply. Thanks.

  20. […] authority to hold sex offenders in a special form of contempt under G.S. 15A-1368.2(b) (discussed here). That law says that punishment for contempt “is not eligible for credit for time served against […]

  21. According to G.S. 15A-1368.2(d) “A supervisee is eligible to receive earned time credit toward the period of supervision …” how is this “earned time credit” earned and how is it computed?

  22. Is there such a thing as early termination for post realease supervision for a class F sex offense?

  23. […] percent of the minimum, plus 60 months (that’s under a change made by S.L. 2011-307, discussed here). G.S. 15A-1340.17(d)–(f). (There is also a fourth type of post-release supervision for […]

  24. I took a plea for 20 to 33 months for indecent liberties I have done 20 months and was released I have already been out for 9 months but my parole officer is telling me that I have 5yrs post release and I signed a plea and this wasn’t in my plea agreement and on my post release papers from the parole board does not say anything about 5 years post release in them anywhere

  25. Four years with 5 years supervised release…Been on SR for overn 7 years. Only violation was for adult porn and fear of finding a partner due to SR. why is it okay to keep revoking restarting and adding even more supervision time. Eg: 10 years now. Then have it over and overnight for adult porn something legal that is fine for me. And only use it appropriately…but the view and judgement and biases and unjustment. I’ve spent over a year in jail at separate times for violations that again were nothing illegal… then no meeting in middle. Everyone revoke restart with more time. Caused me to try suicide three different times. Not once was offered help for it “mental health” doesn’t matter to me because I have a conviction of a SEx offense…which was at 19 years old and had no criminal history…now I’m 31 years old and just got evoked and started again for 10 years….not including the 10 months I was in the halfway house because living didn’t want me there cuz of rhe drinking problem I developed because of all this…the halfway house was so depressing and I tried my second suicide attempt. Every time I was jut thrown back in jail…this is not right.i just want to move on and because of my CIVIL right to look at something legal…they can just give me More and more supervision time. Here’s hoping the 4th suicide attempt doesn’t come but one day. I can’t be treated like this forever because of a mistake…

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