Changes to Post-Release Supervision for Sex Offenders

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.