Changes to Post-Release Supervision on the Way

Under existing law, only Class B1 through E felonies get post-release supervision (PRS). They are released from prison “on the date equivalent to [their] maximum imposed prison term less nine months, less any earned time,” G.S. 15A-1368.2(a), and their period of supervision in the community is generally 9 months. For sex offenders, period of supervision is 5 years. G.S. 15A-1368.2(c). If a post-release supervisee violates the conditions of supervision, the Post-Release Supervision and Parole Commission (Parole Commission) can revoke PRS and place the offender back in prison “up to the time remaining on his maximum imposed term”—which will, of course, be 9 months, because that’s how much time he had remaining on his sentence when he was released. G.S. 15A-1368.3(c)(1).

As part of the Justice Reinvestment initiative, analysts from the Council of State Government (CSG) reviewed criminal justice data from North Carolina and made recommendations for how our system could be improved. One of their findings (set out in the reports available here) was that the vast majority of inmates leave DOC with no supervision in the community, and that those inmates tend to have a higher re-arrest rate than those released to post-release supervision. In response, the CSG group recommended changing the law so that all felons would have supervision in the community upon release. By way of background, the North Carolina Sentencing and Policy Advisory Commission has analyzed this issue in detail for many years, most thoroughly in its 2008 recidivism report (see pp. 53–74). When it controlled for other factors (such as offenders’ personal characteristics, risk level, and criminal history), the Sentencing Commission has found no statistically significant difference in re-arrest rates between prisoners with PRS and those without.

Based on the CSG recommendations, the Justice Reinvestment Act (JRA), S.L. 2011-192, expands the post-release supervision law so that it covers all felons. The change is effective for offenses committed on or after December 1, 2011. For Class B1–E felons, the PRS period (and the underlying maximum sentence) is extended by three months, bringing the total period of supervision for those offenders to 12 months. For Class F–I felons, a new 9-month PRS period is added, and maximum sentences for those crimes are all increased by an equivalent 9 months. So, what used to be a 4–5 month sentence, for example, will now be a 4–14 month sentence, with the offender getting out of prison 9 months before attaining his or maximum to go on PRS.

The JRA also makes a corresponding change to G.S. 15A-1354(b)—the statutory home of DOC’s “single sentence rule,” discussed here—to provide that when a person serves more than one felony sentence, he or she serves only one period of post-release supervision at the end of the aggregate maximum term. Duplicate PRS time, which is built in to each maximum term, gets subtracted out: 12 months for second and subsequent Class B1–E felonies, and 9 months for second and subsequent Class F–I felonies. (I read “second and subsequent” in the amended law to refer to all of the defendant’s felonies, regardless of offense class. For instance, I think you would subtract 9 months from the aggregate maximum for even the first Class F–I felony if the defendant were also convicted of a Class B1–E felony.)

There’s a strangeness that seems likely to arise when you apply PRS to such short sentences. Under existing law, there are only two cells on the sentencing grid (Class E, Prior Record Levels I and II) where an offender can start a sentence on probation and wind up on post-release supervision. (It might also happen for offenders who receive extraordinary mitigation under G.S. 15A-1340.13(g) and a few others, but those are pretty rare.) Every other PRS-eligible cell on the grid is “A” (active) only. Under the new law, many offenders will get probation for low-level felonies, and some portion of those—about a third, historically, although probably less in light of the JRA’s new limitations on a judge’s authority to revoke probation—will have their probation revoked. If the offender has any appreciable credit against his or her suspended sentence (be it from pretrial confinement, split sentence confinement time, or 90-day confinement in response to a technical [i.e., non–new crime, non-absconding] violation under new G.S. 15A-1344(d2)), he will soon be within 9 months of attaining his maximum and thus due for release on post-release supervision.

An example might be helpful to illustrate that point. And let’s use an example from one of the most-used cells on the sentencing grid: Class H, Level I (about 10 percent of all felony convictions fall there—over 3,000 convictions last year). Let’s say the defendant is sentenced in the presumptive range to 5–15 months, suspended for 36 months. Suppose over the course of his probation period he is ordered to complete two 90-day confinement periods in response to technical violations under new G.S. 15A-1344(d2). Upon the third violation the court would be empowered to fully revoke his probation, but at that point he is already within 9 months of his maximum sentence—and so it’s time to be released onto post-release supervision and the defendant is effectively revocation-proof. If the defendant had any other jail credit, or if DOC allows offenders to accrue earned time during 90-day confinement periods, that transition point might happen even sooner. I’m not sure how the Department of Correction will implement that.

Once the offender is on PRS the Parole Commission becomes the controlling authority over the case, but the JRA also made changes to the Commission’s authority to respond to violations of PRS. Similar to the restrictions on courts’ authority to respond to probation violations, the law provides that the Commission may only fully revoke PRS for offenders who commit a new crime, who abscond, or who are under supervision for a reportable sex crime. The Parole Commission can respond to other violations by returning the offender to prison for three months, after which he or she must be released back onto supervision. Supervisees can be returned to prison for two additional three-month stints, after which Class B1–E supervisees may be returned to prison up to the time remaining on their maximum imposed term.

A final quirk of the changes to PRS made by the JRA is that the law adds time to all the maximum felony sentences on the sentencing grid to account for defendants’ earlier release onto PRS, but it does not add any time onto the maximums for drug trafficking sentences in G.S. 90-95(h). That omission is most notable for Class G and Class H trafficking crimes, where the gap between the minimum and maximum terms is pretty small. With the new PRS rules in place, a Class H trafficker with a 25–30 month sentence will be due for release on PRS at 21 months (that’s the maximum less 9 months), which is well before the inmate will have served his or her minimum.

The JRA is not the only new law that affects post-release supervision. My next post will consider some additional changes related to sex offenders and impaired drivers.

28 comments on “Changes to Post-Release Supervision on the Way

  1. Brings a whole new meaning to the term “revolving door.”

  2. I’m wondering if anyone gave any thought to the size of the increase of people to be supervised by Probation/Parole Officers. I’m getting rather cynical and my guess is no.

  3. John T. Barrett: The fiscal note prepared in conjunction with the JRA projected the number of offenders on post-release supervision would increase from about 2,000 today to over 14,000 each year. I have also heard higher estimates (closer to 19,000). The note is available here and this issue is discussed on p. 3.

    To offset the increased caseload of post-release supervisees, DOC plans to have low-risk offenders report to a probation officer through remote (i.e., computer- or mail-based) reporting.

  4. Is this (2nd paragraph) saying that even though they found no significant difference in recidivism rates when there is PRS the law was still changed and considered an improvement? I didn’t read the 2008 recidivism report.

  5. My husband got out of prison now he has violated his 9 month post release and I was wondering can he work the 9 months down or does he have to do the whole 9 months…

    • I would like to see the answer to Misty’s question also-any responses?

    • The way I just read it if you are commit to another crime while on 9 mth post you will have to got back and seve the whol month ….

  6. I am trying to determine if my husband should be eligible for post release. He was originally convicted in July 2012 and put on probation. He violated the said probation and his sentence of 15-18 months has been activated. Will he get post release?

    • Did you find out your answer? I need to know this answer as well

  7. Could someone please tell mee. What type 2 post release r. Revocatiion means. Please

  8. My husband is under class b1 im wondering if he will have to do his whole 9 months or. Could he be released earlier

  9. Is Post-Supervision going to end on September 15, 2015

  10. If my post release sentence only has 2 months left and I violate, will I have to go to prison the full 9 months? My charge isn’t a sex offense. And if I were violated, it’s because I literally can’t afford supervision costs

  11. Does anyone know is it legal to guve someome a 3yr flat and 5yr post release.

  12. […] supervision. The JRA changed the felony sentencing law so that all felons would receive post-release supervision upon their release from prison. Previously only Class B1–E felons received PRS, and because there […]

    • When was law passed that all felons; min or max; will be on parole when released?

  13. my boyfriend is sentenced for drug trafficking, will he be able to get post release before his minimum?

    • Generally, no. Unless the governor steps in (which is rare), a person cannot be released before completing his minimum sentence.

    • only the last 9 mnt. but will be on probation and he can be out of the house from 6am to 6pm

  14. I’m trying to understand how for a sex offender who has worked to there minimum but their max would have been 2015. How can post release go over that term of his maximum?. So he was released in 2012 and started PRS upon release but the 5 years imposed on him would make being released from PRS 2017 which is 2 years over maximum imposed sentence by the judge. How is this legal in any way?

  15. My boyfriend is supposed to be in min prison but is in max because min has no room!! (Feb.2013) He was drunk, driving,and tried to run from law. He was on probation, didn’t finish classes or get fees played. Went to court 2-9-17. PO asked for time instead of dropping like attorney was told.. Went in 2-9-17. Latest time 7-10-17. Earliest 5-9-17. They say he will be released 6-15-17. And still be on parole 90 days!!! What’s up with this???

    • Forgot to clear on boyfriend; he was put on probation 2014; also when he went to court 2-9-17 he had 92days credit….very confused….

  16. Also, boyfriend got 3 days off month for good behavior; and 10 days off for working. We’re just so confused… Lawyer was shocked he got any time since it was so long ago. Figured it would just be dropped, PO told lawyer he was not going to ask for anything. Lawyer found out he was right before going in front ofjudge.. So lawyer was not prepared, and shocked..Then when Judge did go with PO, Lawyer never thought he would serve 90 days.. Sorry, think I got it all in now… Just want to understand. So you need all info… Thanks for patients…

  17. Don’t know if I put correct date of when boyfriend got probation. But it was 2013. Thanks.. Sorry..

  18. Why are they giving people 12 month post release and not 9 months if the law says 9 months?

  19. Hello my boyfriend was charged with 2 counts of attempted trafficking charges in August 2015. Class G. He remained in jail pre- trail confinement until his conviction in June 2017. The judge gave him 365 days credit on 1 charge and 305 days on the second charge. He was sentenced to 12-24 months for 1st charge and 12-24 months for the second charge. I would like to figure out when he would be released on post- Release. He is currently in the processing stage. The DOC website projected release date is 2/15/18. It is the end of July now so that only leaves 7 months for post – release. I’m confused as to when he will be out of custody and how will his post – release time work since he has less than 9 months remaining. Looking for answers.

  20. […] through ASR are subject to the new violation rules set out in G.S. 15A-1368.3(c) (discussed here), with the caveat that once an ASR offender has been returned to prison for three, three-month […]

  21. […] The North Carolina Sentencing and Policy Advisory Commission recently posted online the new felony sentencing grid effective for offenses committed on or after December 1, 2011. The chart is available here. There are no changes to the front of the grid (the ranges of permissible minimum sentences), but the numbers on the back are increased to account for the fact that under the Justice Reinvestment Act, all felons with offenses committed after last week will receive post-release supervision (discussed here). […]