Delegated Authority in Probation Cases

I was at a meeting at the Department of Correction yesterday talking about some of the changes made by the Justice Reinvestment Act (JRA, summarized here). One of the big changes is an expansion of the conditions a probation officer may add through delegated authority under G.S. 15A-1343.2(e) and (f). In talking about those changes, though, it became clear that there are some questions about how delegated authority works under existing law. In some places around the state it is used a lot, in other places not much at all. This post summarizes existing law and then looks at how things change under the JRA.

Delegated authority has been a part of our law since Structured Sentencing first became effective in 1994. The law allows a probation officer to impose certain additional requirements on an offender without first clearing those new conditions with the court. As the law was initially enacted, authority to add those conditions was not granted to the probation officer unless the court expressly delegated it. Under changes made to the law in 1997 (S.L. 1997-57), however, the default position was reversed such that delegated authority applies unless the judge specifically finds that the delegation is not appropriate. The delegated authority law applies only to cases sentenced under Structured Sentencing, not in DWI cases or anything sentenced under older law.

Under existing law, which conditions an officer may impose through delegated authority depends on whether the probationer was sentenced to community punishment or intermediate punishment. In all cases, the probation officer may add conditions only he or she first determines that the offender has failed to comply with one or more conditions of probation imposed by the court.

In community cases, the probation officer may: (1) require the probationer to perform up to 20 hours of community service; (2) require the probationer to report to the officer more frequently; or (3) require substance abuse assessment, monitoring, or treatment. G.S. 15A-1343.2(e). In intermediate cases, the probation officer may: (1) require up to 50 hours of community service; (2) impose an electronically-monitored curfew; (3) require substance abuse assessment, monitoring, or treatment; (4) require the probationer to participate in an educational or vocational skills development program; or (5) submit to satellite-based monitoring if the probationer is described by G.S. 14-208.40(a)(2). G.S. 15A-1343.2(f).

When a probation officer adds a condition or conditions through delegated authority, he or she must give the offender notice of the right to seek court review of the officer’s action. The probationer is entitled to file a motion with the court for review (although the statute is silent as to how and how quickly that hearing must be held). Any conditions added by the officer can subsequently be reduced or removed by the officer.

Effective for “persons placed on probation based on offenses which occur on or after December 1, 2011,” (S.L. 2011-192, sec. 1.l), the JRA expands the authority delegated to probation officers in several ways. First, the list of conditions a probation officer may impose grows substantially. For community cases, the act adds four additional response options that the probation officer may impose without prior court approval: (1) house arrest with electronic monitoring, (2) an electronically monitored curfew, (3) participation in an educational or vocational skills development program, and (4) short periods of jail confinement (let’s call them “quick dips”) totaling up to 18 days. The amended list of response options for intermediate cases is essentially the same as the community list, with two variations. One, the officer may impose up to 50 hours of community service in intermediate cases. And two, the officer may impose satellite-based monitoring if the defendant is a sex offender described by G.S. 14-208.40(a)(2).

The JRA further expands delegated authority by broadening the circumstances in which the probation officer may use it. The law allows a probation officer to exercise delegated authority not only when he or she believes there has been a violation of probation, but also when the offender is found to be “high risk” based on a Department of Correction risk assessment. (Except for quick dips, which can only be imposed in response to a violation—and only if the offender waives his or her right to a full-blown violation hearing before the court. I’ll talk about the quick dip provision in greater detail in a subsequent post.) The Division of Community Corrections (DCC) will decide who is “high risk” within the meaning of the law.

Whether acting in response to a violation or to the probationer’s risk level, the officer must under the new law get administrative approval from a chief probation officer prior to exercising delegated authority. (That’s new to the General Statutes but already standard operating procedure for DCC.) The probationer still has a right to file a motion to have the court review any conditions the officer might impose. (Except, again, in the case of quick dips, for which the law allows no right of court review—on the theory, I suppose, that the officer can only impose a quick dip if the offender waives his or her right to a court hearing in the first place. As I said, more to follow on the quick dips.)

There aren’t any reported cases discussing delegated authority and, until recently, it wasn’t something I was asked about very often. I’d love to hear your thoughts about how it’s used now and how you think it might be used under the new law.