Today’s post shares my answers to some of the questions I have been asked related to the impact of the coronavirus pandemic on the correctional system. As you might imagine, many of those questions are focused on ways to reduce jail and prison populations.
At the time of this writing there are no confirmed cases of COVID-19 in North Carolina’s prison system. But of course there is cause for concern about that. The Centers for Disease Control and Prevention issued interim guidance on management of coronavirus for correctional facilities on March 23, available here. That guidance acknowledges the “unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” The Attorney General of the United States today issued guidance directing the Federal Bureau of Prisons to prioritize the use of home confinement, as allowed under federal law, in certain circumstances.
North Carolina’s Department of Public Safety summarized the actions it has taken in response to the pandemic here. As of yesterday (March 25), those measures include:
- Suspension of the work release program.
- Extra precautions for offender populations with chronic diseases that make them medically vulnerable.
- Limitations on educational and other self-improvement programs and suspension of face-to-face instruction by the community colleges.
The prison population increased slightly this week—perhaps primarily due to the movement of about 200 of the 1,000 sentenced inmates who were awaiting transfer from the jails to prison (“jail backlog” inmates) as the state tried to give some relief to the counties. Advocates are pushing for ways to reduce both the jail and prison populations, which has led to a lot of technical questions about what might be possible. Here are some of the questions I have been asked this week.
Can a judge reduce a sentence that is already being served? In my previous post I noted that a judge has authority to modify a split sentence required as part of a probationary sentence. The defendant, G.S. 15A-1344(d), and the district attorney, G.S. 15A-1344(a), should receive notice of the modification, but the judge can do it for good cause, G.S. 15A-1344(d).
Aside from the contempt law, G.S. 5A-12(c), there’s no comparable statute clearly allowing a modification of a truly active sentence after a session of court has ended. Reducing a sentence is a commutation, which is part of the governor’s clemency power. N.C. Const. Art. III, Sec. 5(6). (The governor also has the authority to pardon any inmate, including the authority to issue a conditional pardon as described in G.S. 147-23.)
That said, if the sentence were erroneous, a judge would have authority to correct it, as Jessie Smith discussed here. And other changes to a sentence might be permissible through motion for appropriate relief, although you’d first have to find a grounds for which relief may be granted. Those are listed in G.S. 15A-1415. It seems to me that a ground that could apply might be G.S. 15A-1415(b)(8)—that the sentence is “otherwise invalid” because the possible spread of coronavirus renders the sentence unconstitutional. Another possible avenue for relief under the MAR statute is G.S. 15A-1420(e), which allows the parties to enter into “an agreement for appropriate relief, including an agreement as to any aspect, procedural or otherwise, of a motion for appropriate relief.” An additional pathway could be a petition for a writ of habeas corpus, arguing that, “though the original imprisonment was lawful,” the pandemic is “some event, which has taken place afterwards” that entitles the defendant to release. G.S. 17-33.
Recall that a judge may reduce a sentence upon revocation of probation, down to as little as 1 day in the case of a misdemeanor, and to the bottom of the sentence range (presumptive, mitigated, or aggravated) used in determining the initial sentence in the case of a felony. G.S. 15A-1344(d1).
Can a judge delay the start of a sentence? Yes. I discussed that issue here, including the authority to delay the service of a sentence activated upon revocation of probation.
Can a judge pause the execution of an active sentence already underway? I don’t know of any clear statutory authority for a judge to do that. That sounds more like a “reprieve,” which is a component of the governor’s clemency power under Article III, Section 5(6) of the state constitution. The Secretary of Public Safety is also empowered by G.S. 148-4 to extend the limits of inmates’ confinement “for a prescribed period of time” for certain purposes, including obtaining medical services not otherwise available. If the inmate fails to return to confinement at the prescribed time it is deemed an escape.
Is it still possible to have a felony defendant released directly from jail onto post-release supervision? A rumor I have encountered several times this week is that a defendant who is being sentenced or whose probation is being revoked must physically go to prison before being released onto post-release supervision (PRS), even if he or she has jail credit sufficient to be eligible for release. I confirmed with DACJJ Combined Records that the defendant need not come to prison. If the defendant has jail credit in excess of the minimum sentence that brings him or her within 9 months of the maximum sentence (or within 12 or 60 months of the maximum, as the case may be for a Class B1–E felony or a Class B1–E sex offender) the judgment may be faxed to (919) 324-6237 to be processed as a jail post-release case. That means Combined Records and the Parole Commission will work to have conditions of PRS issued without the defendant having to be transferred to prison. Please reach out to Ms. Brickhouse, (919) 324-1359, if you need help with a jail post-release matter.