Questions related to the Justice Reinvestment Act keep flooding in. Lots of them have been addressed elsewhere on this blog (see our Justice Reinvestment Resource Page for a collection of everything that’s been written so far), but I thought it might be helpful to collect some of the frequently asked questions into a single post.
Also, I’m happy to report that these questions and many others are addressed in my forthcoming book on the Justice Reinvestment Act. It is creatively titled The North Carolina Justice Reinvestment Act, and it is current through the 2012 legislative session—including several changes that will come into effect on December 1. Many of you will receive a free copy through a grant from the U.S. Department of Justice Bureau of Justice Assistance. It will also be available for purchase. It will be out before the holidays so your shopping worries are over.
Here are the FAQs. If others come to mind, post a comment and I’ll do my best to reply.
1. If a defendant’s alleged offense date for a crime is a range of dates that includes December 1, 2011, which sentencing law applies, pre– or post–Justice Reinvestment? When a crime has allegedly been committed over a range of dates both before and after December 1, 2011, the defendant generally should be sentenced under the law that results in the less severe sentence. See State v. Poston, 162 N.C. App. 642, 651 (2004) (applying that rule to a crime committed over a range of dates that crossed the Fair Sentencing-to-Structured Sentencing transition). A more complete discussion of this question is available here.
2. How does post-release supervision (PRS) work for a defendant sentenced to consecutive sentences for multiple PRS-eligible crimes? The consecutive sentences are treated as a single term whose aggregate minimum sentence is the sum of the individual minimums, and whose maximum is the sum of all the individual maximums “less 12 months for each of the second and subsequent sentences imposed for Class B through Class E felonies, or less 60 months for each second or subsequent [reportable] Class B1 through E felony . . . , and less nine months for each of the second and subsequent sentences imposed for Class F through Class I felonies.” G.S. 15A-1354(b). The defendant will serve a single post-release supervision period upon his or her release from prison. The length of that PRS period, the date of release, and imprisonment time hanging over the person’s head during the supervision period will be dictated by the defendant’s most serious offense. Thus a defendant serving consecutive sentences for a Class B1–E sex crime, a Class B1–E non-reportable crime, and a Class F–I crime would be released from prison 60 months before attaining his maximum sentence, less earned time, to serve a single 60-month period of PRS with 60 months of remaining imprisonment hanging over his head. The prison system would subtract a total of 21 months from his aggregate maximum sentence: 12 months for the Class B1–E non-reportable offense and 9 months for the Class F–I offense. The order in which the sentences are stacked generally does not matter.
3. Do the changes to the habitual felon law offer any relief to inmates already serving sentences for convictions sentenced under the previous habitual felon law? No. The revised law applies to substantive felonies that occur on or after December 2011, but expressly does not affect prosecutions based on offenses committed before that date. S.L. 2011-192, sec. 3.(e). Thus, defendants being prosecuted for substantive felonies committed prior to December 1, 2011 and inmates already serving sentences imposed under the habitual felon law do not appear to be entitled to relief on account of the revised law. See State v. Loftin, __ N.C. App. __, 727 S.E.2d 404 (2012) (unpublished) ( “While the Justice Reinvestment Act may reduce the term of imprisonment to which a similarly situated defendant could now be sentenced, its passage by the North Carolina General Assembly does not make defendant’s sentence unconstitutional.”).
4. Can an inmate refuse post-release supervision? No. G.S. 15A-1368.2(b).
5. Can the court impose short-term (“dip”) confinement at sentencing as part of a “community” punishment? Probably. “Dip” confinement is listed among the new “community and intermediate conditions of probation” set out in G.S. 15A-1343(a1). That law says that those conditions may be imposed as part of a community or intermediate punishment. There is some argument that a community punishment should not include imprisonment because community punishment is defined in G.S. 15A-1340.11(2) as a sentence that “does not include an active punishment.”
6. What is the effective date for the change limiting the court’s authority to revoke an offender’s probation? The JRA’s limitation on judges’ revocation authority was made effective for probation violations occurring on or after December 1, 2011. The phrase “probation violations occurring” in the effective date clause almost certainly refers to the alleged offending behavior itself—not to the date the violation report was filed, the date of the violation hearing, or any other triggering event. It is possible in the short term that a single violation report will include a mix of pre– and post–December 1, 2011 violations. A judge will need to know the date of each alleged violation to determine the permissible response options. Prior law—allowing revocation for any violation, but not authorizing Confinement in response to violation (CRV)—applies to any violations that happened before December 1, 2011.
7. Do the limits on the court’s authority to revoke probation apply to DWI cases? Yes. The limits to the court’s revocation authority are set out in Article 82 of G.S. Chapter 15A. That article applies to both Structured Sentencing and impairing driving cases. G.S. 15A-1341(a).
8. Can a period of confinement in response to violation (CRV) for a felony be less than 90 days? Only if the defendant has 90 days or less remaining on his or her suspended sentence. G.S. 15A-1344(d2). Otherwise, the CRV period must be 90 days exactly.
9. Must an offender be “quick dipped” (i.e., ordered to a 2–3 day confinement period, either by a judge or by a probation officer through delegated authority) before he or she may be “dunked” (i.e., ordered to serve a CRV period)? No. A probationer must receive two CRV periods before he or she may be revoked for a “technical violation” (a violation other than a new criminal offense or absconding), but a person may be “dunked” before first being “dipped.”
10. Can the judge reduce a person’s suspended sentence at the point of imposing CRV (like it can when revoking probation)? Unclear. Under G.S. 15A-1344(d) and (d1), a court can, “before activating a sentence,” reduce a defendant’s sentence within the same sentencing grid cell. Those provisions clearly allow the court to reduce a defendant’s sentence when revoking his or her probation. It is uncertain, however, whether they also allow the court to reduce a person’s suspended sentence when imposing CRV. To the extent that CRV can be styled as a partial activation, the reduction may be permissible. If it is, any suspended sentence for a misdemeanor may be sufficiently reduced to the point that a terminal CRV is permissible.
11. Can the court order CRV to be served on weekends? Unclear. There is no statutory provision allowing or prohibiting CRV to be served in noncontinuous periods (on weekends, for example). In the absence of such a provision, however, CRV periods should probably be served continuously. See State v. Miller, 205 N.C. App. 291 (2009) (holding that, absent statutory authorization, a judge lacks authority to allow a defendant to serve an active sentence on weekends in a Structured Sentencing case).
12. Where is CRV served? CRV is served where the defendant would have served an active sentence. G.S. 15A-1344(d2). The simplest reading of that rule is that any CRV period ordered in a case should be served in the place of confinement ordered on the original judgment suspending sentence. Under that approach, in cases with sentences initially imposed on or after January 1, 2012, the proper place of confinement for a felony CRV period is DAC, which has identified six facilities that will house CRV inmates (Dan River, Greene, Odom, Tyrrell, Western Youth Institution and, for women, Fountain Correctional). The proper place of confinement for a misdemeanor CRV period will be either the local jail, the Misdemeanant Confinement Program, or, in some cases, prison, depending on the length of the suspended sentence and whether it was for a crime sentenced under Structured Sentencing or an impaired driving offense.
13. Can a pending criminal charge be a violation of the “commit no criminal offense” probation condition? Probably. In general, a person’s probation should not be revoked based on a new criminal offense until he or she is convicted of that charge, State v. Guffey, 253 N.C. 43 (1960), unless the probation court makes an independent finding, to its “reasonable satisfaction,” that the defendant committed a crime. State v. Monroe, 83 N.C. App. 143 (1986). Probation should never be revoked based on the mere fact that a new criminal charge is pending; rather, there must be a conviction or some inquiry by the probation court into the alleged criminal behavior itself. A more complete discussion of this issue is available here.
14. Can a defendant appeal a period of CRV? Unclear. The JRA did not include an explicit statutory provision for appealing a CRV period—either from district to superior court for a de novo violation hearing or from superior court to the appellate division for review. Under G.S. 15A-1347 and existing case law, there is no provision for appeal of probation matters other than revocation or imposition of special probation. See State v. Edgerson, 164 N.C. App. 712 (2004) (“Defendant’s sentence was neither activated nor was it modified to ‘special probation.’ Defendant therefore has no right to appeal.” (citations omitted)). Strictly speaking, CRV is neither of those things. And because the right to appeal in North Carolina is purely statutory, there is a sense that CRV may not be appealed. State v. Joseph, 92 N.C. App. 203, 204 (1988), cert. denied, 324 N.C. 115 (1989). There may, however, be an argument that imposition of a CRV period—especially a terminal CRV period—fits within the language of G.S. 15A-1347 as an activation or partial activation, although other provisions in that law reference “judgments revoking probation.” Even if that statute is not applicable, other avenues for review may be possible. For appeals from superior court to the appellate division, G.S. 15A-1442(6) (providing that a defendant may appeal other prejudicial errors of law) or G.S. 7A-27(b) (granting jurisdiction to the court of appeals to review any final judgment of a superior court) may be deemed a sufficient basis for appeal. Aside from those provisions, a defendant might also seek review through a petition for a writ of certiorari, motion for appropriate relief, petition for a writ of habeas corpus, or other extraordinary writ, depending on the nature of the alleged error.
15. Can a defendant elect to serve a sentence—either by refusing probation or by admitting to a violation of probation—after Justice Reinvestment? In general, no. G.S. 15A-1344(c), the law that formerly allowed probationers to elect to serve a sentence, was repealed in 1995. A defendant may admit to a violation of probation, but under the JRA the admission must be to a new criminal offense or absconding in order to give the court power to revoke. A felon with an offense date on or after December 1, 2011 who is considering asking for an active sentence or admitting to a probation violation sentence should bear in mind that he or she will be released onto post-release supervision at the conclusion of the active term. Under G.S. 15A-1368.2(b), post-release supervision cannot be refused. Knowing that he or she will eventually have to serve a period of supervised release very similar to probation, the defendant may be less inclined to request active time.
16. What happens when a defendant is convicted of two or more crimes that are eligible for G.S. 90-96 conditional discharge at the same session of court? Conditional discharge appears to be mandatory even when an eligible defendant is convicted of multiple simple possession offenses at once. If the convictions arise at the same time, none is a disqualifier for the others, and the court would appear to be required to defer proceedings and place the defendant on G.S. 90-96 probation for all of them (assuming the defendant consents).
17. Must G.S. 90-96 probation be supervised? No, the statute does not require supervised probation.
18. Can DWI sentences still be served in the jail? Yes, in some cases. DWI sentences were excluded from the Statewide Misdemeanant Confinement Program, but the JRA did not amend the baseline law for where a DWI sentence is served, G.S. 20-176(c1). Under that law, a first-time DWI offender who has not previously been imprisoned for a Chapter 20 offense must serve his or her DWI sentence in the jail.
19. Can split sentences for felons still be served in the jail? Yes. The JRA did not amend G.S. 15A-1351(a) (the statute governing split sentences imposed at sentencing) or G.S. 15A-1344(e) (the statute governing split sentences added as a modification of probation). Both of those laws say that a split sentence may be served in prison, jail, or a treatment facility. Noncontinuous splits (e.g., weekends) must be served in the jail or a treatment facility.
20. Can the court still impose a split sentence after Justice Reinvestment? Yes. The JRA did not repeal G.S. 15A-1351(a) or G.S. 15A-1344(e).