Go Directly to Jail (or Is It Prison?)

Last week the News and Observer ran an article about a legislative proposal to send more inmates to county jails instead of DOC facilities. A separate part of the plan proposed to reduce or eliminate reimbursement payments the state sends to the counties for certain inmates held in the jails. Both proposals appear to have been tabled for now, but I get questions about these issues (where to serve, and who pays), so a blog post seemed appropriate.

Regarding where a sentence should be served, the defaults under current law are set out in G.S. 15A-1352 as follows:

* Misdemeanants sentenced to 90 days or less must serve their time in a jail, except when the custodian of a jail certifies that it is full under G.S.148-32.1. Many county jails have “overcrowding letters” on file with DOC, specifying that sentences exceeding a certain length (e.g. 30 days, or 60 days) will be served in prison, not in the jail. I sometimes hear people refer to 180 days as the jail-prison cutoff point. That was the case under older law, but Session Law 1993-538 changed the threshold to 90 days.

* For misdemeanants sentenced to over 90 days, the judge decides where the time will be served, DOC or the jail.

* Felons must be committed to DOC, unless the sheriff or the board of commissioners of a county request that the person be sentenced to a local confinement facility in their county.

As for reimbursements from the state to the counties, the state currently pays the counties a per diem rate for two categories of jail inmates: those serving a sentence of 30 days or more, and those awaiting transfer to DOC (the so-called jail backlog). For inmates serving sentences of 30 days or more, G.S. 148-32.1 requires DOC to pay the counties a per diem rate set by the General Assembly in its appropriations acts, plus any extraordinary medical expenses. The current reimbursement rate for these inmates – set by the General Assembly in 1997 – is $18 per inmate per day. That doesn’t come close to the actual cost to the county, which I believe ranges between $50 and $100, depending on the county. (Please weigh in if you have more detailed information.) Regarding the jail backlog, under G.S. 148-29, DOC pays a county $40 for every day an inmate spends in the jail after the sheriff has notified DOC that the inmate is ready for pick-up. The General Assembly set the $40 figure in 1999.

Another question I have been getting in these tough financial times relates to what fees the jail can charge inmates. Jail fees are governed by G.S. 7A-313, which establishes a uniform jail fee of $5 for every 24 hours of pretrial confinement for defendants who are ultimately convicted. That provision goes on to say that “persons ordered to pay jail fees pursuant to a probationary sentence” must pay a fee equal to the amount paid by DOC to the jail for maintaining a prisoner. I interpret that part of the law to mean a judge can order a defendant sentenced to special probation to pay $18 for each day spent in jail as part of the active component of the split sentence. G.S. 7A-313 makes no reference to assessing fees for inmates sentenced to straight active time, and aside from certain work-release inmates (who may, under G.S. 148-33.1(f), be ordered to pay for the cost of their keep), I don’t see any basis for doing so.

2 thoughts on “Go Directly to Jail (or Is It Prison?)”

  1. Note that the 2009 budget bill repeals G.S. 148-32.1(a). See S.L. 2009-451, Sec. 19.22A. In accordance with this repeal, the Conference Committee Report for the 2009 budget bill “[e]liminates the requirement that DOC pay $18 per offender per day to counties as a subsidy for holding inmates with sentences greater than 30 days but less than 90.”


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