With new legislation placing more inmates in the county jail—and with budgets continuing to be tight—I’ve been getting a lot of questions about jail fees. I’ve written about them in the past (see this post), but so much has changed since then that it’s time for another look.
General Statute 7A-313 describes two types of jail fees. The first, set out in the first paragraph of that statutory section, is a fee for time spent in jail awaiting trial. The law says that a person who winds up getting convicted shall be liable to the county in the sum of $10 for each 24 hours of confinement or fraction thereof. The pretrial confinement fee used to be $5 per day but was increased to $10, effective August 1, 2011. S.L. 2011-145, sec. 31.26.(e), as amended by S.L. 2011-192, sec. 7.(p). No fee is assessed if a person is acquitted or the case against him or her is dismissed.
The second fee, set out in the second paragraph of G.S. 7A-313, is for “persons who are ordered to pay jail fees pursuant to a probationary sentence.” The exact meaning of that portion of the law has never been crystal clear, but it has generally been interpreted—especially since an amendment in 2000—to authorize a fee for every day served in jail as part of a sentence to special probation (a split sentence). The amount of the probationary-sentence jail fee is set at the “same per diem rate paid by the Department of Correction to local jails for maintaining a prisoner, as set by the General Assembly in its appropriations acts.” Before 2009 that reference was ambiguous, as there were two DOC-to-jail per diem reimbursement rates set out in the budget. There was an $18 per day rate, authorized by G.S. 148-32.1(a), for jail inmates serving criminal sentences of 30 days or longer. And then there was a $40 per day “jail backlog” rate, authorized by G.S. 148-29, for convicted inmates awaiting transfer from a jail to DOC. For years the Administrative Office of the Courts gave defendants the benefit of the doubt and applied the $18 rate. In 2009, however, the reimbursement for 30-day inmates was repealed (S.L. 2009-451, sec. 19.22A), leaving the $40 rate as the only one to which the jail fee could be pegged. Since then, the probationary-sentence jail fee has been $40.
Previously, a split sentence was the only jail confinement that could have been ordered “pursuant to a probationary sentence,” and was thus the only type of confinement for which the $40 fee could be assessed. Under the Justice Reinvestment Act, there are two additional types of confinement that arguably qualify. First is the new “community and intermediate probation condition” set out in G.S. 15A-1343(a1)(3) allowing a judge to order up to six days of jail confinement per month, served in 2- to 3-day increments. Those short-term jail stints are clearly a condition of probation and thus appear to be part of a “probationary sentence” for which the $40 per diem fee could be assessed. (On a related note, there is no clear authority for a probation officer to impose the jail fee for quick dip confinement imposed pursuant to delegated authority under G.S. 15A-1343.2(e)(5) or (f)(6). The only delegated authority condition for which officers are expressly granted power to impose a fee is community service.) The other new candidate for the fee is confinement in response to violation (CRV) under new G.S. 15A-1344(d2), discussed here. It is less clear to me that CRV fits within the language of G.S. 7A-313. Though it can only happen in cases where a defendant is sentenced to probation, it is not so much a condition of a probationary sentence as it is a partial activation of suspended sentence of imprisonment. As a practical matter, many defendants will not have the wherewithal to pay $40 for each day of a 90-day felony CRV period ($3,600 total)—although I suppose the same could be said for those assessed jail fees for split sentences, which can run well past 90 days in many cases.
Finally, there is the question (often asked by sheriffs’ offices) of when jail fees should be assessed. The $10 pretrial confinement fee is stated in mandatory terms (“[p]ersons who are lawfully confined . . . shall be liable”). And by virtue of a reference to jail fees in G.S. 7A-304(c), it appears to fall within the new rule that costs in that statutory section (G.S. 7A-304) may not be waived—even in active-punishment cases—unless the judge makes a written finding of just cause to grant such a waiver. G.S. 7A-304(a), as amended by S.L. 2011-145, sec. 15.10.(a). The $40 probationary-sentence jail fee is worded differently. It applies only to “[p]ersons who are ordered to pay” it, suggesting judges have discretion not to. As such, probationary-sentence jail fees are listed separately as an optional check-box item on the judgment forms for any confinement ordered as part of a probationary sentence.