Post-release supervision used to be relatively rare. Before 2011, only Class B1–E felons received PRS, and they accounted for only about 15 percent of all felons. Now that Class F–I felons also get PRS, the number of people under supervision is surging. Some of them get into trouble. This post looks at some of the increasingly common questions that come up when a post-release supervisee is charged with and eventually convicted of a new crime.
Every post-release supervisee is subject to a condition requiring that he or she “not commit another crime.” G.S. 15A-1368.4(b). A supervisee can be revoked for a violation of that condition. (For most other violations, the supervisee can be returned to prison for only three months. G.S. 15A-1368.3(c).)
When a post-release supervisee is charged with a new crime, the Parole Commission will often issue an “order of temporary or conditional revocation of post-release supervision,” also known as a PRS warrant. G.S. 15A-1368.6(a). As discussed in this prior post summarizing the PRS violation hearing process, it is generally understood that there is no entitlement to bail pending a PRS hearing. So, even if the defendant would be able to make bond on the new charge, he or she will be stuck in jail by virtue of the PRS warrant.
A person held on a PRS warrant is entitled to a preliminary hearing on the violation within seven working days of arrest, G.S. 15A-1368.6(b), and a hearing before the full commission within 45 days after that, G.S. 15A-1368.6(e). In reality, most supervisees waive their right to a hearing before the full commission when the preliminary hearing officer visits them in the jail.
Sometimes, however, a supervisee charged with a new crime will want to have his or her day in court on the new criminal offense before the Commission considers it as a violation. In that case, the supervisee will be given the opportunity to waive the right to a timely PRS hearing (using this form), to allow the criminal charge to run its course.
There are several reasons that waiver shouldn’t be taken lightly.
No bail. First, as noted above, there is no entitlement bail during the pendency of PRS hearing. That means the supervisee will remain confined on the PRS warrant for as long as it takes to resolve the new criminal charge. Note that the Parole Commission will not automatically rescind its warrant when the supervisee has served all the time remaining on his or her maximum sentence (9 months, typically). That might, however, be a point at which the defendant wishes to reengage with the Commission, possibly to arrange for a revocation to time already served in the PRS case. With the PRS case out of the picture, the defendant might be eligible for pretrial release on the pending criminal charge.
No jail credit. Second, the Division of Adult Correction (DAC) takes the position that no jail credit should be awarded to the pending criminal charge for any time that the defendant was also held on a PRS warrant. They view the reconfinement on the warrant as service of a “previously imposed sentence” within the meaning of G.S. 15-196.1, and they will flag it as error if the court also applies the credit to the sentence for the new criminal offense.
Lost overlap. Third, any delay in the possible conviction and sentencing for the new crime is a missed opportunity for concurrent service of the new sentence and the revoked PRS term. Many people mistakenly believe that a new sentence and a revoked PRS term must run consecutively. In fact, the opposite is true: a new sentence and a revoked PRS term almost always run concurrently. Even if the judge sentencing the new offense orders it to begin at the expiration of the other sentences the defendant is presently obligated to serve, the new sentence will generally arrive at DAC first, and they will not delay its start date pending the outcome of any related PRS proceeding.
As for the PRS revocation, the sentence revoked necessarily will be silent as to the sentence for the new crime, because the new sentence did not yet exist when the PRS sentence was originally entered. Silence equals concurrent, and the Parole Commission does not have independent authority to order the revocation to run consecutively to other sentences that have arisen in the meantime. So, the PRS revocation necessarily runs concurrently with the sentence for the new crime.
Each of these factors gives the supervisee an incentive to resolve the new charge and the pending violation quickly, to maximize the opportunity for overlap between the existing sentence and the new one. Of course, that is not to say that all supervisees charged with new crimes should rush blindly into a guilty plea. That’s nothing to take lightly, either! But these decisions are best made with a full understanding of how things will play out in practice.