Probation for Contempt

Sentences for criminal contempt may be suspended. That has been understood as a matter of case law for a while, see Bishop v. Bishop, 90 N.C. App 499 (1988), and it became clear as a matter of statute for some contemnors in 2009 with the addition of G.S. 5A-12(a)(3), S.L. 2009-335. That subdivision allows a judge a term of imprisonment of up to 120 days (instead of the ordinary limit of 30 days) for a failure to pay child support, provided that the sentence is suspended.

The question is, what is the nature of that suspended sentence? Does it include the regular conditions of probation applicable by default under Article 82 of G.S. Chapter 15A? May it include supervision by a probation officer? As I sometimes put it, is probation for contempt Probation with a capital P?

I don’t think there’s a clear answer.

The contempt punishment statute doesn’t actually use the word “probation,” but it does refer to suspending a sentence. In general, North Carolina long ago moved away from the notion of a “suspended sentence without probation.” See Official Commentary to G.S. 15A-1341 (“Subsection (b) specifies both supervised an unsupervised probation. These two categories replace the present [circa 1977] probation and release on suspended sentence; in this Article unsupervised probation is the equivalent of the present release on suspended sentence without probation.”). With that in mind, the reference to a suspended sentence is pretty much the same as saying “probation.”

But even if it is, I don’t think it necessarily follows that Article 82 kicks in. To the contrary, G.S. 15A-1341(a), which sets out the scope of Article 82, says that defendants may be “placed on probation as provided by this Article [82]” if (a) they are being sentenced under Structured Sentencing and the grid allows for probation, or (b) they are being sentenced for impaired driving. There is no mention of contempt. If you read that statute as an inclusive list of when Article 82 applies, then it arguably does not apply in contempt cases.

On the other hand, in the absence of any particular guidance in Chapter 5A, Article 82 of Chapter 15A makes a nice gap filler. That’s the logic the court of appeals used in State v. Burns when it held that regular probation procedures apply to G.S. 90-96 probation in the absence of some provision to the contrary. 171 N.C. App. 759, 761 (2005) (“In the absence of specifically enumerated procedures, those procedures set forth in Article 82 of Chapter 15A of our General Statutes regarding probation violations should apply.”). The question has never been squarely before the appellate courts, but they haven’t had much trouble citing to Article 82 statutes when evaluating probation imposed for contempt. See, e.g., State v. Key, 182 N.C. App. 624 (2007) (citing to G.S. 15A-1343(b1)(10)); Bishop, 90 N.C. App. at 506 (1988) (citing to G.S. 15A-1343 and G.S. 15A-1342(b)).

Whether a judge may order supervision by a probation officer in a contempt case is a particularly sticky question. Citing to G.S. 15A-1341(b), the court of appeals once wrote that contempt sentences may be “suspended for a term of probation, supervised or unsupervised.” Reynolds v. Reynolds, 147 N.C. App. 566, 572 (2001). That seems straightforward enough, but it wasn’t the ultimate issue in the case. Just last week in State v. Jordan the court of appeals affirmed a contempt sentence that included supervised probation, but there was no comment on that aspect of the sentence in the unpublished decision. Perhaps the best argument that supervised probation should not be ordered for contempt comes from State v. Gravette, 327 N.C. 114 (1990). In Gravette, the supreme court concluded that a judge could not—pursuant to G.S. 15A-1341 or as a matter of inherent authority—order a probation officer to supervise a pretrial defendant. To the extent that G.S. 15A-1341 makes no reference to contemnors, there is an argument that they should not be supervised either. In light of Gravette, Community Corrections disfavors supervising contemnors.

What procedures apply to violations of suspended contempt sentences? Do all the rules in G.S. 15A-1345 regarding jurisdiction and timing and bail and preliminary hearings apply? What about the Justice Reinvestment limitations on revocation authority? It’s hard to square some of those provisions with contempt because it is neither a felony nor a misdemeanor. State v. Reaves, 142 N.C. App. 629 (2001) (holding that contempt convictions do not count as prior convictions under Structured Sentencing). But even if the statutory probation violation procedures don’t apply to contempt, the constitutional due process principles on which those statutes are based surely require a similar type of notice and hearing before any suspended contempt sentence may be activated.

I realize that to this point I’ve raised more questions than answers about probation for contempt. Some issues—and some blog posts—are like that. The least I can do is conclude with a few practical thoughts.

First, given all the ambiguities set out above, a judge who wishes to suspend a contempt sentence should be clear about his or her intentions in the case. If, for example, the judge intends for the defendant to be subject to all of the regular probation conditions of G.S. 15A-1343(b), then he or she should say so. I don’t think the court should assume that they will apply by default even if not said aloud in court, as they would in an ordinary criminal case. Along the same lines, the judge would likely need to use a judgment form that lists all of the desired conditions; the conditions probably are not enforceable if the defendant does not receive them in writing. With some minor modifications, form AOC-CR-604 would probably do the trick. Finally, in light of all the ambiguities discussed above, judges and prosecutors may wish to consider a remedy other than contempt. In the child support context, a conviction for misdemeanor nonsupport under G.S. 14-322 provides a much clearer path to supervised probation—if that is the punishment the judge has in mind.