A recent case from the court of appeals helps inform our understanding of what it means to abscond from probation under the statutory absconding condition in G.S. 15A-1343(b)(3a). Continue reading
Tag Archives: absconders
What Absconding Isn’t
The Absconding Donut Hole
In 2012, a person on supervised probation for an offense that occurred before December 1, 2011 moves to another state without permission. Months later he is arrested there and brought back to North Carolina for a violation hearing. May he be revoked for absconding? I don’t think so. This post discusses why.
Effective for offenses committed on or after December 1, 2011, the Justice Reinvestment Act made it a regular condition of probation that a defendant not “abscond, by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising probation officer.” G.S. 15A-1343(b)(3a). The new regular condition is the first true absconding condition in North Carolina. In fact, aside from a brief mention in the Crime Victims’ Rights Act (G.S. 15A-837), it is the first use of the word “abscond” in the criminal law statutes. Previously, offenders alleged to be “absconders” were generally violating one of two statutory conditions of probation: the “remain within the jurisdiction” condition or the “report as directed . . . to the officer” condition. The absconding terminology was derived from Community Corrections policy, not the law. The new absconding condition was initially made effective for “probation violations occurring” on or after December 1, 2011. S.L. 2011-192, sec. 4.(d). But that didn’t make sense—how could a condition become effective only upon a violation of it?—so the effective date clause was amended by a technical corrections bill to make the law applicable to offenses committed on or after December 1, 2011. S.L. 2011-412, sec. 2.5.
One of the major changes made by the JRA is that the court can only revoke probation for violations of the “commit no criminal offense” condition, absconding, or for probationers who have already received two periods of confinement in response to violation. The statutes setting out courts’ revocation authority for absconders, G.S. 15A-1344(a) and -1344(d2), both refer explicitly to violations of the new statutory absconding condition, G.S. 15A-1343(b)(3a), not to absconding generally. Thus, violations of other conditions (like the “remain within the jurisdiction” condition or the “failure to report to the officer” condition) appear to be ineligible for revocation, even if Community Corrections refers to them as absconders.
The problem, of course, is that thousands of probationers are not subject to the statutory absconding condition. As discussed in the opening paragraph above, that new condition only applies to probationers with offense dates on or after December 1, 2011—a cohort that is only recently starting to come onto probation in large numbers. With that in mind, in various JRA training sessions I have stressed the distinction between “statutory absconders,” who may be revoked, and “policy absconders” (people Community Corrections calls absconders but who are not subject to the statutory absconding condition), who apparently may not be revoked. You can listen to a discussion of the issue in this free webinar, presented to all probation officers in November 2011, beginning around the 31-minute point.
I have received lots of calls in the past two weeks about offenders falling in this “donut hole”—the apparent gap created by the effective date of the absconding condition and the wording of the statutes limiting judges’ authority to revoke. I’m not sure there’s much that can be done about it. Some have asked if the judge can add the statutory condition for an offender on probation for an offense that occurred before December 1, 2011, just in case the offender absconds in the future. Perhaps, although I think there would be a pretty good argument that, in light of the effective date for the new regular statutory absconding condition, any “don’t abscond” condition added to an older case is really just a special condition under G.S. 15A-1343(b1)(10), and still not a permissible basis for revocation.
None of this is to say that offenders not subject to the statutory absconding condition get a free pass. Violations of the “remain within the jurisdiction” condition or the “failure to report” condition are still technical violations eligible for confinement in response to violation (CRV), special probation, or some other modification of probation. And if the offender allegedly absconded before December 1, 2011, he or she would be eligible for revocation under the applicable prior law; the JRA’s limits on judges’ revocation authority only kicked in for violations occurring on or after December 1, 2011. So, if an offender who disappeared a long time ago turns up now, he or she may not fall into this so-called donut hole at all.
Even for offenders actually subject to the new statutory absconding condition, it is not entirely clear from the language of the condition itself what it means for a probationer to avoid supervision, or how long a person’s whereabouts must be unknown before he or she becomes an absconder. I think those thresholds will, to some degree, be shaped by other conditions to which the probationer may be subject and by the contact frequency standards associated with his or her supervision level. Additionally, probation officers are still required as a matter of their internal policy to conduct a specialized investigation before declaring that an offender has absconded. That investigation includes attempting to contact the offender by telephone, visiting the offender’s residence in the daytime and in the evening, contacting the offender’s landlord and neighbors, visiting the offender’s workplace or school, contacting the offender’s relatives and associates, and contacting local law enforcement, including the jail. Section of Community Corrections Policy § E.0503.
Absconding from Probation
What does it mean to “abscond” from probation supervision? “Absconder” is not defined statutorily; rather, it is defined in Division of Community Corrections (DCC) policy as “an offender who is actively avoiding supervision by making his/her whereabouts unknown to the supervising officer.” DCC makes a searchable list of all absconders available to the public here (click on the absconder tab at the top of the page, and you can search by last name or by county). Statewide, there are about 12,000 probationers who have absconded probation – about 10% of all supervised probationers. That’s down from the 14,000 figure the News & Observer frequently cited in its “Losing Track” series, but obviously still a high number. One of the reasons the number stays so high is that district attorneys and DCC are disinclined to remove anyone from the list, even for cases that would have expired many years ago. Rightly so – as I’ll discuss in a minute, there’s no other way to retain jurisdiction over a probationer who might someday turn up. So, the 12,000-probationer list, which undoubtedly includes a good number of bad people “actively avoiding supervision,” probably also includes a fair number of low-risk folks who might have changed addresses, moved out of the state, gotten married and changed names, been hospitalized, or died. Regardless, it’s a bad situation for everyone, including court officials who have to explain why a handful of decades-old cases make it look like it takes 7 months to resolve the average probation violation. I digress.
Back to my original question: what does it mean to abscond probation? As I said, the General Statutes don’t really mention absconding at all, except in G.S. 15A-837(a)(6), which places on DCC a duty to inform crime victims within 72 hours when a victim has absconded supervision. That may be tricky, though, because a probationer doesn’t become an absconder the moment he or she misses a curfew check. Here are DCC’s policy requirements for declaring someone an absconder:
Suppose all these requirements are met and an officer files a report alleging that a person absconded. Is it a problem that hardly anyone has as an explicit condition of probation that says “don’t abscond”? No. Depending on the circumstances, absconding probably constitutes a violation of multiple conditions of probation – G.S. 15A-1343(b)(2) (remain within the jurisdiction), G.S. 15A-1343(b)(3) (report to a probation officer as directed), and other conditions in certain cases. And we know from a recent court of appeals case that notice of the offending behavior – even if not tied to a particular condition – gives a probationer sufficient notice of the alleged violation under G.S. 15A-1345(e). State v. Hubbard, __ N.C. App. __ (2009). Nevertheless, if a violation report alleges that a person absconded, it seems to me that the probation officer should be prepared to testify at the violation hearing that he or she fulfilled all the necessary administrative requirements before declaring the probationer an absconder.
Finally, note that absconder violations are not immune from the jurisdictional requirements that apply to all probation violations – even if the State is unable to hold the hearing before the period of supervision expires precisely because the probationer can’t be found. The requirement in G.S. 15A-1344(f) that the State file a written violation report before the probation term expires to preserve the court’s ability to act applies with equal force to absconders. State v. High, 183 N.C. App. 443 (2007). Under prior law, the fact that a person had absconded might have been relevant to the court’s determination of whether the State had made a “reasonable effort to notify the probationer and to conduct the hearing earlier,” but legislation passed last year (S.L. 2008-129) did away with that requirement for violation hearings held after December 1, 2008. So, cases like State v. Black, __ N.C. App. __, 677 S.E.2d 199 (2009) (holding that a court lacked jurisdiction to revoke a defendant’s probation after expiration when the State failed to make the requisite “reasonable efforts”), should, except for those already in the appellate pipeline, be a dying breed.