Advanced Supervised Release was created in 2011. Today’s post is a video that explains who is eligible for ASR, how to calculate an ASR date, how to fill out an ASR judgment, and what the law means for the defendant as a practical matter.
Tag Archives: advanced supervised release
Among the two dozen or so states that have participated in Justice Reinvestment, North Carolina has become something of a darling. The goal of the initiative (summarized in this infographic) is to reduce spending on corrections, and North Carolina has done that. Since the day the law came into effect, we have 2,000 fewer prison inmates, and—in something of a surprise—10,000 fewer probationers. (As I was looking into this, I noticed that there are 20,000 fewer probationers in North Carolina today than there were in early 2008!) The general view is that the initiative is working well here, and other states are looking to copy our model. Commissioner of Adult Correction David Guice has appeared before congressional staff to talk about North Carolina’s experience, and just last week spoke to Alabama’s Association of County Commissioners about our success, highlighting our use of short confinement periods (quick dips) to respond to technical violations of probation.
With all this attention, it seemed a good time to share some data that show how Justice Reinvestment Act (JRA) “tools” are being used in practice in North Carolina. (Previous statistical reviews are available here and here.) All figures come from the excellent research staff of the Division of Adult Correction and Juvenile Justice.
Delegated authority. Probation officers can, after the JRA, impose more conditions on probationers through delegated authority than they could before the law came into effect. Without action by the court, officers can impose conditions like community service, substance abuse treatment, electronic house arrest, a curfew, and educational programs. The officer may impose any of those conditions in response to a violation, or (unlike pre-2011 law) without a prior violation if the probationer has been “determined to be high risk based on the results of the risk assessment.” G.S. 15A-1343.2(e) and (f). Probation officers refer to the latter option as “high risk delegated authority.” Since the start of 2013, officers used delegated authority over 3,000 times, with over two-thirds of that being the post-violation variety. Officers used high risk delegated authority 969 times.
Quick dips. The JRA added a new form of delegated authority through which probation officers can jail certain probationers for two or three days in response to a violation of probation. Officers may only do that after following a special procedure that includes the offender’s waiver of the rights to a hearing and counsel. G.S. 15A-1343.2(e) and (f). Quick dips were scarcely used at all in 2012, but things have picked up considerably since then. In fiscal year 2013/14, officers imposed 1,448 quick dips. Almost two-thirds of them (903) were of the 3-day variety.
My understanding is that very few judges take the affirmative step of “un-delegating” the authority for a probation officer to impose a quick dip, although there are a handful that do so in every case. I have not heard of any litigation regarding the constitutionality of officer-imposed dips, which I wrote a little bit about here.
A preliminary analysis of the effectiveness of quick dips shows promise: a group of offenders who received one quick dip in response to noncompliance were less likely to get revoked and less likely to abscond than a matched group of undipped offenders. A summary of the analysis, shared with DAC’s permission, is available here. It’s a small sample, but the results are interesting and encouraging.
ASR. Another new arrow in the JRA quiver is Advanced Supervised Release (ASR). The law, which allows a person serving an active sentence to earn an early release by completing certain “risk reduction incentives” in prison, is summarized here. Statewide, over 300 ASR sentences have been entered since the law came into effect. Unlike quick dips, however, there are indications that ASR usage has actually slowed in recent months. An ASR sentence cannot be imposed over the objection of the prosecutor, so it’s possible that the law is not being used because most prosecutors object. Or it may just be that nobody brings it up. It’s too soon to have any meaningful data about whether ASR risk reduction incentives actually reduce risk.
I would love to hear your thoughts about how these new legal tools are being used in practice. Officials in Alabama, Michigan, and other states thinking of taking the JRA plunge might also learn from our collective experience.
The Justice Reinvestment Act created a new early release program called Advanced Supervised Release (ASR). In short, the law allows certain prison inmates to get out of prison early if they complete “risk reduction incentives” while they are incarcerated. I wrote about the basics of the law here, and covered a glitch in the law’s effective date here. Based on the frequency of questions I’m getting about ASR the law is starting to be used more often. As of a few weeks ago, about 70 sentences entered around the state have included an ASR date. Those cases come out of fewer than 20 counties, with Gaston, Johnston, and Henderson accounting for over half.
Some judges and prosecutors have said they won’t feel comfortable ordering ASR dates until they learn more about the risk reduction incentives that ASR inmates will be required to complete in prison. By statute, the programs are required to consist of treatment, education, and rehabilitative programs designed to reduce prisoners’ likelihood of reoffending. G.S. 15A-1340.18(b). Up until recently I didn’t have much additional information to offer about the nature of the actual incentive programs. I had been told that for some inmates, risk reduction incentives would largely be the same types of activities that net a person earned time, like work around the prison unit.
A few weeks ago the Division of Adult Correction published its first policy on ASR. Available here, it sheds a little more light on what risk reduction incentives an ASR inmate will be expected to complete. ASR inmates will undergo an assessment during admission processing that will determine a risk level and identify criminogenic needs. (The assessment is very similar to that used for probationers, described here.) Based on the results of the assessment, the inmate will be assigned to complete “individually prescribed Risk Reduction Incentives” that fall into one of three categories: programs, services, or activities. The policy itself does not provide examples from each category, but programs would include things like cognitive behavioral interventions (like this curriculum) and substance abuse treatment (like the curriculum described here), whereas services and activities would tend to be things that involved less direct interaction with prison staff, like Alcoholics Anonymous. The general idea is to preserve scare programmatic resources for those whose assessments show the most acute needs. In fact, my understanding is that for a defendant with demonstrated needs, being ordered into ASR is a way to get top priority for access to programs—something for the court to consider when crafting an appropriate judgment.
The policy acknowledges the statutory provision that requires an inmate to be released on his ASR date even if he or she cannot complete the assigned risk reduction incentives, if the failure to complete them is not the inmate’s fault. G.S. 15A-1340.18(e). A situation I have heard about more than once that illustrates the no fault provision is a defendant who, at sentencing, has pretrial jail credit in excess of his or her ASR date. The defendant obviously has not completed any risk reduction incentives in the jail, but DAC is allowing immediate release onto ASR because the failure to complete incentives was not the defendant’s fault.
The policy also lays out the procedure for removing an inmate from the program for failing to participate in prescribed incentives or incurring certain disciplinary infractions. Soon we’ll have data on how many defendants ordered into ASR actually complete their assigned incentives, and eventually we’ll be able to report on whether those inmates have lower recidivism rates. In the meantime, I would love to hear from you about how ASR is being talked about and used around the state.
In this earlier post I wrote about Advanced Supervised Release (ASR), a new program created by the Justice Reinvestment Act (JRA) that allows certain defendants to be released from prison before serving their minimum sentence. The law is set out in G.S. 15A-1340.18. To sum it up, defendants who fall in certain grid cells who receive an active sentence may, in the discretion of the sentencing judge and the prosecutor, be admitted to the ASR program, through which they can secure an early release from prison by completing certain “risk reduction incentives.” Defendants who complete those incentives in a timely fashion get released onto post-release supervision on their ASR date; defendants who don’t serve a “regular” sentence, as dictated by the minimum and maximum sentence imposed by the court. When I wrote about the law last September, I noted that only time would tell how it would be integrated into practice. Well, time has passed, and some issues have emerged.
First, it’s worth noting that people are using ASR. A common refrain in many of my JRA training sessions was that prosecutors—over whose objection an ASR date may not be set—would always object. That has not happened.
Second, I’m told that many of the ASR dates that have been set have been calculated incorrectly. In cases where the sentence imposed is from the presumptive or aggravated range, there really isn’t any calculation to be done. The ASR date in those cases is just the lowest mitigated minimum sentence the defendant could have received—in other words, the lowest number in the defendant’s cell on the sentencing grid. Only when the sentence imposed is from the mitigated range is math necessary; in those cases, the ASR date is 80% of the minimum sentence imposed. The law does not include a rounding provision, so a Prior Record Level II defendant sentenced at the bottom of the mitigated range to 9–20 months for a Class G felony would, if admitted to the ASR program, have an ASR date of 7.2 months (9 x 0.80), and that is what should be recorded on the judgment form.
Finally, there’s the effective date issue—some might say glitch—I noted in my earlier post. Under Justice Reinvestment, the ASR law applies to persons entering a plea or who are found guilty of an offense (convicted, essentially) on or after January 1, 2012. S.L. 2011-192, sec. 5.(e). The law assumes that anyone ordered into the program will be released to post-release supervision on the ASR date upon completing his or her risk reduction incentives. The problem is that Class F–I felons with offense dates before December 1, 2011—some of whom will be convicted after January 1, 2012—do not receive post-release supervision at all. I wrote in September that I wasn’t sure how ASR, Advanced Supervised Release, would apply to a group of defendants who simply had no supervised release to be released to in advance.
This turns out not to be a hypothetical issue any longer, as there have already been low level felons with offense dates prior to December 1, 2011 ordered into ASR. As I understand things, those defendants fall in a sort of ASR no man’s land: the prison system feels compelled by G.S. 15A-1340.18(e), which applies to the offenders based on their conviction date, to release them on the ASR date if they complete their risk reduction incentives, but the Post-Release Supervision and Parole Commission sees no basis for supervising them on post-release supervision based on the offenders’ offense date. I don’t disagree with either of those positions—the law says what it says—but the upshot is that the ASR date for these offenders is really an early outright release date. With no supervised release and thus no prospect of the remaining time on the maximum sentence of imprisonment being activated in the event of a violation, it’s just advanced release. The issue eventually goes away as Class F–I felony cases with pre–December 1, 2011 offense dates work their way through the system. In the short term, however, judges, lawyers, and defendants need to be aware of how the law is being applied to make informed decisions about who will be admitted to the program and what that will mean as a practical matter.
The Justice Reinvestment Act (S.L. 2011-192) creates a new program called Advanced Supervised Release (ASR). Through it, certain inmates will be eligible for release from prison before serving their minimum sentence. According to literature prepared by the Council of State Governments (CSG) Justice Center, a non-profit group that helped develop the legislation, the purpose of ASR is to “[p]rovide incentives for people incarcerated to complete programs that would reduce the likelihood of that person reoffending.” Justice Reinvestment in North Carolina: Analysis and Policy Framework to Reduce Spending on Corrections and Reinvest in Strategies to Increase Public Safety, 17. This post summarizes the law and examines some of its technicalities.
(Note: House Bill 335, which has been ratified by the General Assembly but not yet signed into law by the governor, makes some technical corrections to the ASR law. This post assumes those technical corrections will become law, but if that doesn’t happen I’ll let you know and amend the post accordingly.)
Effective for defendants who enter a plea or are found guilty on or after January 1, 2012, new G.S. 15A-1340.18 allows a sentencing judge, without objection from the prosecutor, to order the Department of Correction to admit an eligible defendant into the ASR program. The law requires DOC to release the defendant on a predetermined ASR date if he or she completes certain risk reduction incentives while in prison (or is unable to complete them through no fault of his or her own). DOC may only admit to ASR those defendants for whom the program is ordered in the sentencing judgment. (That limitation is clearer under the technical amendments set out in House Bill 335 than it was in the original legislation.) Each of those italicized terms is discussed in greater detail below.
Eligible defendant. Only defendants convicted and sentenced based upon the following felony classes and prior record levels are eligible for ASR:
Class E, Prior Record Level I-IV
Class F, Prior Record Level I-V
Class G, Prior Record Level I-VI
Class H, Prior Record Level I-VI
The law also limits ASR eligibility to defendants sentenced to an active sentence. Defendants initially sentenced to probation but later revoked apparently are not eligible for ASR.
(Part of that catchment area may present a problem in the short term. The ASR law says that offenders will be released from prison early and placed on post-release supervision. The law’s effective date says ASR is available to eligible defendants convicted on or after January 1, 2012, but for offenses committed before December 1, 2011, only Class B1 through E felons get post-release supervision. Many Class F, G, and H felons convicted after January 1 will have offense dates before December 1, 2011—and therefore won’t have any supervision to be released to in advance. It’s unclear whether those defendants simply cannot be ordered to ASR, or whether the ASR law itself fills that gap when it says in new G.S. 15A-1340.18(g) that a defendant “released on the ASR date is subject to post-release supervision under this Article”—meaning Article 81B, Structured Sentencing, where the ASR law is codified. Our existing post-release supervision law is set out in Article 84A of Chapter 15A, not Article 81B, so maybe the supervised release envisioned in the ASR law is something altogether different. Either way, the problem goes away relatively quickly; under Justice Reinvestment, all felonies committed after December 1, 2011—regardless of offense class—get post-release supervision.)
ASR date. Under G.S. 15A-1340.18(d), the ASR date is the shortest mitigated sentence (and that presumably means minimum sentence) that the defendant could have received based on his or her conviction offense and prior record level. If the defendant is sentenced in the mitigated range, then the ASR date is 80 percent of the minimum sentence imposed. (Note that for defendants sentenced at or near the top of the mitigated range, the 80 percent rule generates a later ASR date than the rule for presumptive or aggravated sentences. For instance, the ASR date for a Class D, Level III offender sentenced in the aggravated range to 105–138 months is 51 months. The ASR date for the same offender sentenced in the mitigated range to 65–90 months is 52 months.) Given the way the ASR date is defined, it appears that drug trafficking sentences are ineligible for the program–there simply is no mitigated range in the drug trafficking sentencing regime set out in G.S. 90-95.
Risk reduction incentives. New G.S. 15A-1340.18(b) authorizes DOC to create risk reduction incentives for defendants admitted to the ASR program. Exactly what those incentives will be has yet to be determined, but the law states that they will consist of treatment, education, and rehabilitative programs designed to reduce participating offenders’ likelihood of reoffending. Whatever the programs turn out to be, DOC must release inmates who complete them (or, as mentioned above, who are unable to complete them through no fault of their own) on the ASR date.
Procedurally, a judge who wants a defendant to receive ASR will still impose a regular minimum and maximum under Structured Sentencing—that’s the sentence that will kick in if the defendant gets terminated from the program or revoked from early release. G.S. 15A-1340.18(d). The law also requires that the “defendant shall be notified at sentencing that if the defendant completes the risk reduction incentives as identified by the Department, then he or she will be released on the ASR date.” G.S. 15A-1340.18(e). Presumably the sentencing judge will give that notification when pronouncing judgment, although the law states that DOC is ultimately responsible for determining the exact date of the release. Id.
Offenders released early onto post-release supervision through ASR are subject to the new violation rules set out in G.S. 15A-1368.3(c) (discussed here), with the caveat that once an ASR offender has been returned to prison for three, three-month periods of confinement (for non–new crime, non-absconding violations by an offender who isn’t a sex offender), a subsequent violation results in a return to prison for the time remaining on the maximum imposed term. There is no prospect of further release to the community “regardless of the amount of time remaining to be served.” G.S. 15A-1340.18(g). And depending on the defendant’s underlying sentence, the amount of time remaining to be served could far exceed the 9 or 12 months hanging over the head of the ordinary post-release supervisee. The maximum is not re-pegged to the ASR date. Consider the following example.
Suppose a Class E, Level I offender is sentenced in the presumptive range to 20–36 months, active, and ordered into the ASR program. The defendant’s ASR date will be 15 months—the shortest mitigated sentence for a Class E, Level I offender. If the defendant completes risk reduction incentives in prison, DOC must release him onto post-release supervision after 15 months. The period of supervised release in the community is 12 months, but the sentence hanging over his head is 21 months (less any earned time he might earn during his 15 months in prison).
The ASR date would be the same (15 months) if the defendant were sentenced in the aggravated range. If the defendant received a mitigated sentence of, say, 15–30 months, the ASR date would be 12 months (80 percent of 15).
The law requires DOC to adopt policies and procedures for documenting an inmate’s progress through the ASR program and for terminating inmates from the program due to a lack of progress or pattern of noncompliance with the program or other rules or regulations. (The same statute also directs DOC to adopt policies for “the assessment” to occur at diagnostic processing, but there is no other reference to an assessment in the law.) If an inmate is terminated from the ASR program, the ASR date is nullified and the defendant’s release date is determined based on the regular minimum and maximum term imposed by the court at sentencing. Even a prisoner who has already completed the assigned risk reduction incentives can see his or her ASR date nullified on account of noncompliance with DOC rules or regulations.
ASR is not without controversy. Similar early release plans have cropped up in other states, largely as a cost-cutting measure, but not all of them have survived. One of the states (Wisconsin) highlighted in the CSG materials cited in the opening paragraph of this post recently repealed its program after only a few years. In North Carolina the law is the first exception to the cardinal Structured Sentencing rule that everyone serves the minimum. G.S. 15A-1340.13(d). It would be an exaggeration, though, to say that ASR is a return to the Fair Sentencing days when, in 1993 for example, the average felon served less than 20 percent of his or her sentence before being released. See The North Carolina Sentencing and Policy Advisory Commission: A History of Its Creation and Its Development of Structured Sentencing, 5. And ASR preserves a measure of truthfulness to the extent that it is a front-end determination that must be announced to the defendant at sentencing.
It will be interesting to see how (and how often) the law will be used. Only time will tell, but perhaps your comments will give us a clue.