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.
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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.
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.