North Carolina Criminal Law NC Criminal Law

Do the Justice Reinvestment Act’s limitations on a judge’s authority to revoke probation apply in deferred prosecution and conditional discharge cases?

Defendants can be placed on probation as part of a deferred prosecution or conditional discharge. The statutes governing that probation don’t spell out every detail of what it looks like. Instead, they typically incorporate by reference the ordinary rules of Article 82 of Chapter 15A—the probation article. See, e.g., G.S. 15A-1341(a1) (“A person who has been charged with a Class H or I felony or a misdemeanor may be placed on probation as provided in this Article . . . .”). We know that “[i]n the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under G.S. 90-96.” State v. Burns, 171 N.C. App. 759 (2005).

One of the most important rules in Article 82 is that the court may revoke probation only for new crimes and absconding. G.S. 15A-1344(a). The court may also revoke probation for felony and DWI probationers who have served two prior periods of confinement in response to violation (CRV), and for misdemeanor probationers who have received two prior quick dips in the jail. G.S. 15A-1344(d2).

Of course, “revocation” means something different in the context of a deferral case than it does in regular post-conviction probation. It is not the activation of a suspended sentence. Rather, in a deferred prosecution case, it is an “order that charges as to which prosecution has been deferred be brought to trial.” G.S. 15A-1344(d). In a conditional discharge case, it is entry of judgment and sentencing. Notwithstanding those conceptual differences, the question remains: are the rules limiting the court’s authority to revoke among the “general probation provisions found in Article 82” that, under Burns, apply in deferral cases, too? Or does some “provision to the contrary” control, allowing probation to be revoked for any violation in deferral cases?

I don’t think there’s a clear answer.

The best argument that probation may be revoked for any violation is probably the language found in various conditional discharge statutes saying that, “upon violation of a term or condition of [conditional discharge probation],” the court may enter judgment and proceed as otherwise provided. Language to that effect appears in G.S. 90-96(a), G.S. 90-113.14(a) (toxic vapors), G.S. 15A-1341(a6) (misdemeanors and Class H and I felonies and drug treatment court), and G.S. 14-204(b)(5) (prostitution). Those laws refer to violation of “a term or condition,” without specifying that it need to be a violation of any particular condition. There is no similar language directly applicable to deferred prosecution probation.

As practical matter, the JRA’s three-strikes approach to technical violations strikes me as a poor fit for deferral cases. In my opinion (outlined here) those cases are ineligible for CRV or quick dips—the sanctions that qualify as strikes one and two. It seems unlikely that the legislature intended deferral cases to be entirely revocation-proof until the defendant committed a new crime or absconded, but no law unambiguously exempts those cases from the general rule.

The one type of conditional discharge that clearly sets out a rule different from the JRA is G.S. 90-96(a1). That lesser-used cousin of G.S. 90-96(a) says that a failure to complete drug education school—something that would be a mere technical violation in the context of a regular post-conviction probation case—“shall constitute grounds to revoke.” Indeed, upon receipt of information that the defendant has failed to complete the program, the court is required to revoke. That’s a departure from the general rule that the court has discretion on whether or not to revoke probation even in the face of a revocation-eligible violation.