G.S. 90-96 sets out a conditional discharge option for certain drug offenses. A conditional discharge is different from a deferred prosecution. In a conditional discharge program, the defendant is convicted (either after a trial or by pleading guilty), but then placed on probation without the court actually entering judgment in the case. If the defendant succeeds on probation, the court completes a “discharge and dismissal” and the defendant is left without a conviction. If the defendant fails on probation, the court enters judgment and sentences the defendant—often to probation again, but this time regular, post-conviction probation.
I’ve said it before and I’ll say it again: G.S. 90-96 is complicated. I get as many questions about it as any other law. Justice Reinvestment made G.S. 90-96 mandatory for consenting defendants in 2011, but that requirement turned out to be troublesome enough in practice that the law was made discretionary again in 2013 (as described here).
Despite the waxing and waning of G.S. 90-96, similar conditional discharge options have recently popped up elsewhere in the law. In 2013, a 90-96–style conditional discharge was made mandatory for defendants convicted of prostitution for the first time. G.S. 14-204(b). A bill signed into law week, S.L. 2014-119 (H 369), took things even further, authorizing conditional discharge for any misdemeanor or Class H or I felony that would be eligible for a deferred prosecution. This broad conditional discharge authorization is set out in new G.S. 15A-1341(a4). As under the existing statutory deferred prosecution law, a defendant is eligible for a conditional discharge only when the court finds that (1) all victims have been notified, (2) the defendant has not been convicted of any felony or any misdemeanor involving moral turpitude, (3) the defendant has not previously been placed on probation, and (4) the defendant is unlikely to commit another offense other than a Class 3 misdemeanor. New G.S. 15A-1341(a5) grants similar authorization for defendants eligible for drug treatment court. The new law is effective December 1, 2014, and apparently may be applied to any conviction before the court on or after that date, regardless of the date of offense.
The new law includes some additional technical and conforming changes related to conditional discharges. Under amended G.S. 15A-1342, the probation that accompanies the conditional discharge may not exceed two years. Interestingly, that language is written into a statute that applies to all conditional discharges, not just those authorized by the new law (except those for prostitution under G.S. 14-204, which are subject to a one year maximum term). That means the probation period in G.S. 90-96 cases is now capped at two years. Previously I would have said it could be as long as five years, so the two-year limitation is a big change in theory. It may not make much difference in practice, though; my sense is that 12 months is the typical term of probation in a 90-96 case (please correct me if I’m wrong about that).
A change to G.S. 15A-1342(a1) makes clear that supervised probation is authorized for a conditional discharge imposed under new G.S. 15A-1341(a4) (conditional discharge for any misdemeanor or Class H or I felony), (a3) (conditional discharge for prostitution), and (a5) (conditional discharge for drug treatment court). The law makes no mention of G.S. 90-96, perhaps giving rise to an argument that supervised probation is no longer authorized in those cases. I have always assumed that supervised probation is authorized in G.S. 90-96 cases under the general theory that, unless otherwise provided by law, G.S. 90-96 probation is just like any regular probation case. State v. Burns, 171 N.C. App. 759 (2005) (“In 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.”). But now that the law makes specific provision for supervised probation for other enumerated types of conditional discharges, G.S. 90-96 becomes conspicuous in its absence. I doubt the legislature intended to de-authorize supervised probation for G.S. 90-96 defendants, however.
Speaking of legislative intent, what was the motivation behind this expansion of the conditional discharge law? I don’t know for sure. An earlier version of the bill styled the change as “conditional discharge in lieu of deferred prosecution,” substituting the former for the latter in G.S. 15A-1341(a1). A benefit of the conditional discharge approach from the State’s point of view—flagged by a legislator in a media report—is that there is a guilty plea in advance “in case they don’t meet the conditions set by prosecutors to have the charge dropped.” In a traditional deferral there is no guilty plea in advance, State v. Ross, 173 N.C. App. 569 (2005)—which sometimes leads to frustration when a defendant who does not satisfy the terms of the agreement ultimately declines to plead guilty. Nevertheless, the final version of the law added the conditional discharge option but left the deferred prosecution option in place, giving prosecutors apparent flexibility to choose between the two options.
I am interested to hear your thoughts on how this broad authorization for conditional discharges might change things in practice. It strikes me as potentially helpful statutory authority to do some of the things people have tried to do with PJCs over the years—sometimes with results that left everyone unhappy. On the other hand, all the sticky questions about revocations and appeals and collateral consequences that arise in the context of G.S. 90-96 will now be expanded to a broader set of cases.
