Another stop on the recent North Carolina Judicial College Correctional Facilities Tour was the Burke CRV Center in Morganton. Today’s post shares what we learned about defendants ordered to serve 90 days of confinement in response to violation for a technical violation of probation or post-release supervision. Continue reading
Tag Archives: confinement in response to violation
The Justice Reinvestment Act created confinement in response to violation (CRV) as an alternative to revocation for technical violations (violations other than a new criminal offense or absconding). The theory was that CRV would serve as a temporary intervention for technical violations (90 days for a felony or up to 90 days for a misdemeanor), after which the offending probationer would return to supervision to finish his or her period of probation in the community. It doesn’t always happen that way. Many CRVs are “terminal,” in the sense that they are the last thing that happens in the probation case. Today’s post summarizes the different types of terminal CRVs.
In my view there are three types of “terminal CRVs.”
The first type of terminal CRV is one that uses up the remainder of a defendant’s suspended term of imprisonment. For example, when a misdemeanor probationer with a 45-day suspended sentence receives a 45-day CRV, that is a terminal CRV. Even if there were many months remaining on the period of probation when the court ordered the CRV, its completion would bring about the end of the case, because there can be no further probation supervision when there is no sentence left to suspend. In that regard, this type of terminal CRV is the functional equivalent of a revocation.
Obviously this type of terminal CRV is much more likely to arise in a misdemeanor case than a felony case. Felony maximum sentences are long enough that a 90-day intervention is unlikely to use up even the shortest felony suspended sentence. But for misdemeanor sentences—the vast majority of which are under 90 days—CRV was never a good fit. In fact, so common was the terminal CRV for misdemeanants (over half of them were terminal in 2016 according to data from the N.C. Sentencing and Policy Advisory Commission) that the legislature repealed CRV for Structured Sentencing misdemeanants, effective for persons placed on probation on or after December 1, 2015 (details here). For misdemeanants placed on probation after that date, CRV is not an option, and so there will be no more terminal CRVs for them.
I have heard people argue that this type of terminal CRV ought to include a felon whose CRV carries him beyond the point where he would be due for release to post-release supervision had the sentence been active. For instance, suppose a defendant with a 4-14 month sentence and one prior 90-day CRV was ordered to a second 90-day CRV. Is his suspended sentence “used up” when he gets to the point where he has 5 months of jail credit, given that the last 9 months of the maximum are actually for post-release supervision? In my opinion, no, for the reasons described in this prior post. I think the person should return to probation unless the full maximum has been served—but everyone should be aware that any subsequent “revocation” will actually result in an immediate release to post-release supervision.
The second type of terminal CRV is one where the defendant’s period of probation expires during his or her service of the CRV. For example, a defendant with a 36-month period of probation ordered at the 35-month point of the supervision period to a 90-day CRV would have a terminal CRV, because probation will expire before the CRV is complete. Sometimes probation will have expired even before the CRV is ordered. When a violation report is filed before probation expires, the court has jurisdiction to act on the case under G.S. 15A-1344(f). If the court orders CRV in that post-expiration period, the CRV will be terminal. (I suppose there is some argument that G.S. 15A-1344(f) does not empower the court to order CRV at all, because it mentions only extension, modification, or revocation.)
Six years into Justice Reinvestment, we still don’t have any appellate cases examining whether CRV confinement may permissibly extend beyond the expiration of the defendant’s period of probation. The special probation statute expressly forbids a split sentence from extending beyond a defendant’s period of probation. G.S. 15A-1344(e) (“No confinement other than an activated suspended sentence may be required beyond the period of probation . . . .”). The CRV statute, G.S. 15A-1344(d2), does not say anything about it one way or the other, but to the extent that we conceptualize it as a modification of probation, it seems like there’s at least an argument that it should end when probation does. (If that were the case, it would mean our 90-day CRV ordered at the 35-month point of a 36-month probation would stop after 30 days.) Corrections does not see it that way, and will carry out a full CRV even if probation expires in the middle of it.
The final type of terminal CRV isn’t a “natural” termination like type 1 (run out of suspended sentence) or type 2 (run out of probation period). It is, rather, a CRV followed by an affirmative termination by the judge. In fact, Community Corrections does not record these as terminal CRVs, but puts them in a separate category called CRV-and-terminate. According to the Sentencing Commission, courts entered a CRV-and-terminate 12 percent of the time in felony cases and 17 percent of the time for misdemeanors.
As a matter of training and departmental guidance, probation officers are discouraged from recommending a CRV-and-terminate. The felony CRV centers in particular are meant to be a temporary intervention where a probationer receives intensive behavior modification programming and then returns to supervision in the community. They are not generally intended as a place of confinement for a de facto “revocation-light” that winds up being the last action in the case.
These days, figuring out the permissible ways to respond to a probation violation is easy. All you need to know is the date of the offense for which the person is on probation. And the type of offense (felony, Structured Sentencing misdemeanor, or DWI). And the date the person was placed on probation. And the date of the alleged probation violation. And bear in mind, of course, that the person may be on probation for more than one offense, with different rules applicable to each case. Once you have all that—piece of cake! Continue reading →
Some felony probationers ordered to serve a period of confinement in response to violation (CRV) wind up spending more time behind bars than they would have if their probation been revoked. Continue reading →
What happens when a low-level felon serves a split and then gets quick-dipped, dunked, and eventually revoked? Today’s video post walks through a case like that from start to finish, including many of the jail credit wrinkles that have emerged since 2011. Long story short: things have gotten complicated. I hope you’ll take a look.
My next few posts will discuss this session’s legislative changes related to sentencing and corrections. Today’s post covers some pending changes related to confinement in response to violation (CRV, sometimes referred to as a “dunk”).
CRV is incarceration ordered in response to a technical violation of probation—meaning a violation other than a new crime or absconding. The CRV concept was created in 2011 as a centerpiece of the Justice Reinvestment Act. Drafters of that legislation noted that revoked probationers made up a big portion—over half—of North Carolina’s prison population. How to reduce that population? Change the law so that technical violators can be locked up for no more than 90 days. G.S. 15A-1344(d2).
There are many technical details associated with CRV—where it is served, how it works when a person is on probation for multiple convictions, and how jail credit gets applied to it, among others. I tried to address some of those issues in the FAQ post here. The CRV law has been amended multiple times since 2011 to clarify various things about it. In 2012: to remove the apparent requirement of a “terminal dunk” in short misdemeanor cases. In 2013: to make clear that CRV confinement must be served in one big chunk, not on weekends or other noncontinuous intervals.
That brings us to the changes for 2014, which relate to the rules for applying jail credit to a CRV. Under existing G.S. 15A-1344(d2), the rule for felonies and misdemeanors alike is that credit for any time spent awaiting a violation hearing at which a CRV is ordered must first be applied to the CRV. For example, if a person was held in jail for 20 days in advance of a violation hearing at which a 90-day felony CRV is ordered, the judge is required under existing law to credit the 20 days to the CRV, and the person will serve only 70 additional days. That prehearing credit cannot be “banked” to be applied only in the event of a later revocation. The law never said anything about whether other jail credit, such as pretrial confinement or time spent at DART-Cherry, could be applied to a later-imposed term of CRV, but that frequently happens in practice.
That crediting of time—especially the gathering up of credits beyond the mandatorily-credited prehearing confinement—was frustrating the Division of Adult Correction’s plan for CRV periods by making them too short. With credits applied, the average length of a felony CRV is around 75 days. And that is apparently not enough time for CRV to be the program-based behavior modification that DAC envisioned. They were hoping for a full three months to allow the offender to complete a tailored curriculum involving cognitive behavioral intervention, substance abuse treatment, and other programming as appropriate.
And so DAC sought and obtained a change to the law. A provision in the budget bill (section 16C.8.(a) of S.L. 2014-100) amends G.S. 15A-1344(d2) to provide that the 90-day period of CRV ordered for a felony “shall not be reduced by credit for time already served in the case.” Instead, “[a]ny such credit shall . . . be applied to the suspended sentence”—which means it will only be applied if the offender ever gets revoked. There’s nothing inherently wrong with that; it happens to every probationer with pretrial jail credit who completes probation without getting revoked. But it is a 180-degree turn from the original CRV rule, which was designed to cap the total incarceration (pre- and post-hearing) for a technical violation at 90 days.
For misdemeanors, the revised rule is different. In fact, the revised rule for misdemeanor CRV is that there is no rule. Amended G.S. 15A-1344(d2) neither requires nor forbids the crediting of any sort of confinement (pretrial or prehearing), giving the judge apparent flexibility to do what he or she would like. The change was made in recognition of the fact that for most misdemeanor probationers, the first CRV usually winds up being a “terminal” one, either because it uses up the entire suspended sentence or because the judge orders probation terminated upon its completion.
This change to G.S. 15A-1344(d2) is effective October 1, 2014, and applicable to probation violations occurring on or after that date. I read that applicability clause to refer to the date of the defendant’s offending behavior, not to the date of the violation hearing. If an offender is before the court for a string of technical violations that cross that effective-date threshold, the court should take care to note the particular violation(s) to which it is responding, and apply the appropriate credit rule accordingly.
To the extent that the change disadvantages a probationer by limiting the judge’s authority to apply credit, there may be some argument that it violates the Ex Post Facto Clause. On the other hand, if one views the suspended sentence as setting the total punishment in a given case, a change to the manner in which the time is served may not register as an increase in the defendant’s exposure. After all, regardless of the technicalities of the credit rules, the judge must always see to it that the defendant’s total time behind bars does not exceed his or her suspended sentence.
Finally, these changes to the credit rules should be viewed in the context of DAC’s broader plan with respect to CRV. For example, the Division has legislative approval to create two prison facilities devoted exclusively to CRV inmates—the “treatment and behavior modification facilities” mentioned in section 16C.10 of the budget. For men, a western facility in Burke County is on track to open in November, while an eastern facility in Robeson County should come online early next year. The plan for women is still under development. These facilities will apparently have a unique approach to staffing and security designed to facilitate the programmatic interventions described above—which CRV offenders will, after October 1, have a full 90 days to complete.
Today’s post is about a recurrent question related to jail credit for periods of confinement in response to violation (CRV). First, a 30-second refresher on the basics of CRV.
When a probationer commits a violation other than a new criminal offense or absconding, the court may order a period of confinement in response to violation. CRV is 90 days for a felon and up to 90 days for a misdemeanant. If a person is on probation for multiple offenses, CRV periods “shall run concurrently on all cases related to the violation.” G.S. 15A-1344(d2). After the defendant has received two CRV “strikes” in a particular case, he or she may be revoked for any subsequent violation. Any CRV periods served in the revoked cases “shall be credited pursuant to G.S. 15-196.1.” Id.
That brings us to today’s question. Suppose a defendant is on probation for three convictions with 8–19 month suspended sentences in each case, set to run consecutively in the event of revocation. Assume the conditions of probation are identical in all three cases. During his probation, the defendant commits a technical violation for which the court imposes a 90-day CRV in each case. As noted above, under G.S. 15A-1344(d2), these three CRV periods must be served concurrently. So the defendant serves 90 days in prison and returns to probation. How is that time credited if the defendant’s probation is later revoked?
It seems to me that the defendant must get 90 days of credit against each of the three sentences, for a total of 270 days. And I think that’s the case regardless of whether the sentences are run consecutively or concurrently upon revocation. The time was in fact served in each case, and no statute directs the court to disregard it when completing the revocation order in an individual case.
If that feels strange, it’s probably because it’s different from how we credit pretrial jail credit when a defendant is held on multiple charges. In that context, when a defendant winds up getting consecutive sentences, we do not multiply any shared credit for pretrial confinement by the number of consecutive sentences for which the defendant is imprisoned. That is so because G.S. 15-196.2 tells us not to multiply it. The reason for that rule is that when a judge winds up ordering consecutive sentences, we learn for the first time that the defendant has, to that point, been serving the only first sentence in the consecutive string, and that service of the second and subsequent sentences is yet to come. And so we credit the pretrial confinement only once.
Neither G.S. 15-196.2 nor the rationale behind it applies to CRV. First, G.S. 15A-1344(d2) makes no reference to the non-multiplication rule of G.S. 15-196.2; it says only that prior CRV periods shall be credited pursuant to G.S. 15-196.1. Second, unlike pretrial confinement, CRV is mandatorily and unmistakably concurrent from the get-go. Yes, the remainder of any activated sentences may wind up being served consecutively, but that does not trump the legislature’s command that any portion of the sentences served as CRV “shall run concurrently.”
I should note that not everyone agrees with me on this. I know some clerks will not credit CRV time against multiple cases, and I’ve certainly heard from judges, prosecutors, and probation officers who find that sort of double (or triple, as in my example above) counting of the time to be downright offensive. To be sure, crediting of the time in this way lessens the impact of any consecutive suspended sentences ordered by the court. But I don’t see how the law can be read to allow for the un-crediting of time actually served in each case, when the General Assembly has ordered that portion of it to be served concurrently.
The issue can be avoided. The court is never required to order CRV. If a defendant is on probation for multiple cases and violates probation in each of them, the court could order CRV in only one of the cases and use a different response in the others. There is a trade-off in the sense that the probationer does not accrue a CRV “strike” in the other cases. But it turns out that hardly anybody gets to his or her third CRV strike before probation ends. One of the following things almost always happens first: the period of probation expires or is terminated, the suspended sentence gets used up (especially in misdemeanor cases), or the probationer commits a new crime or absconds.
There are frequently asked questions, and then there are very frequently asked questions. Regarding Justice Reinvestment, there has been no more frequently asked question than this: Can you appeal a CRV? We learned this morning that you cannot. The court of appeals held in State v. Romero that there is no right to appeal from a period of confinement in response to violation imposed under G.S. 15A-1344(d2).
Mr. Romero was a felony probationer who committed technical violations of probation in 2012. In response, the court ordered a 90-day CRV. The defendant appealed, but the State filed a motion to dismiss the appeal on the grounds that there is no statutory right to appeal a CRV.
The court of appeals agreed. The court noted that G.S. 15A-1347 allows a probationer to appeal only when the court “activates a sentence or imposes special probation.” Because CRV is neither of those things, and because a defendant’s right to appeal is purely a creation of state statute, the court concluded that there is no right to appeal a CRV. The court rejected the defendant’s argument that imposition of a CRV is a final judgment of a superior court, generally appealable under G.S. 7A-27(b).
In a footnote, the court declined to express any opinion about whether a different rule would apply to a so-called terminal CRV—that is, one that uses up the defendant’s entire remaining suspended sentence. Slip op. at 6 n. 1. Mr. Romero had additional time left to serve on his 6–8 and 18–22 month felony sentences, and so the court didn’t need to consider whether his 90-day CRV was a “de facto revocation” for purposes of G.S. 15A-1347.
Romero involved an appeal from superior court to the appellate division, but the same rationale would seem to preclude de novo appeals from district to superior court. The same statute (G.S. 15A-1347) governs, and it likewise allows appeals from district to superior court only when the district court judge “activates a sentence or imposes special probation.” On the other hand, given the typical length of suspended sentences for misdemeanors, district court CRVs are much more apt to be terminal CRVs, and thus may constitute the type of “de facto revocation” on which the court of appeals expressly reserved judgment in Romero.
Notwithstanding Romero, I continue to think that other avenues of review may be possible for some errors related to CRV. I discussed those briefly in this prior post (FAQ number 14), and on pages 72–73 of the Justice Reinvestment Act book.