A legislative session wouldn’t be complete without a new jail credit rule for confinement in response to violation (CRV). Continue reading
Tag Archives: confinement in response to violation
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in response to violation (CRV) wind up spending more time behind bars than they would have if their probation been revoked.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.
A frequently asked question of late is whether a judge may still impose special probation (a split sentence) in a probation case. Apparently the question arises out of a sense that the new forms of confinement created by the Justice Reinvestment Act—short term confinement for 2–3 days (“quick dips”) and confinement in response to violation (CRV, or “dunks”)—are now the only proper form of probationary confinement.
Reports of the death of the split sentence are exaggerated. The new types of JRA confinement are certainly similar to a split sentence, but they are statutorily distinct and did not replace it. The statutes authorizing special probation, G.S. 15A-1351(a) for splits imposed at sentencing and G.S. 15A-1344(e) for splits imposed as a modification of probation, were not repealed or amended by the JRA.
Even if the split sentence laws are still on the books, I can think of reasons they might be used less frequently now. First, for offenses committed on or after December 1, 2011, the judge is not required to impose any particular conditions of probation to make the sentence intermediate as required by an “I” block on the sentencing grid. My sense is that under prior law, when the judge was required to impose one of the six intermediate conditions to make a sentence intermediate, a short split sentence (perhaps to time already served) was often the intermediate condition of choice. With that requirement gone, I suspect the number of splits may go down.
Second, CRV may be preferable to a split sentence (at least from the State’s point of view, generally speaking) because only receipt of two CRV periods qualifies a person for revocation based on an additional technical violation. A prior violation responded to with a split sentence does not count as a CRV “strike” setting a defendant up for eventual revocation. There may therefore be times when the prosecutor is inclined to ask for and the judge is inclined to impose CRV—even when 90 days might be a longer confinement period than anyone thinks is necessary.
But I don’t expect split sentences to go the way of the dinosaur any time soon. The court can do certain things with a split sentence that it cannot do with CRV. First, in felony cases, CRV is a bit of a blunt instrument: a felony CRV period must be 90 days, no more and no less (unless the defendant has less time than that remaining on his or her suspended sentence). A split sentence, on the other hand, may be as short as the court would like. Second, split sentences may be served in noncontinuous periods, like weekends—a popular way to allow defendants to keep a job or care for family. By contrast there is no statutory provision allowing CRV to be served in noncontinuous periods. And in the absence of such a provision, I tend to think CRV periods must be served continuously. See State v. Miller, 205 N.C. App. 291 (2009) (discussed here, holding that a judge lacks authority to allow a defendant to serve an active sentence on weekends in a Structured Sentencing case). Finally, a judge has more flexibility in terms of place of confinement with a split sentence. Under G.S. 15A-1351(a) and -1344(e), a split sentence for a may be served in prison, the local jail, or a designated treatment facility. The place of confinement for CRV, meanwhile, is dictated by where the defendant would have served an active sentence. G.S. 15A-1344(d2). Thus, felony CRV periods must be served in prison (DAC will send them to Dan River, Greene, Odom, Tyrrell, Western Youth Institution, or Fountain Correctional, depending on the defendant’s sex, age, and geographical location), and some misdemeanor CRVs should be ordered into the Statewide Misdemeanor Confinement Program. (I heard from some sheriffs this week that a fair number of felony CRVs are being served in their jails at county expense. As I read the law that should not happen.)
Another form of non-CRV confinement that may still be ordered after the JRA is contempt under G.S. 15A-1344(e1). That law says the court may hold an offender in criminal contempt for a willful probation violation, allowing up to 30 days of imprisonment for the violation. It should be noted, however, that any imprisonment ordered as punishment for the contempt counts against the defendant’s suspended sentence. State v. Belcher, 173 N.C. App. 620 (2005). I may write more about that law soon. It has an interesting legislative history.
So, CRV has not cornered the market on post-JRA probationary confinement. Other options are alive and well, but the calculus for determining which may be best in a particular case has changed. After more time has passed I’ll be interested to review some statistics to get a sense of how things are playing out. In the meantime, I’d love to hear from you about what is going on in practice.
When analysts from the Council of State Governments studied North Carolina’s sentencing laws and correctional system, one of their key findings was that revoked probationers account for a lot of new entries to prison each year—more than half. The Justice Reinvestment Act (S.L. 2011-192) responds to that finding in several ways, one of which is limiting the amount of a time a probationer can be imprisoned for certain violations of probation.
Under the new law, for probation violations occurring on or after December 1, 2011, the court may not revoke probation for violations of conditions other than the “commit no criminal offense” condition set out in G.S. 15A-1343(b)(1) or the new statutory “absconding” condition set out in G.S. 15A-1343(b)(3a). (The absconding condition is a new regular condition for offenders on probation for offenses that occur on or after December 1, 2011. S.L. 2011-192, sec. 4.(d), as amended by S.L. 2011-412, sec. 2.5.) For other violations, the court may impose a period of “confinement in response to violation” under new G.S. 15A-1344(d2). I’ll refer to that confinement period in this post and in other publications as a “CRV” period (Confinement in Response to Violation). Others have termed it a “dunk.” Whatever you call it, it’s useful to have a terminology that makes clear than confinement under G.S. 15A-1344(d2) is different from other short-term confinement periods, like a “split” (special probation) or a “quick dip” (a short-term confinement option under new G.S. 15A-1343(a1)(3) that I’ll write about in my next post).
For felons, the CRV period is a flat 90 days. For misdemeanants, the CRV period is “up to 90 days.” The law goes on to say, however, that if the time remaining on the defendant’s sentence is 90 days or less, the CRV period “is for the remaining period of the sentence.” Because the vast majority of misdemeanor sentences are 90 days or less, a CRV period for a misdemeanant will almost always use up the defendant’s entire suspended sentence—making it look like a revocation. (There is some argument that the 90-days-or-less remaining caveat only applies to felonies. It uses the term “maximum imposed sentence,” which does not fit perfectly with the misdemeanor sentencing law.)
A defendant may only receive two CRV periods in a particular probation case. After that, the court can respond to future violations by revoking probation, even if the alleged violation is something other than a new crime or absconding. Conversely, the court is never allowed to impose CRV in response to a new criminal offense or absconding; for those violations, the court can either revoke probation or modify it in all the ways it can under existing law.
To sum up the rules, for probation violations that occur on or after December 1, 2011, the court can revoke probation for violations of the “commit no criminal offense” condition, violations of the new statutory “absconding” condition, and for defendants who have previously received two CRV periods. The court is never required to order CRV; it can always respond with other modifications like a split sentence, electronic house arrest, or a curfew, to name a few. That said, you can probably see that the State and the court may, in some cases, be drawn to CRV in response to early violations to set the table for a future revocation.
CRV confinement is similar to special probation, but it isn’t a split. For instance, it is not subject to the one-fourth rule of G.S. 15A-1351(a) or G.S. 15A-1344(e). Also, there is no clear statutory provision for appealing a CRV period. Under G.S. 15A-1347 and existing case law, there is no right to appeal probation matters other than activation of a sentence or imposition of special probation. State v. Edgerson, 164 N.C. App. 712 (2004) (“Defendant’s sentence was neither activated nor was it modified to ‘special probation.’ Defendant therefore has no right to appeal.” (citations omitted)). Perhaps there is an argument that CRV is an “activation” (or at least a partial activation) of sorts, and so it is appealable under G.S. 15A-1347.
There are some additional rules for CRV confinement. First, if a defendant is detained in advance of a violation hearing at which CRV is ordered, the judge must first credit that confinement time to the CRV period, with any excess time to be applied to a later-activated sentence. In other words, the court may not bank the pre-hearing credit the way it can when it orders a split sentence under G.S. 15A-1351. Second, when a defendant is on probation for multiple offenses, the law requires CRV periods to run concurrently on “all cases related to the violation.” Confinement is to be “immediate unless otherwise specified by the court.” The idea behind those provisions is that CRV periods for multiple cases should not be “stacked” to create a confinement period of longer than 90 days. Finally, the law specifies that CRV periods are served “in the correctional facility where the defendant would have served an active sentence.” I described the new rules for determining a defendant’s proper place of confinement in this prior post.
In every session I’ve taught about these new limitations on a court’s authority to revoke probation, I’ve been asked the same question: What about defendants who want to “invoke” their sentence (or “elect to serve” or whatever you might call it)? Can they still do that after Justice Reinvestment? As discussed here, the statutory provision allowing a probationer to “elect to serve” was repealed in the mid-1990s. A probationer can, however, admit to a violation, and then the court can revoke probation based on that. Under the new law, it seems that admissions will need to be to a new criminal offense or absconding in order to empower the court to revoke.