Come December 1, dips will be the new dunks for Structured Sentencing misdemeanants. Continue reading
Tag Archives: CRV
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.
Have you ever eaten cake decorated with the name of a prison facility? I hadn’t until a few weeks ago, when I attended the ribbon cutting ceremony for the Division of Adult Correction’s new CRV Center in Robeson County. I’m glad I made the trip down to Lumberton—not just because of the cake (which turned out to be pretty good), but also because of what I learned about DAC’s vision for its new form of confinement for probation violators. Today’s post is intended to pass some of that information along to the judges and prosecutors who will send probationers to the CRV centers, and to the defense lawyers who will advise their clients about what to expect there. Continue reading →
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.
The Justice Reinvestment Act became law in 2011. S.L. 2011-192. Even before its initial effective date it was amended in 2011 by a technical corrections act. S.L. 2011-412. It was amended again by a clarifications act in 2012, making the changes described here. S.L. 2012-188. Two weeks ago it was amended yet again, effective (in part) immediately when the governor signed it on June 12. S.L. 2013-101. Today’s post reviews the latest changes.
The most significant change in the law is an amendment to G.S. 15A-1344(d2) to make clear that periods of confinement in response to violation (CRV, or, as some people call them, dunks) must be served on “consecutive” days. The rule, which applies to both felonies and misdemeanors, was effective immediately on June 12. CRV is the confinement the judge may order for technical violations of probation other than a new criminal offense or absconding. With the change in place, “weekend” or other non-continuous dunks are not allowed.
In my opinion that was probably already the case. In light of State v. Miller, 205 N.C. App. 291 (2009), I had thought that a judge could not order non-continuous confinement without statutory authority to do so. See Markham, The North Carolina Justice Reinvestment Act 68 (2012). Regardless, the answer is now clear as a matter of statute: no weekend dunks. If you would like to arrange for probationary confinement to be served on non-continuous days, it can still be done as a split sentence. G.S. 15A-1351(a) (special probation ordered at sentencing); G.S. 15A-1344(e) (special probation ordered as a modification of probation). Notwithstanding persistent rumors to the contrary, the JRA did not repeal the court’s authority to order split sentences.
All of the other changes to the law are truly technical in nature.
- The “absconding” probation condition that was created in 2011, G.S. 15A-1343(b)(3a), was amended so that it no longer applies to unsupervised probationers. The change, effective June 12, has no real practical effect because unsupervised probationers had no supervision from which to abscond. Nevertheless, the absconding condition appears in the portion of the judgment forms applicable to unsupervised probationers, and those forms will not be amended until the fall. In the meantime, AOC legal counsel has advised that “judges who wish to enter probationary judgments in strict compliance with the letter of the statute . . . simply will need to strike through that condition for unsupervised judgments.” I agree.
- The act removed a provision in G.S. 15-205 requiring probation officers to take supervised probationers on a prison tour during their first 30 days of supervision. A related provision was removed from G.S. 15A-1343 in 2011.
- The act repealed G.S. 143B-1159, which had required the North Carolina Sentencing and Policy Advisory Commission to do an independent biennial recidivism report on offenders accessing programs funded through the Treatment for Effective Community Supervision (TECS) program. A provision in the still-pending budget bill (section 16C.12) would have the Division of Adult Correction—which administers TECS—study itself in that regard.
- The act repealed G.S. 15A-1368.4(e)(14), the statutory condition of post-release supervision referencing “intensive” supervision. (The JRA repealed intensive probation but left intensive post-release supervision in place.) That repeal was effective immediately on June 12.
- Finally, the act corrects three mathematical errors in G.S. 15A-1340.17(e), better known as the back of the felony sentencing grid. The changes are minor, but will nonetheless require the issuance of a new felony sentencing grid this fall. The revised grid is effective for offenses committed on or after October 1, 2013. A separate bill, House Bill 92, would amend the Class A felony line of the sentencing grid to reflect the possibility of a life with parole sentence for a youthful defendant convicted of first-degree murder under G.S. 15A-1340.19B, enacted last year as discussed here.
I generally refrain from discussing pending legislation, but this post seems a suitable place to note another bill related to Justice Reinvestment that is poised to become law. House Bill 641, which has been ratified and presented to the governor for signature, would roll back what turned out to be one of the more complicated aspects of Justice Reinvestment: mandatory G.S. 90-96. The proposed law would return G.S. 90-96(a) to discretionary status in cases where the court, with the agreement of the district attorney, determines that the defendant is “inappropriate for a conditional discharge for factors related to the offense.” The change would be effective for offenses committed on or after December 1, 2013.
Under the Justice Reinvestment Act, a probation officer may, through delegated authority, impose a short period of jail confinement in response to a violation of a court-imposed probation condition. The officer may impose up to six days of confinement per month during any three separate months of a period of probation. The time must be served in the local jail in 2-day or 3-day increments. G.S. 15A-1343.2(e) and (f).
As of the end of September, three quick dips had been imposed statewide. That’s surprisingly low, but I think several factors conspire to keep the numbers down. First, probation officers only have authority to impose quick dips for offenders on probation for offenses committed on or after December 1, 2011. S.L. 2011-192, sec. 1(l). Those offenders are just now starting to come onto probation in large numbers. Second, even for statutorily eligible offenders, the Division of Adult Correction delayed use of quick dips until July 2, 2012, to allow for policy development and training. Third, quick dip authority applies only in Structured Sentencing cases; it is not an option for DWI probationers. G.S. 15A-1343.2(a) (“This section applies only to persons sentenced under Article 81B [Structured Sentencing] of this Chapter.”) And fourth, Community Corrections has chosen as a matter of policy to use quick dip authority only in cases involving relatively serious violations by Supervision Level 1 and 2 offenders—the highest risk, highest need probationers, as described in this prior post.
Another reason quick dip usage may be limited is that judges are increasingly withholding delegated authority in judgments suspending sentence. Some judges are checking the box finding that delegated authority is not appropriate in the case out of concern about the constitutionality of a probation officer imposing jail time without review by a judicial official or hearing officer.
That may be a legitimate concern. There obviously are not any North Carolina cases yet, but case law from around the country indicates that a judge generally may not delegate to a probation officer a core judicial function, such as deciding whether a probationer will be required to abide by a condition at all. See United States v. Esparza, 552 F.3d 1088 (9th Cir. 2009) (vacating a condition that allowed a probation officer to choose whether a defendant would participate in inpatient or outpatient treatment); United States v. Heath, 419 F.3d 1312 (11th Cir. 2005) (striking a condition stating that a defendant was required to participate in mental health programs “if and as directed by the probation officer”). Appellate courts in other jurisdictions have stricken conditions purporting to allow a probation officer to decide whether or not a probationer will serve additional jail time. See State v. Fearing, 619 N.W.2d 115 (Wis. 2000) (holding that a trial court exceeded its authority in authorizing a probation officer to determine whether a probationer would be required to serve three additional months in jail); State v. Hatfield, 846 P.2d 1025 (Mont. 1993) (holding that a trial court erred in sentencing a defendant to 180 days of jail time to be served—or not served—in the discretion of the probation officer); State v. Lee, 467 N.W.2d 661 (Neb. 1991) (invalidating a condition purporting to allow a probation officer to “waive” some of the defendant’s jail days, noting that “[j]ail time is to be imposed by judges” and that a “court may not delegate the authority to impose a jail sentence, or to eliminate a jail sentence, to a nonjudge”); State v. Paxton, 742 N.E.2d 1171 (Ohio Ct. App. 2000) (reversing a 60-day period of imprisonment imposed by a probation officer on due process and separation of powers grounds); People v. Thomas, 217 Ill. App. 3d 416 (1991) (vacating a condition allowing a probation officer to remit a 30-day jail sentence if a probationer completed a treatment program because that was “not a function that could properly be delegated when the question of further incarceration is at stake”).
The North Carolina Attorney General issued similar guidance in response to a question about whether a judge could impose a 30-day split sentence to be used in the discretion of the probation officer “if deemed necessary for minor infractions or technical violations.” In a formal opinion letter, the attorney general advised against the practice, concluding that it would violate constitutional due process and the statutory probation violation framework set out in G.S. 15A-1345. 60 N.C. Op. Atty. Gen. 110 (1992).
It is possible, of course, that the courts cited above and the attorney general might evaluate the delegation differently in light of the new enabling statute. But even with the statute in place, several issues may arise.
First, unlike other delegated authority conditions, an offender cannot seek court review of an officer-imposed quick dip. Instead, the statute explicitly states that the probationer has no such right of review if he or she has signed a written waiver of rights. Quick dips were probably excluded from the judicial review process on the rationale that the probation officer could not have imposed the confinement in the first place without the offender waiving his or her right to a hearing before a judge. But the lack of a judicial review process may bear on the separation of powers and due process analyses. See United States v. Kerr, 472 F.3d 517, 523 (8th Cir. 2006) (“A sentencing judge may delegate limited authority to non-judicial officials as long as the judge retains and exercises ultimate responsibility.”) By way of comparison, a defendant’s failure to object when a judge imposes a probation condition does not constitute a waiver of the right to object to it at a later time. G.S. 15A-1342(g).
Second, the JRA appears to place North Carolina in a minority of states that allow a probation officer to respond administratively to a violation with full-blown jail confinement. Delaware allows its corrections department to respond administratively to certain violations with sanctions less restrictive than “Accountability Level V” (incarceration), including up to 5 consecutive days of supervision at “Accountability Level IV” (house arrest, a half-way house, or residential treatment). Del. Code. Ann. title 11 § 4334; § 4204. Georgia’s system includes similar limitations, allowing probation officers to impose conditions like intensive supervision and electronic monitoring administratively, but reserving to administrative hearing officers and judges the authority to impose more restrictive conditions like confinement in a probation detention center or placement in a residential facility. Ga. Code. Ann. § 42-8-155; § 42-8-153(c). Oregon, on the other hand, allows an officer to impose jail confinement under its law, and there do not appear to be any reported cases challenging the law’s constitutionality. Or. Rev. Stat. Ann. § 137.595; Or. Admin. R. 291-058-0045 (2011).
In general, before a probationer may be confined in response to a violation of probation he or she has certain rights as a matter of constitutional due process. Gagnon v. Scarpelli, 411 U.S. 778 (1973) (holding that a probationer is entitled to, among other things, notice of the alleged violations, an opportunity to be heard and to present evidence, a neutral hearing body, and, in some cases, counsel); Morrissey v. Brewer, 408 U.S. 471 (1972) (setting out what process is due in a parole revocation hearing). Instead of involving a judge or an administrative hearing officer in the procedure (as is generally the case in places like Hawaii and Georgia), the JRA’s approach to quick dips relies on the probationer’s written waiver of rights. The statutorily required elements of the waiver, set out in G.S. 15A-1343.2(e) and (f), appear to track the minimum requirements of due of process for probation violation hearings set out by the Supreme Court. But it is questionable whether an interested party (a probation officer) can properly ensure that a probationer’s waiver is knowing, voluntary, and intelligent—especially when a defendant who decides not to waive could nonetheless be arrested and jailed in advance of a probation violation hearing before the court.
Moreover, to the extent that the waiver incorporates a waiver of counsel, it is unclear whether it comports with North Carolina’s statutory requirement for a judge to conduct a “thorough inquiry” of defendants who elect to proceed without a lawyer. G.S. 15A-1242; State v. Warren, 82 N.C. App. 84 (1986) (holding that G.S. 15A-1242 applies to waiver of counsel in probation matters). That law is already a common source of errors for waiver inquiries conducted by judges in criminal trials, State v. Seymore, __ N.C. App. __, 714 S.E.2d 499 (Aug. 16, 2011), and probation violation hearings, State v. Sorrow, __ N.C. App. __, 713 S.E.2d 180 (July 19, 2011). The current version of the form that probation officers use to order a quick dip, a DCC-10B, may also be problematic in that it only requires the probationer to acknowledge explicitly the waiver of his or her right to a hearing, not counsel, before the dip is imposed.
I’m not a criminologist, but I know there’s research showing that “swift and certain” probation sanctions like quick dips are effective (a brief example is available here). North Carolina judges who have run drug treatment courts know that from experience, as they have been using a version of quick dips through their contempt power for years. (Can I add that it also makes some intuitive sense to me as the father of four little boys?) It seems that most of the concerns about the law are more to do with the procedure than the substance. Judges, are you un-delegating delegated authority? If so, why? Defense lawyers and prosecutors, are you asking judges to do that? Probation officers, what has your experience been? As always, I welcome and value your thoughts.
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.
Like most complicated legislation, the Justice Reinvestment Act (JRA) was less than perfectly clear as originally written. Earlier this week (July 16, 2012) the governor signed House Bill 1021, Justice Reinvestment Clarifications. S.L. 2012-188. The act makes several important changes to the law, some of which are effective immediately. This post summarizes them.
Changes to “quick dip” procedures for probation officers. Under the JRA, probation officers can, in certain cases, impose a short term of jail confinement in response to a probation violation. That confinement has been referred to colloquially as a “quick dip” in the jail. The officer may impose up to six days of confinement per month, served in 2-day or 3-day increments, during any three separate months of a period of probation. The power to use quick dips was effective for any person on probation for a Structured Sentencing (i.e., non-DWI) offense committed on or after December 1, 2011, but Community Corrections chose as a matter of policy not to use them until July 2, 2012.
Before imposing a quick dip, a probation officer must present the probationer with a violation report noting the alleged violations and designating the period of confinement the officer is planning to impose. The officer must advise the probationer of his or her rights to a lawyer and a hearing on the violation. If the probationer signs a written waiver of those rights, the officer can impose the quick dip.
The Clarifications Act made a small change to that waiver procedure. Under the JRA as originally written, the waiver had to be witnessed by the probation officer and “a supervisor.” In some districts, the “supervisor”—the chief probation-parole officer or perhaps a judicial district manager—does not work in the same county as some of the officers he or she supervises. That made it inconvenient for the supervisor to witness a probationer’s waiver of rights. In response, the Clarifications Act deletes the requirement for a supervisor to witness and allows another officer (designated by the chief of the Section of Community Corrections in the written policy of the Division of Adult Correction) to do it instead. The change probably does not affect the analysis of whether the waiver procedure is constitutionally sufficient. Notice, a meaningful hearing, and an impartial decision maker—not witnesses—are the core elements of procedural due process.
The change to the witness requirement was made in both G.S. 15A-1343.2(e) (for community cases) and (f) (for intermediate cases). It is effective immediately on July 16, 2012.
Changes to confinement in response to violation for misdemeanors. As originally written, the JRA said that the period of confinement in response to violation (CRV, sometimes referred to as a “dunk”) for a misdemeanant was “up to 90 days.” G.S. 15A-1344(d2). However, the law went on to say that if 90 days or less remained on the defendant’s suspended sentence the CRV period had to be for the length of that remaining time. Because most misdemeanor sentences were 90 days or less to begin with, the rule virtually always trumped the court’s authority to order a shorter CRV period. It led to a peculiar result: the judge could impose a short CRV period (5 days, for example) for a defendant with a suspended sentence of 91 days or more, whereas any CRV period ordered for a defendant with a suspended sentence of 90 days or less was required to be a “terminal dunk,” using up the entirety of the remaining sentence. That formulation also appeared to frustrate one of the purposes of the JRA—reducing the number of offenders incarcerated for technical violations of probation—in that most misdemeanants’ first CRV period was the functional equivalent of a revocation.
The Clarifications Act excludes misdemeanants from the 90-days-or-less-remaining rule. In other words, the judge now can, in his or her discretion, impose a shorter CRV period in any misdemeanor case. The new version of the rule simply says the court may impose a CRV period of “up to 90 days” in a misdemeanor case. The law does not explicitly address how long the CRV period may be when the offender has less than 90 days remaining on his or her suspended sentence, but given that the confinement must be credited under G.S. 15-196.1, it may be no longer than the defendant’s suspended sentence.
The change was effective immediately when the governor signed it at 3:50 p.m. on July 16, 2012. It thus appears to apply to any CRV-eligible violation heard on or after that point. (If a judge was unaware of the change and, thinking it mandatory, ordered a terminal dunk for a misdemeanant after the law took effect, there may be grounds for bringing the matter back before the court for reconsideration in light of the revised law.) It will take a little time for the AOC forms to catch up with the change in the law. Until a new form AOC-CR-609, Order on Violation of Probation or on Motion to Modify, is published, court personnel should, in misdemeanor cases, disregard the usage note saying that a terminal CRV period must be ordered if 90 days or less remain on the defendant’s sentence.
Community service fee. The “perform community service” condition added by the JRA as a “community and intermediate” condition of probation under G.S. 15A-1343(a1)(2) did not expressly require payment of the $250 community service fee described in G.S. 143B-708. As a result, a defendant ordered to complete community service as a special condition of probation under G.S. 15A-1343(b1)(6) was required to pay the fee, while a defendant ordered to perform community service as a community and intermediate condition under G.S. 15A-1343(a1)(2) may not have been required to pay it. The Clarifications Act amends the latter condition to say that the fee is required under it, too. The change is effective July 16, 2012, and applies to any community service ordered as a community and intermediate condition on or after that date. As such, court personnel should probably disregard the usage note on the suspended sentence judgment forms saying that the community service fee should not be assessed for the “community and intermediate” version of the community service condition unless specifically ordered by the court.
Post-release supervision changes. The Clarifications Act made several changes related to post-release supervision.
First, the act amended G.S. 15A-1368.3(c) to say that while a person is reimprisoned for a violation of post-release supervision, his or her period of supervised release is tolled. For example, a supervisee who commits a technical violation in the eighth month of a 9-month post-release supervision period will have 1 month of post-release supervision left to serve in the community upon her release from a 3-month term of reimprisonment. The supervision period will not expire during her imprisonment. (Note that there is no parallel provision tolling a probationer’s period of probation during a CRV period.) The amended law also adds that a supervisee is not to be rereleased onto post-release supervision if the supervisee has served all the time remaining on his or her maximum imposed term. That change applies to all supervisees, including sex offenders. Under prior law, sex offenders were sometimes kept under supervision even after the conclusion of their full term of imprisonment, with the conditions of supervision enforced through the Post-Release Supervision and Parole Commission’s contempt power (discussed here). That practice does not appear to be permissible under the revised law. The change applies to supervisees who violate on or after July 16, 2012.
Second, the act amends G.S. 143B-720 to allow the Post-Release Supervision and Parole Commission to hold all post-release supervision and parole hearings and contempt hearings for sex offenders by videoconference. The change is designed to help the Commission handle the large expected increase in the number of post-release supervisees now that PRS applies to all felons. Logistically, the ability to conduct hearings via videoconference will certainly be helpful—there is only one Commission in Raleigh, and it (not the courts) is the controlling authority for PRS cases all across the state. There may be questions, though, about whether a hearing conducted via videoconference satisfies constitutional due process requirements. There isn’t much case law on point from other jurisdictions. See United States v. Thompson, 599 F.3d 595 (7th Cir. 2010) (holding that Rule 32.1 of the Federal Rules of Criminal Procedure prohibits conducting supervised release hearings via videoconference). Cf. Wilkins v. Timmerman-Cooper, 512 F.3d 768 (6th Cir. 2008) (upholding, on federal habeas review, a state parole violation hearing in which a parole officer and a witness testified against the parolee via videoconference). The technology may not be suitable for contempt hearings, which require proof beyond a reasonable doubt under the procedures set out in G.S. Ch. 5A. See S.E.C. v. Kimnes, 759 F. Supp. 430 (N.D. Ill. 1991) (discussing a defendant’s constitutional rights to be present and to confront witnesses at a criminal contempt hearing). The change is effective December 1, 2012.
Finally, the act amends G.S. 15A-1368.1 to make clear that the post-release supervision law applies to drug trafficking sentences. (Previously there were some indications that it did apply and some that it did not.) The act also adds time onto the maximum sentences for drug trafficking set out in G.S. 90-95(h) to cover for traffickers’ early release onto PRS. The act adds three months to the maximum sentences for Class C, D, and E trafficking (so that maximum sentences in those cases are 120 percent of the minimum plus 12 months) and nine months to the maximum sentences for Class F, G, and H trafficking (so that maximums in those cases are 120 percent of the minimum plus 9 months). That additional time will avoid the situation (discussed here) where the post-release supervision law commands a person’s release before he or she has served the minimum sentence. The changes are effective for offenses committed on or after December 1, 2012. That effective date leaves questions about the proper way to handle drug trafficking sentences for offenses committed between December 1, 2011 and November 30, 2012. I’ll write separately with my thoughts about that.