The felony and misdemeanor sentencing grids tell us who can get probation. Community Corrections has its own grid that determines how that probation will be carried out. Continue reading
Tag Archives: delegated authority
Among the two dozen or so states that have participated in Justice Reinvestment, North Carolina has become something of a darling. The goal of the initiative (summarized in this infographic) is to reduce spending on corrections, and North Carolina has done that. Since the day the law came into effect, we have 2,000 fewer prison inmates, and—in something of a surprise—10,000 fewer probationers. (As I was looking into this, I noticed that there are 20,000 fewer probationers in North Carolina today than there were in early 2008!) The general view is that the initiative is working well here, and other states are looking to copy our model. Commissioner of Adult Correction David Guice has appeared before congressional staff to talk about North Carolina’s experience, and just last week spoke to Alabama’s Association of County Commissioners about our success, highlighting our use of short confinement periods (quick dips) to respond to technical violations of probation.
With all this attention, it seemed a good time to share some data that show how Justice Reinvestment Act (JRA) “tools” are being used in practice in North Carolina. (Previous statistical reviews are available here and here.) All figures come from the excellent research staff of the Division of Adult Correction and Juvenile Justice.
Delegated authority. Probation officers can, after the JRA, impose more conditions on probationers through delegated authority than they could before the law came into effect. Without action by the court, officers can impose conditions like community service, substance abuse treatment, electronic house arrest, a curfew, and educational programs. The officer may impose any of those conditions in response to a violation, or (unlike pre-2011 law) without a prior violation if the probationer has been “determined to be high risk based on the results of the risk assessment.” G.S. 15A-1343.2(e) and (f). Probation officers refer to the latter option as “high risk delegated authority.” Since the start of 2013, officers used delegated authority over 3,000 times, with over two-thirds of that being the post-violation variety. Officers used high risk delegated authority 969 times.
Quick dips. The JRA added a new form of delegated authority through which probation officers can jail certain probationers for two or three days in response to a violation of probation. Officers may only do that after following a special procedure that includes the offender’s waiver of the rights to a hearing and counsel. G.S. 15A-1343.2(e) and (f). Quick dips were scarcely used at all in 2012, but things have picked up considerably since then. In fiscal year 2013/14, officers imposed 1,448 quick dips. Almost two-thirds of them (903) were of the 3-day variety.
My understanding is that very few judges take the affirmative step of “un-delegating” the authority for a probation officer to impose a quick dip, although there are a handful that do so in every case. I have not heard of any litigation regarding the constitutionality of officer-imposed dips, which I wrote a little bit about here.
A preliminary analysis of the effectiveness of quick dips shows promise: a group of offenders who received one quick dip in response to noncompliance were less likely to get revoked and less likely to abscond than a matched group of undipped offenders. A summary of the analysis, shared with DAC’s permission, is available here. It’s a small sample, but the results are interesting and encouraging.
ASR. Another new arrow in the JRA quiver is Advanced Supervised Release (ASR). The law, which allows a person serving an active sentence to earn an early release by completing certain “risk reduction incentives” in prison, is summarized here. Statewide, over 300 ASR sentences have been entered since the law came into effect. Unlike quick dips, however, there are indications that ASR usage has actually slowed in recent months. An ASR sentence cannot be imposed over the objection of the prosecutor, so it’s possible that the law is not being used because most prosecutors object. Or it may just be that nobody brings it up. It’s too soon to have any meaningful data about whether ASR risk reduction incentives actually reduce risk.
I would love to hear your thoughts about how these new legal tools are being used in practice. Officials in Alabama, Michigan, and other states thinking of taking the JRA plunge might also learn from our collective experience.
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.
As I mentioned in a prior post, the Justice Reinvestment Act (S.L. 2011-192) creates a new set of “community and intermediate probation conditions” that can be ordered in any Structured Sentencing probation case. One of the new community and intermediate conditions, available for defendants on probation for offenses committed on or after December 1, 2011, is a new form of short term jail confinement that some have referred to as “quick dips.” Under new G.S. 15A-1343(a1)(3), the court can order up to six days of jail confinement during any three separate months of a period of probation, for a total confinement time of up to 18 days. The time must be served in 2-day or 3-day increments, meaning the maximum number of individual “dips” a person could face in a single case is nine (three 2-day dips in three separate months). If the defendant is on probation for multiple judgments, confinement periods must run concurrently and may still total no more than six days per month. Quick dip time is served in a “local confinement facility”—a jail—never prison.
Like periods of confinement in response to violation (“CRV” periods, discussed here), quick dips look a little like special probation. But they are not a split sentence. They are not subject to the length limitations of G.S. 15A-1351(a) and G.S. 15A-1344(e), which cap a split sentence at one-fourth of the maximum sentence imposed. Unlike CRV, though, quick dip confinement can be ordered at sentencing. In fact, quick dips are the only type of confinement that can be ordered at sentencing in a community case (special probation is still off limits for non-intermediate cases). When quick dips are ordered by the court as a modification of probation there does not appear to be any statutory right to appeal the change. Because quick dip time is a condition of probation, it seems to fit within the language of G.S. 7A-313 (“persons ordered to pay jail fees pursuant to a probationary sentence,”) meaning the court could impose a $40 fee for each day of confinement ordered.
Though quick dip confinement is an option available to the court at sentencing or as a modification, the provision was added to the law largely to pave the way for use by probation officers through delegated authority. The idea (I think) was that judges could not delegate authority that they did not have themselves. Effective for offenses committed on or after December 1, 2011, quick dip confinement is added to the menu of conditions that a probation officer can impose through delegated authority under G.S. 15A-1343.2(e) (community cases) and -1343.2(f) (intermediate cases). Delegated authority does not apply in impaired driving cases. And of course it does not apply in cases where the judge has “un-delegated” the authority in the judgment.
The details of the dip are the same in the delegated authority context as they are in the community and intermediate condition described above: up to 18 total days of confinement, served in 2- or 3-day chunks, in three separate months. Procedurally, though, a probation officer has to do a lot more than a judge before imposing a quick dip. First, unlike other delegated authority conditions under the new law (discussed here), quick dips may not be imposed by a probation officer based on the offender’s risk level alone. Rather, a probation officer can only impose a quick dip when the Division of Community Corrections has determined that the offender has failed to comply with one or more of the conditions imposed by the court. (Note that noncompliance with other conditions imposed by a probation officer through delegated authority won’t do the trick.) Second, the officer must get a supervisor’s approval prior to using delegated authority. Third, the officer must prepare a violation report noting the alleged violations and designating the period of confinement the officer is planning to impose.
The officer must then advise the probationer of several rights: (1) the right to a “hearing before the court on the alleged violation, with the right to present relevant oral and written evidence”; (2) the right “to have counsel at the hearing, and that one will be appointed if the probationer is indigent”; (3) the right “to request witnesses who have relevant information concerning the alleged violations”; and (4) the right “to examine any witnesses or evidence.” G.S. 15A-1343.2. Only if the probationer signs a waiver of all of those rights, with both the probation officer and a supervisor also signing as witnesses, can the officer impose the quick dip. If the probationer does not waive the officer would presumably choose whether to bring the violation to the court’s attention through the regular violation process or to respond to the violation through some other form of delegated authority. I imagine Community Corrections policy will give officers more specific direction on how to proceed in the event of a non-waiver. Those offenders who waive will be taken to the jail. Magistrates and sheriffs’ personnel should be aware that probation officers have this new authority to order confinement without any action or approval by a judicial official. In fact, unlike other delegated authority conditions for which the offender can file a motion with the court to review action taken by the probation officer, the new law expressly states that the offender “shall have no right of review” of quick dip confinement after signing the waiver of rights described above.
I have received lots of questions about the quick dip provision. A recurring one is whether judges and probation officers draw from a common pool of 18 days when imposing quick dip time. For example, if the judge imposes three days of quick dip confinement at sentencing, is the probation officer limited to 15 days of confinement through delegated authority? To the extent the probation officer’s authority flows from the judge, it makes sense that the time is shared—and my understanding is that Community Corrections will operate under that interpretation. It remains to be seen whether judges will hold the reciprocal belief that confinement time used by a probation officer is thereafter unavailable to the judge. Of course, a judge would have other options for ordering confinement in response to a violation, like special probation or CRV.
Finally, there is the question of the constitutionality of delegating authority to impose jail confinement to a non-judicial officer. I discussed some of those concerns in this prior post. A leading treatise on the law of probation and parole describes as “universal” the view that “a sentencing court may not under any circumstances delegate to the department of corrections or to a probation officer authority to order a period of additional incarceration for a probationer who is under their supervision.” Cohen, Law of Probation and Parole, § 7:23. However, the case cited in support of that proposition, State v. Hatfield, 256 Mont. 340 (1993), did not strike the delegation of confinement authority on constitutional grounds. Rather, the Montana Supreme Court noted that “no statute specifically authorize[d]” the delegation.” Perhaps the court’s analysis would have been different had there been an enabling statute like North Carolina’s new law. In fact, after the Hatfield case was decided Montana enacted a law, Mont. Code Ann. § 46-23-1015, allowing up to 30 days of confinement in a county detention center in response to a violation after an “informal probation violation intervention hearing”—but even that confinement can only be ordered by a “designated hearings officer” after a hearing, not by the probation officer himself or herself.
My own (admittedly non-comprehensive) review of other jurisdictions’ laws in this area indicates that some states that allow administrative (i.e. non-judicial) sanctions in response to probation violations tend to stop short of allowing full-blown jail confinement. Delaware, for example, allows its corrections department to respond administratively to “technical and minor” violations with sanctions less restrictive than “Accountability Level V,” including up to 5 consecutive days of supervision at “Accountability Level IV.” Del. Code Ann. title 11 § 4334. Accountability Level V is incarceration; Accountability Level IV is house arrest, partial confinement in a half-way house, or placement in a residential treatment facility. Id. § 4204. Georgia’s system includes similar limitations. 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, Or. Rev. Stat. Ann. § 137.595, and there do not appear to be any reported cases challenging its constitutionality.