Many of you have received one of those letters: a notice from the N.C. Department of Public Safety, Division of Adult Correction (DAC), Section of Combined Records, seeking “clarification” of a judgment. Combined Records audits judgments as they come in, identifying issues and sentencing errors and bringing them to the attention of the court system. Today’s post considers the legal basis for this review, and some of the issues it raises. Continue reading
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Under existing law, the basic rules for where a sentence should be served are as follows:
Misdemeanors, 90 days or less. If a sentence imposed for a misdemeanor is 90 days or less, it generally must be served in the jail. G.S. 15A-1352(a). There are exceptions for when the jail is overcrowded or the inmate presents security or medical risks. G.S. 148-32.1(a); G.S. 162-38 and -39.
Misdemeanors, 91 days or more. If a sentence imposed for a misdemeanor is 91 days or more, the judge can, in his or her discretion, commit the defendant to either the jail or to the Department of Correction (DOC). G.S. 15A-1352(a).
Caveat for Chapter 20 misdemeanors. Misdemeanor violations of Chapter 20 other than G.S. 20-28(a) (driving while license revoked), 20-141.3(b) and (c) (speed competitions), 20-141.4 (death or serious injury by vehicle), or a second or subsequent conviction of G.S. 20-138.1 (impaired driving), must be sentenced to the jail unless the person has previously been jailed for a Chapter 20 violation. G.S. 20-176(c1).
Felonies. Felons must be committed to DOC except the judge may, upon request of the sheriff or board of county commissioners, sentence the felon to the jail. G.S. 15A-1352(b).
The Justice Reinvestment Act (S.L. 2011-192) makes some changes to those rules, effective for sentences imposed on or after January 1, 2012. Here are the new rules for determining where sentences imposed on or after that date should be served.
Misdemeanors, 90 days or less. The law is essentially unchanged: misdemeanor sentences of 90 days or less must be served in the jail. The JRA did make some changes to G.S. 148-32.1, the law that sets out the exception to the 90-days-or-less rule for situations when the jail is filled to capacity, to make it a little harder for misdemeanants with short sentences to be transferred to DOC. The new version of that law says that a judge may, when the custodian of the jail certifies in writing to the clerk of superior court that the jail is full or does not meet administrative standards, order a defendant with a sentence of 30 to 90 days to serve the sentence in another jail. If no other jail is available, and then only if the reason for the requested transfer is that the jail in the county of conviction does not meet minimum administrative standards or cannot reasonably accommodate any more prisoners due to segregation requirements, an inmate with a sentence of 90 days or less can be assigned or transferred to DOC. As under existing law, defendants with a sentence of less than 30 days may not go to DOC.
Misdemeanors, 91 to 180 days. This is the group for which the JRA made the biggest change. Under new G.S. 15A-1352(e), a defendant with a sentence for a misdemeanor other than impaired driving that requires confinement for a period of 91 to 180 days must be committed to confinement pursuant to the new Statewide Misdemeanant Confinement Program (MCP). The MCP, described in new G.S. 148-32.1(b2), will provide housing for those misdemeanants at a jail that has voluntarily agreed to provide space for that purpose. Counties (or, presumably, groups of counties, in the case of the small number of regional jails around the state) willing to provide that space will enter into written agreements with the Department of Correction to do so. Those counties will be reimbursed by the state for the inmates they accept pursuant to the terms of those agreements; the intent of the General Assembly, set out in new G.S. 148-32.1(b3), is that the reimbursement will cover the costs of housing, care, supervision, and transportation. The logistics of the program, including placement of inmates into a jail offering space to the program, will be administered by the North Carolina Sheriffs’ Association, Inc. If no space is available in a willing jail, the Sheriffs’ Association can place the inmate in DOC under new G.S. 148-32.1(b4).
When considering whether a defendant is eligible for the MCP, it appears that the judge should look at each individual misdemeanor sentence in isolation. In other words, consecutive sentences probably should not be aggregated to determine whether the defendant falls within the MCP range. I say that because new G.S. 15A-1352(e), setting out the eligibility window, is phrased in the singular: “a sentence” for “a misdemeanor.”
Misdemeanor sentences requiring confinement for more than 180 days. If a sentence or sentences imposed require confinement for 181 days or more, the commitment must be to DOC under amended G.S. 15A-1352(a). In contrast to the 91-to-180-day MCP threshold, the 181-day threshold should be evaluated based on an aggregate of all the defendant’s misdemeanor sentences; the statute is phrased in the plural, and in any event no single sentence for a misdemeanor under Structured Sentencing could exceed 150 days.
Caveat for Chapter 20 misdemeanors. The JRA did not make any change to the Chapter 20 caveat described above.
Felonies. Under the new law (amended G.S. 15A-1352(b)), felons must be committed to DOC.
The JRA did not change the rule for the place of confinement for special probation (a split sentence). The judge can order a split to be served in DOC or a designated local confinement facility or treatment facility, with the caveat that noncontinuous periods of confinement must be served in a local confinement facility or treatment facility. G.S. 15A-1351(a). The JRA created two new split-like forms of short-term confinement, 2–3 day “quick dips” under new G.S. 15A-1343(a1), and confinement in response to violation under new G.S. 15A-1344(d2). The quick dip provision states that the confinement must be served in a local confinement facility, so that’s straightforward. The JRA itself did not set out a place of confinement for periods of confinement in response to violation (which are 90 days for felonies and up to 90 days for misdemeanors), but House Bill 335, which appears to be on track to become law without the governor’s signature in about 10 days, clarifies that the confinement will be served “where the defendant would have served an active sentence.” So, 90-day confinement for felonies will always be in DOC, and confinement for misdemeanors will be in the local jail, an MCP jail, or DOC, depending on the length of the suspended sentences in the cases in which probation was violated.
In State v. Bowden, 193 N.C. App. 597 (2008), disc. rev. improvidently allowed, 363 N.C. 621 (2009), and Jones v. Keller, 364 N.C. 249 (2010), our appellate courts considered the sentence length and sentence credits applicable to a group of inmates with offense dates from the 1970s. They committed their crimes at a time when G.S. 14-2 read that a “sentence of life imprisonment shall be considered as a sentence of imprisonment for a term of 80 years in the State’s prison.” The inmates successfully argued in Bowden that, under the plain language of that statute, their “life” sentences should be considered 80-year sentences for all purposes—not just for things like determining parole eligibility. In Jones, however, a subset of the inmates (those convicted of first-degree murder) were unable to convince the supreme court that they were entitled to be released now based on their accumulated sentence reduction credits. Cases involving other inmates from the Bowden cohort (those sentenced to life for crimes other than first-degree murder) are still working their way through the system.
Bowden and Jones were big cases ( I wrote about them here and here, respectively). They involved important questions about when “life” means life and how the Department of Correction administers sentences. At the end of the day, though, the cases affected a relatively small number of inmates sentenced under a law that was only on the books from April 8, 1974, to June 30, 1978. A separate sentence-length matter that affects many more inmates may be on its way to the appellate courts soon. The issue is not what “life” means, but rather what our sentencing laws mean by a “month.”
Under G.S. 15A-1340.17, all felony sentences under Structured Sentencing are stated in months. For sentences of less than 12 months, DOC counts each month as 30 days. When a sentence exceeds 12 months, though, the Department converts each 12-month period into a 365-day year, and then values the remainder months at 30 days apiece. To provide some examples, a 4–6 month sentence will actually be treated as a 120–180 day sentence, regardless of which calendar months it includes. (So nobody gets a break by serving a sentence in February.) For a 13–16 month sentence, DOC will convert the first 12 months of the minimum and maximum into a 365-day year and then add one 30-day month to the minimum to achieve a total of 13 months and four 30-day months to the maximum to get to 16 months. The ultimate effect, mathematically, is a minimum of 395 days [that’s (1 x 365) + (1 x 30)] and a maximum of 485 days [(1 x 365) + (4 x 30)]. A 31–38 month sentence would be 940 days [that’s (2 x 365) + (7 x 30)] to 1155 days [(3 x 365) + (2 x 30)]. You get the idea.
A group of inmates sought declaratory relief, arguing that the Department’s method of sentence calculation is improper. They maintain that 12-month increments should not be repackaged into 365-day blocks. Rather, every month in a sentence should be worth 30 days, such that every “year” would count as 360 days (12 months x 30 days), not 365. In other words, under the inmate’s formulation, every Structured Sentencing sentence is 5 days too long for every 12 month period of imprisonment.
The inmates based their argument on a provision in Chapter 12 of the General Statutes—the chapter that governs statutory construction. Under G.S. 12-3(12), the words “’imprisonment for one month,’ wherever used in any of the statutes, shall be construed to mean ‘imprisonment for thirty days.’” DOC countered that under G.S. 12-3(3)—a separate provision in the same statutory section—the “word ‘month’ shall be construed to mean a calendar month, unless otherwise expressed; and the word ‘year,’ a calendar year, unless otherwise expressed.” The superior court judge hearing the matter agreed with DOC. You can read that order here.
If the case goes on to the appellate division it could affect thousands of inmates—albeit in relatively small increments for each of them. It might not be as heady as the meaning of “life,” but it adds up.