The chart available here summarizes the rules for the proper place of confinement for felonies, misdemeanors, and impaired driving. But additional questions come up from time to time that don’t fit neatly in a chart. Today’s post attempts to answer some of them. Continue reading
Tag Archives: jail
Some FAQ about Place of Confinement
Revised Place of Confinement Chart
Today’s post shares a revised chart for determining the proper place of confinement for a criminal conviction. The chart is available here. Continue reading →
Last year I posted a chart summarizing the proper place of confinement (jail, prison, or Statewide Misdemeanant Confinement Program) for various types of imprisonment. The chart covers active sentences, split sentences, CRVs, quick dips, and incarceration for nonpayment of a fine. One thing it does not explicitly cover, though, is the proper place of confinement for a sentence activated upon revocation of probation. In response to a flurry of questions, I’ll take that issue up today. Continue reading →
Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue. Continue reading →
You know I love a chart. I’ve made sex offender charts, Justice Reinvestment charts, maximum sentence charts, and drug trafficking charts. You should see the charts I make for family vacations! Today’s post presents a new chart detailing the proper place of confinement for all sorts of incarceration that a court might order, either at sentencing or in response to a violation of probation. It is here.
The chart was prepared in response to some changes the General Assembly made to the place-of-confinement rules this year. S.L. 2014-100. Mainly, the legislature expanded the Statewide Misdemeanant Confinement Program (SMCP) to include all impaired drivers (as Shea described here) and all misdemeanor sentences in excess of 90 days (not just those from 91 to 180 days). The DWI changes become effective for sentences imposed on or after January 1, 2015. The non-DWI changes kick in for sentences imposed on or after October 1, which is when you could begin using the chart.
The legislation also changed some of the rules for special probation (a split sentence) imposed at sentencing, as set out in revised G.S. 15A-1351(a). Like the active-sentence changes described above, the main goal of the split sentence change is to shift misdemeanants from prison to jail. The technical details of the change are reflected in the chart. Curiously, the bill did not change the rules for a split sentence imposed as a modification of probation. G.S. 15A-1344(e). Some additional changes related to confinement in response to violation (CRV) and the proper place of confinement for a person’s failure to pay a fine wind up being largely technical in nature, again as reflected in the chart.
Finally, remember that these changes mostly apply to sentences imposed after a certain date. There are still thousands of probationers whose suspended sentences were entered under the old place-of-confinement rules. If those sentences are activated, they should, in general, be administered as entered. It will take a few years for all of the old-rule cases to work their way through the system, and jail and prison officials should not be surprised when they receive revoked probationers who could not be committed to their custody for offenses sentenced today.
Convicted of DWI? Go Directly to Jail.
The General Assembly just made it a whole lot easier to determine whether a defendant imprisoned for a misdemeanor DWI conviction will serve his or her sentence in jail or prison. Defendants sentenced to imprisonment for misdemeanor impaired driving on or after January 1, 2015 will spend that time in a local confinement facility—a jail—rather than in prison, regardless of the length of the sentence.
Good riddance? We are policy-neutral here at the School of Government, but I’ll own my aversion to laws that I can’t explain. And, honestly, I cringe every time I have to explain the current rule. The starting point is G.S. 20-176(c1) (repealed by S.L. 2014-100 (S 744)), which provides:
Notwithstanding any other provision of law, no person convicted of a misdemeanor for the violation of any provision of this Chapter except G.S. 20-28(a) and (b), G.S. 20-141(j), G.S. 20-141.3(b) and (c), G.S. 20-141.4, or a second or subsequent conviction of G.S. 20-138.1 shall be imprisoned in the State prison system unless the person previously has been imprisoned in a local confinement facility, as defined by G.S. 153A-217(5), for a violation of this Chapter.
Thus, the rule generally applicable to sentences for all Chapter 20 offenses (including DWI) is that terms of imprisonment for active sentences, regardless of length, are served in local confinement facilities rather than in the custody of the Division of Adult Correction (DAC). This rule does not apply to a defendant who previously has been imprisoned in a local confinement facility for a Chapter 20 offense. The general rule also does not apply to convictions for certain offenses, among them a second or subsequent conviction of driving while impaired in violation of G.S. 20-138.1.
Have your eyes glazed over yet? Unfortunately, there’s more.
When an exception to the general rule of local confinement in G.S. 20-176(c1) applies, G.S. 15A-1352, which governs the appropriate place of confinement for criminal offenses generally, establishes the framework for where a term of imprisonment may or must be served. Applying that framework to impaired driving sentences became less straightforward after the legislature created a Statewide Misdemeanant Confinement Program for misdemeanor sentences of more than 90 and up to 180 days, but excluded impaired driving sentences from its purview. The bottom line appears to be that a person sentenced to imprisonment for a second or subsequent DWI has to serve that time in a local jail if the sentence is 90 days or less. Judges have discretion regarding the place of confinement for sentences of more than 90 and up to 180 days. And sentences of 181 days or more must be served in a DAC facility.
Yet another set of rules applies to imprisonment served as a condition of special probation. Pursuant to G.S. 15A-1351(a), noncontinuous periods of special probation for DWI as well as other criminal offenses may be served only in local confinement or treatment facilities. But if the special probation is ordered for a continuous period (say, 30 days), the judge has discretion over whether to order the defendant confined to jail or prison.
The new regime. New rules apply to misdemeanor impaired driving sentences imposed on or after January 1, 2015. New G.S. 15A-1352(f) provides that a person sentenced to imprisonment of any duration for impaired driving under G.S. 20-138.1, other than imprisonment required as a condition of special probation, must be committed to the Statewide Misdemeanant Confinement Program (SMCP). Under this program—established in 2011 pursuant to G.S. 148-32.1—the North Carolina Sheriffs’ Association identifies space in local confinement facilities that is available for housing misdemeanants. The program initially did not apply to sentences for misdemeanor impaired driving or to other misdemeanants serving sentences of more than 180 days. Sec. 16C.1.(a) of S.L. 2014-100 amends G.S. 15A-1352(a) to require that a person sentenced to imprisonment for a misdemeanor or for nonpayment of a fine for conviction of a misdemeanor must be committed to the SMCP if the sentence is for 91 days or more. Sentences of 90 days or less for such misdemeanor convictions (other than DWI) must be served in a local confinement facility. The changes applicable to misdemeanor sentences other than DWI apply to persons sentenced to imprisonment on or after October 1, 2014.
The bottom line for active terms of imprisonment for misdemeanor DWI under the new rule is that, no matter their length, they will be served through the SMCP. That means that defendants will be housed in a local jail, thought it may not be the jail in the county of conviction.
What about special probation? Under a sentence of special probation, a court may suspend the term of imprisonment and place the defendant on probation, requiring that the defendant submit to a period of imprisonment. For misdemeanor impaired driving sentences imposed on or after January 1, 2015, all imprisonment imposed as a condition of special probation must be served in a designated local confinement or treatment facility—regardless of whether the imprisonment is for continuous or non-continuous periods. The same rule applies to special probation for misdemeanors generally for sentences imposed on or after October 1, 2014.
Thus, all special probation (or split sentences) for misdemeanors–DWI and otherwise—will be served in a local confinement facility rather than a DAC facility under amended G.S. 15A-1351(a).
While the jury is out on whether changes to the place of confinement rules will save money, allow for a more efficient allocation of resources, or provide DWI inmates with the treatment and services they need, the amendments undoubtedly make the law easier to explain.
Most people can get behind the idea that inmates should, if able, do some sort of work during their incarceration. By statute, “[i]t is declared to be the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them.” G.S. 148-26. Inmate labor comes in many forms: work by jail inmates to benefit the government (described here); work inside an institution to accrue earned time (described here); work on a community work crew (G.S. 148-32.2); work for Correction Enterprises (which makes some really nice furniture and other products that any North Carolina government employee or retiree may purchase up to $2,500 of per year, G.S. 148-132); and work release. Today’s post is about work release.
Work release is the temporary release of a sentenced inmate to work on a job in the free community, outside the jail or prison, for which the offender is paid by the outside employer. Lots of good things can happen when an inmate is able to participate in work release. The inmate may be able to keep his or her regular job during the term of imprisonment. The sheriff or the prison system may be able to recoup the costs of the prisoner’s keep from the work release earnings. Victims may receive restitution and the inmate’s dependents may receive support payments from work release earnings. And many studies (like this one, for example) have shown a link between work release and lower recidivism rates. Data from the North Carolina Sentencing and Policy Advisory Commission routinely show work release inmates as having a lower percentage of reincarceration within two years of release (16.2% for work release inmates, compared to 24.1% for all inmates released in fiscal year 2008/09, according to the 2012 recidivism report).
Unfortunately, the laws applicable to work release can be a little confusing.
Felonies. When a person is given an active sentence for a felony, the court may recommend work release. G.S. 15A-1351(f). This is merely a recommendation, but under G.S. 148-33.1, the Secretary of Public Safety “shall authorize immediate work-release privileges for any person serving a sentence not exceeding five years in the State prison system and for whom the presiding judge shall have recommended work release.” That requirement is subject to the caveats that the person must have suitable employment and that “custodial and correctional considerations would not be adverse to releasing the person without supervision in the free community.” G.S. 148-33.1(a). “Suitable employment” and “custodial and correctional considerations” are fleshed out in the prison policy on work release. The same policy document also notes that an inmate with a sentence in excess of five years is not eligible for work release until he or she is within three years of the maximum release date. E.0703(c)(1). There is no statute or rule governing court recommendations against work release, but my sense is that such recommendations are generally honored.
Misdemeanors. When a person is given an active sentence for a misdemeanor, the judge may recommend work release. With the consent of the defendant the judge may also order work release. G.S. 15A-1351(f). This mandatory order is an exception to the general separation-of-powers rule that a judge cannot require a custodian to administer a sentence in a particular way. If a judge orders work release for a misdemeanant, the sheriff is obliged to carry out the order—which is why such orders should not be entered without advance coordination between the judge, the lawyers, the sheriff or jail administrator, and, of course, the prospective work release employer. When work release is ordered for a misdemeanant, the order must include the date the work is to begin, the place of confinement, a provision that work release terminates if the offender loses his or her job, and a determination about the disbursement of earnings, as described below. G.S. 15A-1353(f).
Place of confinement. Sometimes a person’s prospective work-release job will not be convenient to his or her ordinary place of confinement. With that in mind, the prison system has authority to move inmates within the prison system to a more suitable facility, and to contract for the housing of work-release inmates in the county jails as provided in G.S. 148-22(a). When a misdemeanant is ordered to work release, the court may, notwithstanding any other provision of law, commit the defendant to a specific jail or prison facility in the county of the sentencing court to facilitate the arrangement. With prior consent the court may sentence the person to a jail or prison in another county. G.S. 15A-1352(d). (Note that this authority may be limited this year as part of a broader plan to remove misdemeanor offenders from the prison system. See Senate Bill 744, section 16C.1.(b).)
Probationers. In general, the court should not make any recommendation for work release at the time of sentencing when the defendant receives a suspended sentence and probation. Any such recommendation may be made at the time of revocation if the defendant’s probation is revoked. G.S. 148-33.1(i). It is a fairly common practice for a judge to order work release during a term of special probation (a split sentence), although there is no explicit statutory authorization for or prohibition against that. (The practice was noted without disapproval in State v. Stallings, 316 N.C. 535 (1986).) The General Statutes likewise do not spell out any rules for work release during a term of Confinement in Response to Violation, although it apparently is not allowed as a matter of policy for a CRV served in prison.
Money. An inmate’s work release earnings generally go to the custodian (DAC or the sheriff, as the case may be), who determines how the money will dispersed. The custodian or court, as appropriate, must determine an amount for things like travel expenses to and from work, child support, and money required to comply with any judgment rendered by the court. G.S. 148-33.1(f). A judge ordering work release should also set the amount to be deducted by the custodian for the costs of the prisoner’s keep. That amount should be based on the specific facility’s actual costs; it is not a per diem set by statewide statute or rule. For any prisoner ordered to an active sentence, the court shall consider recommending to the Secretary of Public Safety that restitution be made out of the defendant’s work release earnings. G.S. 15A-1340.36; 148-33.2.
Escape. If a person fails to return to prison from his or her work release assignment, it’s an escape—unless the person returns to confinement within 24 hours, as provided in G.S. 148-45.
Clearly work release requires some additional legwork and administrative wrangling. But given the benefits described above, it seems like it’s often worth the effort.
When an Arrestee “Brings” Drugs to the Jail
When a person is arrested while in possession of drugs and is taken to the jail in handcuffs, may the person properly be convicted of possessing drugs in a confinement facility? The question has divided courts across the country. Last week, a majority of the court of appeals concluded that the answer is yes. State v. Barnes, __ N.C. App. __ (2013) (Ervin, J.) (McGee, J., dissenting).
Facts. The defendant was arrested for DWI, and while he was being processed at the jail, a bag containing 4.05 grams of marijuana fell out of his pants. He was eventually convicted of, inter alia, possession of marijuana at a confinement facility in violation of G.S. 90-95(e)(9).
Mens rea issue. The court first addressed the defendant’s argument that there was insufficient evidence to convict him, as there was no evidence that he intended to bring the drugs to a confinement facility. The court of appeals disagreed, unanimously on this issue, ruling that the offense is a general intent crime, requiring only that the defendant knowingly possessed drugs at a confinement facility, which he did.
Voluntariness issue. The issue that divided the court was the defendant’s argument that he did not commit the offense voluntarily, as he was brought to the jail under arrest. Although agreeing that criminal liability generally requires a voluntary act, the majority nonetheless rejected the claim. It noted that the statutory language defining the offense says nothing about voluntariness, and that the apparent purpose of the statute – to minimize drugs in jails – would be best served by giving it broad application. But the heart of the opinion stated that a majority of other jurisdictions (7 out of 10 cited in the opinion) have upheld convictions for similar crimes under similar circumstances, and endorsed the reasoning of many of those courts that “a defendant who is arrested with controlled substances in his possession has options other than simply taking the controlled substances with him into the confinement facility. For example, the defendant always has an opportunity to disclose the existence of these controlled substances to the arresting officer before he ever reaches the jail.”
Dissent. Judge McGee dissented on the voluntariness issue, reasoning that “[t]he officer took Defendant to the confinement facility. Defendant had no ability to choose his own course of action regarding his location,” and so did not voluntarily possess the drugs at the jail. As to the majority’s suggestion that the defendant had the option of disclosing the presence of the drugs before reaching the jail, Judge McGee concluded that requiring the defendant to do so would violate his Fifth Amendment privilege against self-incrimination. (The majority stated in a footnote that the defendant did not raise the Fifth Amendment issue but that, in any event, the dilemma was of the defendant’s own making and did not involve testimony under coercion.)
Further review. I couldn’t find any indication on the supreme court’s electronic docket that the defendant is seeking further review based on the dissent, but that would be a natural next step. So, stay tuned for further developments.
Side issue regarding conviction for simple possession. It’s worth mentioning briefly that the defendant argued, the State conceded, and the court of appeals ruled that the defendant should not have been convicted of both the confinement facility offense and the lesser-included offense of simple possession.
I have been getting many questions lately about the applicability and impact of the federal Prison Rape Elimination Act, or PREA. Specifically, people want to know the extent to which the law and its accompanying regulatory standards apply to local jails. This post provides some background on PREA and then discusses its applicability and enforceability.
PREA was passed in 2003. Pub. L. No. 108-79, 117 Stat. 972 (2003). Congressional findings included in the law conservatively estimated that 13 percent of the 2.1 million persons incarcerated in America’s prisons and jails have been sexually assaulted. Congress found that, among other things, sexual assaults against inmates traumatize victims, endanger public safety, increase recidivism, spread disease, and, ultimately, violate inmates’ Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment. 42 U.S.C. § 15601. The law created a commission to study the issue, and then directed the Attorney General to issue national standards for the detection, prevention, reduction, and punishment of prison rape. Those standards call for a zero-tolerance policy toward prison rape—though by law they are not to impose substantial additional costs on federal, state, or local authorities. 42 U.S.C. § 15607.
After a decade of study, research, and public comment, the Attorney General issued the final PREA standards on June 20, 2012, which made them effective August 20, 2012. 28 C.F.R. pt. 115. The standards applied to Federal Bureau of Prisons facilities immediately upon their adoption. State compliance, by contrast, is to be enforced indirectly through a grant incentive. Namely, a state will lose five percent of federal grant money it would otherwise receive for prison purposes unless its governor can certify each year that the State has adopted and is in full compliance with PREA standards. 42 U.S.C. § 15607(c). Even if not compliant, a state may avoid losing that cut of its grant money by certifying that it will be used to bring the state into compliance in future years. The audit cycle for state certification begins August 20, 2013, with the first gubernatorial certification reports due August 20, 2014. (A couple of the substantive standards have a delayed effective date, as I will discuss in my next post.)
Does PREA apply to local jails? Yes. The federal statute defines “prison” to include “any confinement facility of a Federal, State, or local government.” 42 U.S.C. § 15609(7). Correspondingly, the PREA standards impose requirements on “agencies,” which are defined as “the unit of a State, local, corporate, or nonprofit authority . . . with direct responsibility for the operation of any facility that confines inmates, detainees, or residents.” 28 C.F.R. § 115.5. With those definitions in place, PREA and its standards apply to all local jails.
But applicability is not the same as enforceability. As discussed above PREA is enforced on the states through the threat of grant reductions, and those grant reductions are triggered by the governor’s certification. The standards explicitly say that the governor’s certification applies only to “facilities under the operational control of the State’s executive branch.” 28 C.F.R. § 115.501(b). The certification must include “facilities operated by private entities on behalf of the State’s executive branch,” id., but it does not include local government entities that house state inmates. The Attorney General’s overview of the standards notes that omission, saying that the governor’s “certification, by its terms, does not encompass facilities under the operational control of counties, cities, or other municipalities.” 77 Fed. Reg. 37106, 37115. So, North Carolina’s locally-administered jails will not be directly included within the governor’s annual PREA certification.
Does that mean jails are off the hook when it comes to PREA? No.
First of all, it is possible that the General Assembly might require jails to comply with PREA as a matter of state law. Pending legislation, H 585, would direct the state prison system and all juvenile facilities to comply with PREA, plain and simple. Some prior versions of the bill have also required jails to comply, and some versions have not. The most recent version of the bill takes what appears to be a middle ground, proclaiming it to be the policy of the General Assembly that local jails “should comply” with PREA.
Regardless of how H 585 plays out, PREA may impact jails in several other ways.
Federal prisoners. Some North Carolina jails house federal inmates for the Federal Bureau of Prisons, the U.S. Marshals Service, or Immigration and Customs Enforcement. Those inmates are housed pursuant to contracts between the county and the United States. G.S. 162-34. PREA standards require that any agency “that contracts for the confinement of its inmates with private agencies or other entities, including other government agencies, shall in include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards.” 28 C.F.R. § 115.12 (emphasis added). The contract must provide for “monitoring to ensure that the contractor is complying with the PREA standards.” Id. I have already heard from a couple of sheriffs that BOP has discussed including a PREA-compliance clause in its contracts with the counties. PREA compliance may be worthwhile for jails that make a lot of money housing federal inmates.
Statewide Misdemeanant Confinement Program (SMCP). The SMCP, discussed in detail here, is a program through which counties may volunteer to house certain misdemeanor inmates. Counties contract with the Department of Public Safety to house SMCP inmates under G.S. 148-32.1. Like the contracts with the federal government described above, SMCP contracts are contracts for the confinement of an agency’s inmates, and thus appear to be required under § 115.12 to include a PREA-compliance clause in any new or renewed contract. Today, 50 of North Carolina’s 100 counties participate in the SMCP.
Accreditation. Some North Carolina jails are accredited by national organizations like the American Correctional Association. PREA says that no accrediting agency may receive federal grant funds unless it adopts accreditation standards consistent with the PREA standards. 42 U.S.C. § 15608. As a result, any jail that has or is seeking accreditation may wind up effectively having to comply with PREA as a part of the accreditation process.
Civil liability. Even if there is no direct financial penalty for a local jail that fails to comply with PREA, there is some concern that the federal standards may evolve into a standard of care in civil actions related to inmate sexual abuse. That is a legitimate concern, but jails should also bear in mind that compliance with the standards does not establish a safe harbor from any civil claim related to sexual abuse.
To conclude, even if there is no direct financial penalty to anyone for a jail’s failure to adopt the PREA standards, compliance may eventually be required (a) under potential state law, (b) as a matter of contract, (c) as part of the accreditation process, or (d) to minimize the risk of civil liability. Another possibility—not to be lost in all this technical discussion of federal regulations—is that a sheriff might decide to adopt the standards because he or she believes it is the right thing to do to protect the inmates and staff for whom he or she is responsible.
I’ve gone on for over 1,200 words on the applicability and enforcement of PREA without saying anything about the substance of the standards themselves. I’ll do that in my next post.
Delaying the Start of a Sentence
Sometimes, after being convicted and sentenced to jail or prison, a defendant asks for a little time to get his or her affairs in order before the sentence begins. Can the court delay the start of the sentence?
Under G.S. 15A-1353(a), “[u]nless otherwise specified in the order of commitment, the date of the order is the date service of the sentence is to begin.” So, the default is that the sentence will start immediately, but the statute allows the court to specify some future date for the sentence to begin. The official commentary accompanying the statute puts it even more plainly: “Although the presumptive beginning date for the term of imprisonment is the date of the commitment order, the judge may specify a delayed beginning dated to permit the defendant to get his affairs in order.”
The same authority probably applies when the court revokes a defendant’s probation and activates his or her suspended sentence. The official commentary to G.S. 15A-1353 says that “[s]ubsection (a) applies to both an initial sentence to imprisonment and to the activation of a sentence following probation revocation.” There is, perhaps, some argument to the contrary; G.S. 15A-1344(d) says that a “sentence activated upon revocation of probation commences on the day probation is revoked.” But I think that provision is directed at the rule that activated sentences run concurrently with other sentences unless the revoking judge says otherwise (a rule discussed long ago on this blog, here), and not intended as an exception to G.S. 15A-1353(a).
A special provision, discussed here, applies for pregnant defendants. The court may specify that a woman’s sentence does not begin until at least six weeks after the birth of her child or other termination of the pregnancy. G.S. 15A-1353(a).
Once begun, an active sentence for a crime sentenced under Structured Sentencing must be served continuously. A judge does not have authority to order the sentence served on weekends or some other non-continuous days, State v. Miller, 205 N.C. App. 291 (2010) (discussed here), as he or she does with split sentences (under G.S. 15A-1351(a)) or impaired driving sentences (under G.S. 20-179(s)).
Of course, delaying the onset of a defendant’s sentence carries with it the risk that the person will not report to prison at the appointed time. What to do then? An order for arrest could be issued on the grounds that it is necessary to take the defendant into custody. G.S. 15A-305(b)(5). The defendant could also be ordered to show cause why he or she should not be held in criminal contempt for disobeying the court’s order to report. I am sometimes asked—typically in the context of probationers who fail to report to the jail to serve part of a split sentence—whether the failure to report could also be construed as an escape. I don’t think so. Our escape statute includes a provision making it a crime to fail to return to prison after a work release assignment or other temporary leave, G.S. 148-45(g), but I read that provision as limited to failures to “return,” and not applicable to failures to show up in the first place.
Given the risks associated with delaying a sentence, I don’t get the impression that it happens very often. Am I right about that? Do courts accomplish roughly the same thing through other means, such as by continuing prayer for judgment prior to sentencing rather than delaying the sentence itself? When a sentence is delayed, how is it done operationally? The statute concerning pregnant defendants expressly allows the court to “impose reasonable conditions upon defendant during such waiting period to insure that defendant will return to begin service of the sentence,” but there is no generally applicable statutory grant of authority to set release conditions after judgment (unless G.S. 15A-536, allowing the court to set conditions for defendants “awaiting sentence,” can be read broadly enough to apply). Do courts nonetheless set conditions? As always, I would appreciate any legal, practical, or anecdotal feedback our readers can provide.