Where to Serve a Sentence

Tag Archives: jail

Where to Serve a Sentence

Posted on October 5, 2011 by Jamie Markham

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.

Category: Sentencing, Uncategorized | Tags: doc, jail, justice reinvestment, prison, Sentencing, split sentences

Credit for Work and Educational Programs in the Jail

Posted on August 1, 2011 by Jamie Markham

One of the goals of the Justice Reinvestment Act is to have more misdemeanants serve their time in the county jail instead of the Department of Correction. I’ll write soon about the new rules for determining where a sentence should be served (you should disregard this prior post on that subject). In the meantime, it strikes me that some sheriffs and jailers—faced with the prospect of housing additional sentenced inmates—might like a refresher on the various credits that can be applied to a misdemeanor sentence served in the jail. (This post will not cover good time credit for impaired driving inmates because good time is not a work or education credit; it is based solely good behavior. You can read all about that here.)

For misdemeanants sentenced under Structured Sentencing (which is to say almost everyone except impaired drivers), there are two broad types of credit that the jail could award: (1) earned time and meritorious time credit pursuant to statewide regulations and (2) credit for work or educational programming pursuant to the sheriff or jail administrator’s authority under G.S. 162-60.

The Department of Correction (DOC) sets the rules on earned time and meritorious time, and under G.S. 148-13(e), those regulations “shall be distributed to and followed by local jail administrators with regard to sentenced jail prisoners.” The latest version (May 2011) of the regulation is available here. According to the regulation, jails have a responsibility to establish procedures for granting, approving, and documenting all sentence credits. DOC Policy & Procedure B.0116(b)(1). The regulations also set out default credit rules for medically and physically unfit inmates.

Earned time is sentence reduction credit for participation in work or program activities. It is for Structured Sentencing inmates serving an active sentence and does not apply to DWI inmates, those in custody for contempt of court, health law violators, or probationers serving a split sentence. Misdemeanants, unlike felons, are not subject to a minimum sentence below which they may not dip through earned time credit, but their sentence reduction is limited to the extent that they may receive a total of no more than 4 days of earned time credit per month of incarceration. G.S. 15A-1340.20(d). Any inmate eligible for earned time is also eligible for meritorious time for things like working overtime, working in emergency or inclement conditions, exemplary acts, and certain educational and programmatic achievements. Meritorious time is capped at four days per month for misdemeanants. If a sheriff or jail administrator wishes to award meritorious credit he or she must forward the recommendation to DOC’s Chief of Program Services for final review and approval.

A county may decide to have its own program—independent of DOC regulations—for awarding credit for certain work and educational programs for sentenced inmates in the jail. Under G.S. 162-58, a board of county commissioners, subject to approval by the sheriff, may issues rules and regulations for work “on projects to benefit units of State or local government” by convicted inmates. The work has to be under the supervision of county employees or sheriff’s personnel. A sheriff or jail administrator may also allow a convicted misdemeanant to participate in a GED program or “any other education, rehabilitation, or training program”—a fairly broad authorization—under G.S. 162-59.1; no board action is required for those programs. An inmate is entitled to a sentence reduction of 4 days for each 30 days of work performed or each 30 days of classes attended—with the caveat that an inmate’s total sentence reduction by earned time and credit under G.S. 162-60 shall not exceed four days per month of incarceration. G.S. 15A-1340.20(d).

Category: Sentencing, Uncategorized | Tags: credit, earned time, jail, Sentencing, sheriff

Strip Searches of Arrestees at the Jail

Posted on February 19, 2010 by Jamie Markham

Jeff wrote earlier this week about roadside strip searches. Today’s post is about strip searches of arrestees as they are booked into the jail.

The longstanding rule regarding searches of arrestees as they are processed into the jail is that they may not be strip searched without reasonable suspicion that they are concealing a weapon or some other contraband. In many cases from across the country, including the Fourth Circuit, policies of strip searching all arrestees are held unconstitutional, sometimes leading to personal liability for the sheriff and jailer. See Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981) (strip search of a DWI arrestee had no “discernible relationship to security needs at the Detention Center that, when balanced against the ultimate invasion of person rights involved, it could reasonably be thought justified”).

The Supreme Court set out the general test for evaluating the Fourth Amendment reasonableness of inmate searches in Bell v. Wolfish, 441 U.S. 520 (1979). In that case, a group of inmates (including some pretrial detainees) at a federal facility in New York argued that the facility’s strip search policy violated their Fourth Amendment rights. The policy required all inmates, regardless of the reason for their detention and without any individualized suspicion, to “expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution.” Id. at 558. The policy required males to “lift their genitals and bend over to spread [their] buttocks for visual inspection,” and required the visual inspection of females’ vaginal and anal cavities. The Supreme Court upheld the searches, applying a balancing test that weighed the government’s need to conduct the particular type of search against the intrusiveness of the search and the place and manner in which it was conducted.

That the visual body cavity searches in Bell were upheld might make you think that lesser intrusions—like, for example, viewing arrestees in a state of undress as they process into the jail—would also be upheld. They have not been. The distinction courts typically make is that Bell involved inmates already processed into the jail returning from contact visits with outsiders as opposed to arrestees arriving at the jail for the first time. Courts generally accept the argument that arrests, unlike contact visits, are unplanned events that don’t allow arrestees time to hide contraband on their person, and so a policy of strip searching all arrestees is unreasonable under the Fourth Amendment.

Recently, however, decisions from two federal appellate courts cast doubt on the arrestee/contact visit distinction and, consequently, on the strength of the rule against blanket arrestee strip searches.

In Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008)(en banc), the Eleventh Circuit upheld a jail’s blanket policy of conducting full body visual strip searches of all detainees being booked into the general jail population. The court ruled en banc that the booking procedures of the Fulton County Jail in Atlanta, where, by policy, officers inspect the naked front and back of all arrestees as they undressed, showered, and changed into jail-issued clothing, were not unreasonable under the Fourth Amendment. The court said the “security needs that the Court in Bell found to justify strip searching an inmate re-entering the jail population after a contact visit are no greater than those that justify searching an arrestee when he is being booked into the general population for the first time.” Id. at 1302. Indeed, the court said, initial processing is much like coming into the jail after “one big and prolonged contact visit with the outside world.” Id. at 1313.

The court also challenged head-on the notion that arrestees are generally unprepared for the moment of arrest and therefore unlikely to have concealed items on their person before entering the jail. Even in routine traffic stops, the court said, arrestees often have time to secrete items “before the officer reaches the car door.” Many people surrender on their own when notified of an outstanding warrant; some, particularly, gang members, might deliberately get arrested just to smuggle contraband into the jail. These arrestees, who have “all the time they need to plan their arrests and conceal items on their person,” present no less a danger to institutional security than the post–contact visit inmates in Bell, and the reasonableness of strip searching them ought therefore to be evaluated similarly.

Just last week in Bull v. City and County of San Francisco, __ F.3d __ (9th Cir. 2010)(en banc), the Ninth Circuit upheld a sheriff’s policy requiring strip searches of all arrestees introduced into the city’s general jail population. The San Francisco sheriff instituted the policy in response to the discovery of over 1,500 contraband items in the general jail population in a three-year period, including, among other things, 106 shanks, 17 handcuff keys, and 24 gallons of homemade alcohol. Under the policy, officers required arrestees to “remove or arrange some or all of [their] clothing so as to permit a visual inspection of the underclothing, breasts, buttocks or genitalia of such person.” Officers were not allowed to physically touch inmates, and searches were to be performed in a professional manner in an area of privacy. Like the Eleventh Circuit in Powell, the Ninth Circuit determined that the sheriff’s policy in San Francisco was not meaningfully different in terms of scope, manner, or justification from the visual body cavity search policy upheld by the Supreme Court in Bell v. Wolfish.

The decisions in Powell and Bull set up a circuit split that may lead the Supreme Court to weigh in. (If it does, there is some speculation as to whether Justice Breyer would recuse; his brother, Judge Charles Breyer of the Northern District of California, was the trial judge in the Bull case.) Until it does—or until the Fourth Circuit reconsiders the issue—jailers in North Carolina should continue to limit arrestee strip searches to circumstances where an officer reasonably suspects the arrestee possesses contraband.

Category: Search and Seizure, Uncategorized | Tags: arrestees, jail, search, strip searches

Go Directly to Jail (or Is It Prison?)

Posted on June 18, 2009 by Jamie Markham

Last week the News and Observer ran an article about a legislative proposal to send more inmates to county jails instead of DOC facilities. A separate part of the plan proposed to reduce or eliminate reimbursement payments the state sends to the counties for certain inmates held in the jails. Both proposals appear to have been tabled for now, but I get questions about these issues (where to serve, and who pays), so a blog post seemed appropriate.

Regarding where a sentence should be served, the defaults under current law are set out in G.S. 15A-1352 as follows:

* Misdemeanants sentenced to 90 days or less must serve their time in a jail, except when the custodian of a jail certifies that it is full under G.S.148-32.1. Many county jails have “overcrowding letters” on file with DOC, specifying that sentences exceeding a certain length (e.g. 30 days, or 60 days) will be served in prison, not in the jail. I sometimes hear people refer to 180 days as the jail-prison cutoff point. That was the case under older law, but Session Law 1993-538 changed the threshold to 90 days.

* For misdemeanants sentenced to over 90 days, the judge decides where the time will be served, DOC or the jail.

* Felons must be committed to DOC, unless the sheriff or the board of commissioners of a county request that the person be sentenced to a local confinement facility in their county.

As for reimbursements from the state to the counties, the state currently pays the counties a per diem rate for two categories of jail inmates: those serving a sentence of 30 days or more, and those awaiting transfer to DOC (the so-called jail backlog). For inmates serving sentences of 30 days or more, G.S. 148-32.1 requires DOC to pay the counties a per diem rate set by the General Assembly in its appropriations acts, plus any extraordinary medical expenses. The current reimbursement rate for these inmates – set by the General Assembly in 1997 – is $18 per inmate per day. That doesn’t come close to the actual cost to the county, which I believe ranges between $50 and $100, depending on the county. (Please weigh in if you have more detailed information.) Regarding the jail backlog, under G.S. 148-29, DOC pays a county $40 for every day an inmate spends in the jail after the sheriff has notified DOC that the inmate is ready for pick-up. The General Assembly set the $40 figure in 1999.

Another question I have been getting in these tough financial times relates to what fees the jail can charge inmates. Jail fees are governed by G.S. 7A-313, which establishes a uniform jail fee of $5 for every 24 hours of pretrial confinement for defendants who are ultimately convicted. That provision goes on to say that “persons ordered to pay jail fees pursuant to a probationary sentence” must pay a fee equal to the amount paid by DOC to the jail for maintaining a prisoner. I interpret that part of the law to mean a judge can order a defendant sentenced to special probation to pay $18 for each day spent in jail as part of the active component of the split sentence. G.S. 7A-313 makes no reference to assessing fees for inmates sentenced to straight active time, and aside from certain work-release inmates (who may, under G.S. 148-33.1(f), be ordered to pay for the cost of their keep), I don’t see any basis for doing so.

Category: Sentencing, Uncategorized | Tags: jail, prison, Sentencing

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