Justice Reinvestment on the Ground

Tag Archives: jra

Justice Reinvestment on the Ground

Posted on August 26, 2014 by Jamie Markham

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.

Category: Sentencing, Uncategorized | Tags: advanced supervised release, asr, delegated authority, jra, justice reinvestment, probation, quick dips

North Carolina on Probation

Posted on January 27, 2014 by Jamie Markham

This morning’s New York Times included an opinion piece by Bill Keller entitled America on Probation. It talks about the recent movement away from incarceration as the cornerstone of the American criminal justice system, and the emergence of new community-based supervision strategies that are both cheaper and, advocates argue, more effective.

The editorial coincides with the release of a new report from the Urban Institute on the progress of a multi-state initiative that lies at the heart of this movement. If you read this blog you’ve probably heard of it. It’s called Justice Reinvestment.

I encourage you to read the editorial and the Urban Institute report—or at least the portions of the report that describe the Justice Reinvestment experience in North Carolina (pages 93–96). For those of you who practice here, it’s interesting to see how an external group describes the collective effect of what you do each day. The report also acknowledges the difficulty of the transition in a way that I know many of you have experienced. See, e.g., Urban Institute report at 94 (“State leaders and stakeholders have decided that the original timeline for implementation was too ambitious.”)

Perhaps more importantly, these resources may give you an opportunity to step back from your day-to-day work and reflect on broader trends in criminal justice. If there is indeed an emerging scientific consensus about what works best in corrections, professional people doing a serious job probably want to know about it. Even if you disagree with it, you would want to be aware of it to the extent that it is shaping the law and the administrative policy of the agencies that carry it out.

If you want to read a closer-to-home review of North Carolina’s experience with Justice Reinvestment, I recently wrote an informal one for the True Bill, the newsletter of the Criminal Justice Section of the North Carolina Bar Association. You can find it here.

Category: Sentencing, Uncategorized | Tags: jra, justice reinvestment, proabtion

Alleging Probation Violations in a Post-JRA World

Posted on May 16, 2013 by Jamie Markham

How specific does a probation violation report need to be about which condition the probationer allegedly violated? Until last week, I would have said “not very.” A new case from the court of appeals has made me change my answer.

The case is State v. Tindall. In it, a woman was ordered to attend a substance abuse program as a condition of probation. Less than a month into the program the defendant was caught partying and doing drugs with other program residents. She admitted to “snorting ten lines of cocaine.” Slip op. at 3. In response, her probation officer filed a violation report alleging two violations: (1) a violation of the “not use, possess or control any illegal drug or controlled substance” condition; and (2) a violation of the “participate in . . . treatment . . . and comply with all further therapeutic requirements” condition. Both violations occurred in February 2012—well after December 1, 2011, and thus subject to the revocation limitations of the Justice Reinvestment Act. Under the JRA, revocation is allowed only for a new criminal offense, absconding, or for a defendant who has already received two periods of confinement in response to violation. The trial court nonetheless revoked the defendant’s probation, recasting one of the alleged technical violations (the drug use) as a new criminal offense (probably possession of a controlled substance) and then using it as a justification for revocation.

The court of appeals reversed, holding that revocation was not allowed because the defendant was not on notice that revocation was a possible outcome of the hearing. The court rejected the State’s contention that the violation report put the defendant on notice of the alleged offending conduct (possessing drugs), even if it didn’t peg the behavior to the precise condition ultimately violated. That argument found support in State v. Hubbard, 198 N.C. 154 (2009), which you can read about here. The court of appeals distinguished Hubbard because it was decided at a time when any single violation was a sufficient grounds for revocation. After Justice Reinvestment, the court said, the defendant may only be revoked if he or she receives (or waives) notice of a revocation-eligible violation.

Suppose the notice had been proper, or that the defendant had waived her right to notice of a “new criminal offense” violation at the hearing. Would it have been okay to reframe a technical violation as a new criminal offense to set the table for revocation? I am asked about that all the time. The most common example I hear about is a positive drug screen being recast as the crime of possession of a controlled substance. A positive drug screen, standing alone, is not sufficient to support a conviction for possession of a controlled substance, State v. Harris, 361 N.C. 400 (2007), but it might suffice to prove a violation of probation premised on the commission of that crime, given the lower standard of proof at a probation violation hearing. More generally, our existing case law suggests that Community Corrections and the State may pursue a “new criminal offense” probation violation based on a pending criminal charge or even uncharged conduct (an issue I discussed at length here). Nevertheless, I wouldn’t be shocked if the appellate courts revised their take on that rule in a post-JRA world—just as they refined the rule on proper notice in Tindall.

But that’s just speculation. For now, the practical bottom line from Tindall is that revocation is improper without notice of a revocation-eligible violation, two prior CRV periods, or a waiver.

Category: Sentencing, Uncategorized | Tags: jra, justice reinvestment act, probation, probation violations, tindall

Smartphone App on Justice Reinvestment

Posted on April 25, 2013 by Jamie Markham

Probation Confinement Options Other than CRV

Posted on September 17, 2012 by Jamie Markham

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.

Category: Sentencing, Uncategorized | Tags: confinement in response to violation, contempt, CRV, jra, justice reinvestment act, probation, split sentences

The Absconding Donut Hole

Posted on September 5, 2012 by Jamie Markham

In 2012, a person on supervised probation for an offense that occurred before December 1, 2011 moves to another state without permission. Months later he is arrested there and brought back to North Carolina for a violation hearing. May he be revoked for absconding? I don’t think so. This post discusses why.

Effective for offenses committed on or after December 1, 2011, the Justice Reinvestment Act made it a regular condition of probation that a defendant not “abscond, by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising probation officer.” G.S. 15A-1343(b)(3a). The new regular condition is the first true absconding condition in North Carolina. In fact, aside from a brief mention in the Crime Victims’ Rights Act (G.S. 15A-837), it is the first use of the word “abscond” in the criminal law statutes. Previously, offenders alleged to be “absconders” were generally violating one of two statutory conditions of probation: the “remain within the jurisdiction” condition or the “report as directed . . . to the officer” condition. The absconding terminology was derived from Community Corrections policy, not the law. The new absconding condition was initially made effective for “probation violations occurring” on or after December 1, 2011. S.L. 2011-192, sec. 4.(d). But that didn’t make sense—how could a condition become effective only upon a violation of it?—so the effective date clause was amended by a technical corrections bill to make the law applicable to offenses committed on or after December 1, 2011. S.L. 2011-412, sec. 2.5.

One of the major changes made by the JRA is that the court can only revoke probation for violations of the “commit no criminal offense” condition, absconding, or for probationers who have already received two periods of confinement in response to violation. The statutes setting out courts’ revocation authority for absconders, G.S. 15A-1344(a) and -1344(d2), both refer explicitly to violations of the new statutory absconding condition, G.S. 15A-1343(b)(3a), not to absconding generally. Thus, violations of other conditions (like the “remain within the jurisdiction” condition or the “failure to report to the officer” condition) appear to be ineligible for revocation, even if Community Corrections refers to them as absconders.

The problem, of course, is that thousands of probationers are not subject to the statutory absconding condition. As discussed in the opening paragraph above, that new condition only applies to probationers with offense dates on or after December 1, 2011—a cohort that is only recently starting to come onto probation in large numbers. With that in mind, in various JRA training sessions I have stressed the distinction between “statutory absconders,” who may be revoked, and “policy absconders” (people Community Corrections calls absconders but who are not subject to the statutory absconding condition), who apparently may not be revoked. You can listen to a discussion of the issue in this free webinar, presented to all probation officers in November 2011, beginning around the 31-minute point.

I have received lots of calls in the past two weeks about offenders falling in this “donut hole”—the apparent gap created by the effective date of the absconding condition and the wording of the statutes limiting judges’ authority to revoke. I’m not sure there’s much that can be done about it. Some have asked if the judge can add the statutory condition for an offender on probation for an offense that occurred before December 1, 2011, just in case the offender absconds in the future. Perhaps, although I think there would be a pretty good argument that, in light of the effective date for the new regular statutory absconding condition, any “don’t abscond” condition added to an older case is really just a special condition under G.S. 15A-1343(b1)(10), and still not a permissible basis for revocation.

None of this is to say that offenders not subject to the statutory absconding condition get a free pass. Violations of the “remain within the jurisdiction” condition or the “failure to report” condition are still technical violations eligible for confinement in response to violation (CRV), special probation, or some other modification of probation. And if the offender allegedly absconded before December 1, 2011, he or she would be eligible for revocation under the applicable prior law; the JRA’s limits on judges’ revocation authority only kicked in for violations occurring on or after December 1, 2011. So, if an offender who disappeared a long time ago turns up now, he or she may not fall into this so-called donut hole at all.

Even for offenders actually subject to the new statutory absconding condition, it is not entirely clear from the language of the condition itself what it means for a probationer to avoid supervision, or how long a person’s whereabouts must be unknown before he or she becomes an absconder. I think those thresholds will, to some degree, be shaped by other conditions to which the probationer may be subject and by the contact frequency standards associated with his or her supervision level. Additionally, probation officers are still required as a matter of their internal policy to conduct a specialized investigation before declaring that an offender has absconded. That investigation includes attempting to contact the offender by telephone, visiting the offender’s residence in the daytime and in the evening, contacting the offender’s landlord and neighbors, visiting the offender’s workplace or school, contacting the offender’s relatives and associates, and contacting local law enforcement, including the jail. Section of Community Corrections Policy § E.0503.

Category: Procedure, Sentencing, Uncategorized | Tags: absconders, absconding, donut hole, jra, justice reinvestment, probation, probation revocation, probation violations

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