Another stop on the recent North Carolina Judicial College Correctional Facilities Tour was the Burke CRV Center in Morganton. Today’s post shares what we learned about defendants ordered to serve 90 days of confinement in response to violation for a technical violation of probation or post-release supervision. Continue reading
Tag Archives: justice reinvestment
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 →
The Justice Reinvestment Act created confinement in response to violation (CRV) as an alternative to revocation for technical violations (violations other than a new criminal offense or absconding). The theory was that CRV would serve as a temporary intervention for technical violations (90 days for a felony or up to 90 days for a misdemeanor), after which the offending probationer would return to supervision to finish his or her period of probation in the community. It doesn’t always happen that way. Many CRVs are “terminal,” in the sense that they are the last thing that happens in the probation case. Today’s post summarizes the different types of terminal CRVs.
In my view there are three types of “terminal CRVs.”
The first type of terminal CRV is one that uses up the remainder of a defendant’s suspended term of imprisonment. For example, when a misdemeanor probationer with a 45-day suspended sentence receives a 45-day CRV, that is a terminal CRV. Even if there were many months remaining on the period of probation when the court ordered the CRV, its completion would bring about the end of the case, because there can be no further probation supervision when there is no sentence left to suspend. In that regard, this type of terminal CRV is the functional equivalent of a revocation.
Obviously this type of terminal CRV is much more likely to arise in a misdemeanor case than a felony case. Felony maximum sentences are long enough that a 90-day intervention is unlikely to use up even the shortest felony suspended sentence. But for misdemeanor sentences—the vast majority of which are under 90 days—CRV was never a good fit. In fact, so common was the terminal CRV for misdemeanants (over half of them were terminal in 2016 according to data from the N.C. Sentencing and Policy Advisory Commission) that the legislature repealed CRV for Structured Sentencing misdemeanants, effective for persons placed on probation on or after December 1, 2015 (details here). For misdemeanants placed on probation after that date, CRV is not an option, and so there will be no more terminal CRVs for them.
I have heard people argue that this type of terminal CRV ought to include a felon whose CRV carries him beyond the point where he would be due for release to post-release supervision had the sentence been active. For instance, suppose a defendant with a 4-14 month sentence and one prior 90-day CRV was ordered to a second 90-day CRV. Is his suspended sentence “used up” when he gets to the point where he has 5 months of jail credit, given that the last 9 months of the maximum are actually for post-release supervision? In my opinion, no, for the reasons described in this prior post. I think the person should return to probation unless the full maximum has been served—but everyone should be aware that any subsequent “revocation” will actually result in an immediate release to post-release supervision.
The second type of terminal CRV is one where the defendant’s period of probation expires during his or her service of the CRV. For example, a defendant with a 36-month period of probation ordered at the 35-month point of the supervision period to a 90-day CRV would have a terminal CRV, because probation will expire before the CRV is complete. Sometimes probation will have expired even before the CRV is ordered. When a violation report is filed before probation expires, the court has jurisdiction to act on the case under G.S. 15A-1344(f). If the court orders CRV in that post-expiration period, the CRV will be terminal. (I suppose there is some argument that G.S. 15A-1344(f) does not empower the court to order CRV at all, because it mentions only extension, modification, or revocation.)
Six years into Justice Reinvestment, we still don’t have any appellate cases examining whether CRV confinement may permissibly extend beyond the expiration of the defendant’s period of probation. The special probation statute expressly forbids a split sentence from extending beyond a defendant’s period of probation. G.S. 15A-1344(e) (“No confinement other than an activated suspended sentence may be required beyond the period of probation . . . .”). The CRV statute, G.S. 15A-1344(d2), does not say anything about it one way or the other, but to the extent that we conceptualize it as a modification of probation, it seems like there’s at least an argument that it should end when probation does. (If that were the case, it would mean our 90-day CRV ordered at the 35-month point of a 36-month probation would stop after 30 days.) Corrections does not see it that way, and will carry out a full CRV even if probation expires in the middle of it.
The final type of terminal CRV isn’t a “natural” termination like type 1 (run out of suspended sentence) or type 2 (run out of probation period). It is, rather, a CRV followed by an affirmative termination by the judge. In fact, Community Corrections does not record these as terminal CRVs, but puts them in a separate category called CRV-and-terminate. According to the Sentencing Commission, courts entered a CRV-and-terminate 12 percent of the time in felony cases and 17 percent of the time for misdemeanors.
As a matter of training and departmental guidance, probation officers are discouraged from recommending a CRV-and-terminate. The felony CRV centers in particular are meant to be a temporary intervention where a probationer receives intensive behavior modification programming and then returns to supervision in the community. They are not generally intended as a place of confinement for a de facto “revocation-light” that winds up being the last action in the case.
When it comes to giving proper notice of a probation violation, what is the critical thing: identifying the condition actually violated, or describing the behavior constituting the violation? The supreme court tells us in State v. Moore. Continue reading →
Whether or not to grant a conditional discharge for an eligible defendant under G.S. 90-96(a) used to be within the discretion of the trial judge. In 2011, Justice Reinvestment made G.S. 90-96(a) mandatory for eligible defendants who consented to it. Two years later, it was once again made discretionary. Or was it? Continue reading →
Can a probationer be revoked for a violation of the “commit no criminal offense” probation condition if the violation report alleges only that the person has been charged with a crime? Continue reading →
These days, figuring out the permissible ways to respond to a probation violation is easy. All you need to know is the date of the offense for which the person is on probation. And the type of offense (felony, Structured Sentencing misdemeanor, or DWI). And the date the person was placed on probation. And the date of the alleged probation violation. And bear in mind, of course, that the person may be on probation for more than one offense, with different rules applicable to each case. Once you have all that—piece of cake! Continue reading →
Some felony probationers ordered to serve a period of confinement in response to violation (CRV) wind up spending more time behind bars than they would have if their probation been revoked. Continue reading →
After Justice Reinvestment, all North Carolina felonies are predicate felonies for certain federal purposes. That was the Fourth Circuit’s recent conclusion in United States v. Barlow. The decision significantly rolls back the court’s 2011 ruling in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), which held that many low-level North Carolina offenses were not felonies under federal law.
Forgive the Star Wars references in this post’s title and below—I know this is serious business for defendants and victims, and not something to be taken lightly. But the recent history of how prior North Carolina felonies count for various federal purposes has an ebb and flow that called the series to mind. Here is a short history of the issue.
Prequels. Under various federal laws, prior state convictions for a felony can trigger certain additional criminal consequences. How those qualifying prior offenses are defined varies from law to law, but the focus generally is on the maximum punishment for the offense. For example, the federal Controlled Substances Act allows for a sentence enhancement for defendants with a prior drug offense “punishable by imprisonment for more than one year.” 21 U.S.C. § 804(44). Similarly, the federal firearm prohibition applies to persons with a prior conviction for a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g). The same language appears in the armed career criminal sentence enhancement. 18 U.S.C. § 924(e).
Before 2011, whether a federal defendant had a qualifying prior conviction under the laws mentioned above was, in the Fourth Circuit, determined under the framework set out in United States v. Harp, 406 F.3d 242 (4th Cir. 2005). Under Harp, a prior offense was “punishable” by imprisonment for more than one year if the hypothetical worst-case defendant could have received a maximum sentence over 12 months. Following that approach, under the North Carolina felony sentencing grid as it existed back then, all North Carolina felonies would qualify as federal felonies: the maximum sentence for even a Class I felony was 15 months if you used the aggravated range and assumed the defendant to be Prior Record Level VI.
A new hope? After bouncing back and forth between an appellate panel and the Supreme Court, the Fourth Circuit held en banc in United States v. Simmons that the Harp rule could not survive intervening case law from the Supreme Court (Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and United States v. Rodriquez, 553 U.S. 377 (2008), in particular). Instead of looking at how the hypothetical worst-case defendant could have been sentenced, the proper way to evaluate the seriousness of a defendant’s prior offenses is to consider the punishment that the particular defendant could have received for the crime, based on his or her actual prior record level and whether or not aggravating factors had been alleged.
With that rule in place, Jason Simmons’ prior North Carolina Class I felony conviction did not trigger the federal sentence enhancement under the Controlled Substances Act. Because he was Prior Record Level I and no aggravating factors were alleged, the maximum punishment for his offense was—under the grid as it existed back then—a mere 8 months. Under that new approach, many prior North Carolina “felonies” (almost all Class I felonies and many Class H felonies) of many federal defendants ceased to be felonies for federal purposes.
Episode V. A few months after Simmons was decided, the Justice Reinvestment Act (JRA) came into effect. Among other things, the law changed the way low level felony sentences are served. For offenses committed on or after December 1, 2011, all felons receive nine months of post-release supervision. And to accommodate that post-release supervision, all felony maximum sentences were inflated by 9 months (see this video post for an explanation of how post-release supervision works). Under the post-12/1/2011 grid, the shortest possible maximum sentence for any felony—regardless of prior record level—is 13 months.
That brings us to United States v. Barlow. In Barlow, the defendant pled guilty in federal court to possession of a firearm as a felon. His status as a felon was based on his prior North Carolina Class H felony convictions. On appeal, he argued that those felonies were not felonies for federal purposes in light of Simmons.
The Fourth Circuit disagreed. That would have been true before Justice Reinvestment, the court noted. As a Prior Record Level II defendant with no aggravating factors alleged, the longest permissible maximum sentence for Barlow’s Class H felonies would have been 10 months—if they would have been committed before December 1, 2011. But they weren’t. They were committed in 2012, and thus subject to the inflated maximum sentences set out in the post-JRA grid. After Justice Reinvestment, the highest permissible maximum for him was 19 months—well in excess of a year.
Barlow argued that the “extra” nine months built into his maximum sentence were not for “imprisonment,” but were rather focused on “supervision.” Moreover, any further imprisonment that might follow a revocation of PRS would be based on “some second, post-offense and post-imprisonment act.” Slip op. at 12. The Fourth Circuited rejected his arguments. Under North Carolina’s approach to post-release supervision (which is distinctively different from federal supervised release) the extra time built into the maximum is in place from the outset, ready to be activated in response to a violation. Not all defendants will serve it (those who succeed on PRS will not), but it’s there—and it thus counts when determining by how many months an offense is punishable. That being the case, “North Carolina law now exposes felons to terms of imprisonment exceeding one year.” Id. at 14. (To be clear, I understand the court to be talking about prior felonies committed on or after December 1, 2011. Many older priors still are not federal felonies under Simmons.)
I have been asked over the years whether the JRA’s maximum sentence inflation was an intentional effort by the General Assembly to legislatively overturn Simmons. I don’t recall any discussion of the issue. And more importantly, the timing doesn’t work out. Though it says in Barlow that the legislature enacted the JRA “after issuance of our August 17, 2011 opinion in Simmons,” in fact the legislature was done with the bill on June 16, 2011, and the governor signed it into law on June 23, 2011. The eventual Barlow effect was, I think, an unintended consequence.
Barlow may not be the last chapter in the saga. There are additional issues to be resolved with respect to immigration law, for example. So stay tuned. Of course, if we get all the way to Episode VII, my nerdy prediction is that it will be exactly like Episode IV.