The Statewide Misdemeanant Confinement Program took a hit this week in the court of appeals. In Richmond County Board of Education v. Cowell, about half of the money that comes into the program fund—the $50 fee for anyone found responsible for an improper equipment violation—was deemed to be punitive. Under the North Carolina Constitution, the money must therefore go to the public schools. Continue reading
Tag Archives: justice reinvestment
Come December 1, dips will be the new dunks for Structured Sentencing misdemeanants. Continue reading →
Sentencing Whiteboard: A Typical Felony Probation Case after Justice Reinvestment
What happens when a low-level felon serves a split and then gets quick-dipped, dunked, and eventually revoked? Today’s video post walks through a case like that from start to finish, including many of the jail credit wrinkles that have emerged since 2011. Long story short: things have gotten complicated. I hope you’ll take a look.
New Probation CRV Centers Open
Have you ever eaten cake decorated with the name of a prison facility? I hadn’t until a few weeks ago, when I attended the ribbon cutting ceremony for the Division of Adult Correction’s new CRV Center in Robeson County. I’m glad I made the trip down to Lumberton—not just because of the cake (which turned out to be pretty good), but also because of what I learned about DAC’s vision for its new form of confinement for probation violators. Today’s post is intended to pass some of that information along to the judges and prosecutors who will send probationers to the CRV centers, and to the defense lawyers who will advise their clients about what to expect there. Continue reading →
I’m a little jet-lagged today. I got back home to Durham early this morning after a long flight. I was attending the Justice Reinvestment National Summit . . . in San Diego. Poor baby! Suffice it to say, the winter weather that gripped the East Coast this week did not extend to Southern California. I won’t lie, it was beautiful. But I promise the lovely setting did not stand in the way of a productive gathering. I want to use today’s post to offer a few reflections on the conference. Continue reading →
My next few posts will discuss this session’s legislative changes related to sentencing and corrections. Today’s post covers some pending changes related to confinement in response to violation (CRV, sometimes referred to as a “dunk”).
CRV is incarceration ordered in response to a technical violation of probation—meaning a violation other than a new crime or absconding. The CRV concept was created in 2011 as a centerpiece of the Justice Reinvestment Act. Drafters of that legislation noted that revoked probationers made up a big portion—over half—of North Carolina’s prison population. How to reduce that population? Change the law so that technical violators can be locked up for no more than 90 days. G.S. 15A-1344(d2).
There are many technical details associated with CRV—where it is served, how it works when a person is on probation for multiple convictions, and how jail credit gets applied to it, among others. I tried to address some of those issues in the FAQ post here. The CRV law has been amended multiple times since 2011 to clarify various things about it. In 2012: to remove the apparent requirement of a “terminal dunk” in short misdemeanor cases. In 2013: to make clear that CRV confinement must be served in one big chunk, not on weekends or other noncontinuous intervals.
That brings us to the changes for 2014, which relate to the rules for applying jail credit to a CRV. Under existing G.S. 15A-1344(d2), the rule for felonies and misdemeanors alike is that credit for any time spent awaiting a violation hearing at which a CRV is ordered must first be applied to the CRV. For example, if a person was held in jail for 20 days in advance of a violation hearing at which a 90-day felony CRV is ordered, the judge is required under existing law to credit the 20 days to the CRV, and the person will serve only 70 additional days. That prehearing credit cannot be “banked” to be applied only in the event of a later revocation. The law never said anything about whether other jail credit, such as pretrial confinement or time spent at DART-Cherry, could be applied to a later-imposed term of CRV, but that frequently happens in practice.
That crediting of time—especially the gathering up of credits beyond the mandatorily-credited prehearing confinement—was frustrating the Division of Adult Correction’s plan for CRV periods by making them too short. With credits applied, the average length of a felony CRV is around 75 days. And that is apparently not enough time for CRV to be the program-based behavior modification that DAC envisioned. They were hoping for a full three months to allow the offender to complete a tailored curriculum involving cognitive behavioral intervention, substance abuse treatment, and other programming as appropriate.
And so DAC sought and obtained a change to the law. A provision in the budget bill (section 16C.8.(a) of S.L. 2014-100) amends G.S. 15A-1344(d2) to provide that the 90-day period of CRV ordered for a felony “shall not be reduced by credit for time already served in the case.” Instead, “[a]ny such credit shall . . . be applied to the suspended sentence”—which means it will only be applied if the offender ever gets revoked. There’s nothing inherently wrong with that; it happens to every probationer with pretrial jail credit who completes probation without getting revoked. But it is a 180-degree turn from the original CRV rule, which was designed to cap the total incarceration (pre- and post-hearing) for a technical violation at 90 days.
For misdemeanors, the revised rule is different. In fact, the revised rule for misdemeanor CRV is that there is no rule. Amended G.S. 15A-1344(d2) neither requires nor forbids the crediting of any sort of confinement (pretrial or prehearing), giving the judge apparent flexibility to do what he or she would like. The change was made in recognition of the fact that for most misdemeanor probationers, the first CRV usually winds up being a “terminal” one, either because it uses up the entire suspended sentence or because the judge orders probation terminated upon its completion.
This change to G.S. 15A-1344(d2) is effective October 1, 2014, and applicable to probation violations occurring on or after that date. I read that applicability clause to refer to the date of the defendant’s offending behavior, not to the date of the violation hearing. If an offender is before the court for a string of technical violations that cross that effective-date threshold, the court should take care to note the particular violation(s) to which it is responding, and apply the appropriate credit rule accordingly.
To the extent that the change disadvantages a probationer by limiting the judge’s authority to apply credit, there may be some argument that it violates the Ex Post Facto Clause. On the other hand, if one views the suspended sentence as setting the total punishment in a given case, a change to the manner in which the time is served may not register as an increase in the defendant’s exposure. After all, regardless of the technicalities of the credit rules, the judge must always see to it that the defendant’s total time behind bars does not exceed his or her suspended sentence.
Finally, these changes to the credit rules should be viewed in the context of DAC’s broader plan with respect to CRV. For example, the Division has legislative approval to create two prison facilities devoted exclusively to CRV inmates—the “treatment and behavior modification facilities” mentioned in section 16C.10 of the budget. For men, a western facility in Burke County is on track to open in November, while an eastern facility in Robeson County should come online early next year. The plan for women is still under development. These facilities will apparently have a unique approach to staffing and security designed to facilitate the programmatic interventions described above—which CRV offenders will, after October 1, have a full 90 days to complete.
Justice Reinvestment on the Ground
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.
Spring Break Sentencing Reading List
I was on spring break last week, which meant I had lots of time for uninterrupted reading while my kids entertained themselves at the pool. Okay, maybe not. Despite being on the go, I made time to read three new publications from the North Carolina Sentencing and Policy Advisory Commission. They are well worth a look to anyone who reads this blog.
The first publication is the annual Structured Sentencing Statistical Report for Felonies and Misdemeanors (FY 2012/13). I look forward to it each spring in the same way I look forward to pitchers and catchers reporting to spring training. Like last year’s report (which I reviewed here), it’s chock full of enough data to keep Bill James busy.
This year’s installment is especially interesting in that it’s the first report for which a majority of the sentences covered (64 percent of felonies and 82 percent of misdemeanors) have offense dates after December 1, 2011, and are thus governed by the post–Justice Reinvestment Act sentencing laws. It’s interesting to see what has changed under the new law, and what hasn’t. For example, the dispositional slash line for felonies (percent Active/Intermediate/Community) is 39/32/29, which is somewhat of a departure from last year’s 41/41/18. Some people (including me, to be honest) had thought the percentage of Active sentences might increase in light of the substantial limits on judges’ authority to revoke probation, on the theory that judges might be less inclined to put some defendants on probation if they couldn’t get them off probation. But it looks like that didn’t happen.
Other items of note:
- The sentencing range breakdown (percent presumptive/mitigated/aggravated) was 69/27/4, almost identical to last year’s 68/27/5.
- 150 sentences were entered under the 2011 habitual breaking and entering law.
- 463 drug trafficking sentences were entered, a substantial decline from 543 the prior year.
- The firearm/deadly weapon enhancement set out in G.S. 15A-1340.16A was not used a single time.
- A high percentage of habitual felon sentences continue to be sentenced in the mitigated range, despite the law’s transition in 2011 from automatic Class C status to a four-class enhancement.
- 77 sentences included an Advanced Supervised Release (ASR) date, although the report notes that due to recordkeeping limitations in the early part of the data collection period, the actual number of ASR sentences was probably a good bit higher.
There are lots of other interesting data that range from interesting trivia (months with the most and least convictions? August and June, respectively) to source material for effective advocacy (Appendix D, Table 1 breaks down the type of punishment and average sentence length by crime type and offense for the state’s most commonly charged crimes).
The second publication is the Commission’s Correctional Program Evaluation: Offenders Placed on Probation or Released from Prison in FY 2010/11, better known as the annual recidivism report. This year’s report examines the recidivism outcomes of the 57,535 offenders released from prison or placed on probation in fiscal year 2010/11. The report defines recidivism as an arrest, conviction, and incarceration during the two years after being released from prison or placed on probation.
To continue our theme of sentencing sabermetrics, the overall recidivism slash line (percentage arrested/convicted/incarcerated within two years) for all offenders was 40.7/21.3/21.9. Perhaps unsurprisingly, defendants sentenced to probation have slightly lower overall recidivism rates (36.8/18.6/22.2) than those sentenced to prison (48.6/26.6/21.2). Habitual felons had rates (48.1/21.9/26.0) fairly similar to other felons, while sex offenders had substantially lower rates of arrest and conviction than felons in general (27.0/13.9/26.3). Rearrest rates for all offenders have risen over time, climbing from 31.2 percent in 1989 to 40.7 percent in 2010/11, but the report indicates that most of that increase is due to improved documentation technology and a greater number of fingerprinted misdemeanor arrests, rather than an increase in the actual number of arrests themselves.
The recidivism report also included an extended discussion of outcomes for probationers broken down by the risk and need level identified through Probation’s risk-needs assessment (RNA) process (described here). It appears that the RNA is predictive of probationer’s violation, revocation, and recidivism rates, which is good news for those who hope to focus limited correctional resources on those who need them most, based on the results of the RNA.
There’s a natural time lag in recidivism reports—you have to wait for a full two-year reporting period before you can measure the outcomes of a particular cohort of offenders. As a result, this year’s report looks at offenders sentenced under pre-JRA law. The 2016 report, based on a sample of offenders placed on probation or release from prison during FY 2012/13, will be the first to provide a more complete accounting of whether the JRA has met its recidivism reduction goals.
Speaking of Justice Reinvestment, the third and final publication of note is the Justice Reinvestment Act Implementation Evaluation Report. The report, prepared in response to legislative mandate, gives insight into how the JRA is playing out in practice through a combination of data, site visit reports, and a review of JRA-related policy changes made by the court and correctional systems. For example, the report gives a status update on the Department of Public Safety’s Treatment for Effective Community Supervision (TECS) program, the JRA’s answer to the former Criminal Justice Partnership Program (CJPP). As of February, TECS services were available in 88 counties, with service in all 100 counties projected to begin by July 2015. The report also gives an update on the Statewide Misdemeanant Confinement Program, future plans for management of offenders ordered to confinement in response to violation (CRV), use of delegated authority, as well as various changes in prosecutorial and plea negotiation practice under the revised habitual felon law, the new habitual breaking and entering law, ASR, and G.S. 90-96. If you don’t have time to read the whole thing, I recommend reviewing the Conclusions section beginning on page 47.
Jail Credit for CRVs
Today’s post is about a recurrent question related to jail credit for periods of confinement in response to violation (CRV). First, a 30-second refresher on the basics of CRV.
When a probationer commits a violation other than a new criminal offense or absconding, the court may order a period of confinement in response to violation. CRV is 90 days for a felon and up to 90 days for a misdemeanant. If a person is on probation for multiple offenses, CRV periods “shall run concurrently on all cases related to the violation.” G.S. 15A-1344(d2). After the defendant has received two CRV “strikes” in a particular case, he or she may be revoked for any subsequent violation. Any CRV periods served in the revoked cases “shall be credited pursuant to G.S. 15-196.1.” Id.
That brings us to today’s question. Suppose a defendant is on probation for three convictions with 8–19 month suspended sentences in each case, set to run consecutively in the event of revocation. Assume the conditions of probation are identical in all three cases. During his probation, the defendant commits a technical violation for which the court imposes a 90-day CRV in each case. As noted above, under G.S. 15A-1344(d2), these three CRV periods must be served concurrently. So the defendant serves 90 days in prison and returns to probation. How is that time credited if the defendant’s probation is later revoked?
It seems to me that the defendant must get 90 days of credit against each of the three sentences, for a total of 270 days. And I think that’s the case regardless of whether the sentences are run consecutively or concurrently upon revocation. The time was in fact served in each case, and no statute directs the court to disregard it when completing the revocation order in an individual case.
If that feels strange, it’s probably because it’s different from how we credit pretrial jail credit when a defendant is held on multiple charges. In that context, when a defendant winds up getting consecutive sentences, we do not multiply any shared credit for pretrial confinement by the number of consecutive sentences for which the defendant is imprisoned. That is so because G.S. 15-196.2 tells us not to multiply it. The reason for that rule is that when a judge winds up ordering consecutive sentences, we learn for the first time that the defendant has, to that point, been serving the only first sentence in the consecutive string, and that service of the second and subsequent sentences is yet to come. And so we credit the pretrial confinement only once.
Neither G.S. 15-196.2 nor the rationale behind it applies to CRV. First, G.S. 15A-1344(d2) makes no reference to the non-multiplication rule of G.S. 15-196.2; it says only that prior CRV periods shall be credited pursuant to G.S. 15-196.1. Second, unlike pretrial confinement, CRV is mandatorily and unmistakably concurrent from the get-go. Yes, the remainder of any activated sentences may wind up being served consecutively, but that does not trump the legislature’s command that any portion of the sentences served as CRV “shall run concurrently.”
I should note that not everyone agrees with me on this. I know some clerks will not credit CRV time against multiple cases, and I’ve certainly heard from judges, prosecutors, and probation officers who find that sort of double (or triple, as in my example above) counting of the time to be downright offensive. To be sure, crediting of the time in this way lessens the impact of any consecutive suspended sentences ordered by the court. But I don’t see how the law can be read to allow for the un-crediting of time actually served in each case, when the General Assembly has ordered that portion of it to be served concurrently.
The issue can be avoided. The court is never required to order CRV. If a defendant is on probation for multiple cases and violates probation in each of them, the court could order CRV in only one of the cases and use a different response in the others. There is a trade-off in the sense that the probationer does not accrue a CRV “strike” in the other cases. But it turns out that hardly anybody gets to his or her third CRV strike before probation ends. One of the following things almost always happens first: the period of probation expires or is terminated, the suspended sentence gets used up (especially in misdemeanor cases), or the probationer commits a new crime or absconds.
G.S. 90-96 Limbo
The Justice Reinvestment Act made conditional discharge under G.S. 90-96(a) mandatory for eligible, consenting defendants. The law was amended last year to make it discretionary again for offenses committed on or after December 1, 2013. S.L. 2013-210. But while it was mandatory, a lot of defendants were placed on probation under G.S. 90-96(a). Naturally, many of those cases have come to an end. The statute itself envisions two possible conclusions to a G.S. 90-96 case: failure and success.
A person fails his or her G.S. 90-96 probation by violating a condition of supervision. When that happens the court “may enter an adjudication of guilt and proceed as otherwise provided.” The court should use form AOC-CR-622 to find the violation and order entry of judgment for the defendant’s deferred conviction. Then it would enter judgment and sentence the defendant for the conviction using a regular judgment form (active or suspended, as the case may be). In general, violations of G.S. 90-96 probation are subject to the same procedures applicable to ordinary probation cases. See State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”).
A person succeeds on G.S. 90-96 probation by “fulfilling of the terms and conditions” of his or her probation. When that happens, the court “shall discharge [the defendant] and dismiss the proceedings against him.” G.S. 90-96(a). The discharge and dismissal is mandatory, but not automatic. The court must complete the top portion of form AOC-CR-622 to formally dismiss the conviction and discharge the defendant.
Sometimes a defendant will reach the end of his or her G.S. 90-96 probation without any allegation of violation, but the judge considering the discharge and dismissal may have information indicating that all of the terms and conditions of probation were not actually “fulfilled.” For example, the court may know that the defendant has not paid all the money he or she owed in the case, or that he or she has not completed the assigned course of treatment.
Can the court nonetheless enter the discharge and dismissal? Must the court do so?
I don’t think there’s a clear answer. To the extent that “general probation provisions” of Article 82 apply in G.S. 90-96 matters, it could be argued that the burden is on the State to prove noncompliance, and that fulfillment should be presumed in the absence of a violation. On the other hand, discharge and dismissal in a G.S. 90-96 case requires an affirmative order from the court that isn’t required to bring an ordinary probation case to a successful (from the defendant’s point of view) conclusion. I can understand a judge’s reluctance to order the conditions fulfilled if he or she knows they haven’t been. The problem with that view, however, is that it leaves the defendant in a perpetual middle ground not clearly contemplated by the statute itself.
An approach that may help avoid the issue is to schedule a review hearing near the end of the defendant’s period of supervision. (There is a space to schedule such a review on form AOC-CR-619A/B/C, the form used to place the person on G.S. 90-96 probation at the outset.) The hearing should be scheduled long enough before the case expires that there will be sufficient time to file a violation report on any perceived noncompliance, or to extend the probation as necessary to give the defendant time to complete any condition yet to be fulfilled. By reviewing the probation in this way the court will increase the chances that the case will end as a clear success or failure.