North Carolina Criminal Law NC Criminal Law

Under existing law, only Class B1 through E felonies get post-release supervision (PRS). They are released from prison “on the date equivalent to [their] maximum imposed prison term less nine months, less any earned time,” G.S. 15A-1368.2(a), and their period of supervision in the community is generally 9 months. For sex offenders, period of supervision is 5 years. G.S. 15A-1368.2(c). If a post-release supervisee violates the conditions of supervision, the Post-Release Supervision and Parole Commission (Parole Commission) can revoke PRS and place the offender back in prison “up to the time remaining on his maximum imposed term”—which will, of course, be 9 months, because that’s how much time he had remaining on his sentence when he was released. G.S. 15A-1368.3(c)(1).

As part of the Justice Reinvestment initiative, analysts from the Council of State Government (CSG) reviewed criminal justice data from North Carolina and made recommendations for how our system could be improved. One of their findings (set out in the reports available here) was that the vast majority of inmates leave DOC with no supervision in the community, and that those inmates tend to have a higher re-arrest rate than those released to post-release supervision. In response, the CSG group recommended changing the law so that all felons would have supervision in the community upon release. By way of background, the North Carolina Sentencing and Policy Advisory Commission has analyzed this issue in detail for many years, most thoroughly in its 2008 recidivism report (see pp. 53–74). When it controlled for other factors (such as offenders’ personal characteristics, risk level, and criminal history), the Sentencing Commission has found no statistically significant difference in re-arrest rates between prisoners with PRS and those without.

Based on the CSG recommendations, the Justice Reinvestment Act (JRA), S.L. 2011-192, expands the post-release supervision law so that it covers all felons. The change is effective for offenses committed on or after December 1, 2011. For Class B1–E felons, the PRS period (and the underlying maximum sentence) is extended by three months, bringing the total period of supervision for those offenders to 12 months. For Class F–I felons, a new 9-month PRS period is added, and maximum sentences for those crimes are all increased by an equivalent 9 months. So, what used to be a 4–5 month sentence, for example, will now be a 4–14 month sentence, with the offender getting out of prison 9 months before attaining his or maximum to go on PRS.

The JRA also makes a corresponding change to G.S. 15A-1354(b)—the statutory home of DOC’s “single sentence rule,” discussed here—to provide that when a person serves more than one felony sentence, he or she serves only one period of post-release supervision at the end of the aggregate maximum term. Duplicate PRS time, which is built in to each maximum term, gets subtracted out: 12 months for second and subsequent Class B1–E felonies, and 9 months for second and subsequent Class F–I felonies. (I read “second and subsequent” in the amended law to refer to all of the defendant’s felonies, regardless of offense class. For instance, I think you would subtract 9 months from the aggregate maximum for even the first Class F–I felony if the defendant were also convicted of a Class B1–E felony.)

There’s a strangeness that seems likely to arise when you apply PRS to such short sentences. Under existing law, there are only two cells on the sentencing grid (Class E, Prior Record Levels I and II) where an offender can start a sentence on probation and wind up on post-release supervision. (It might also happen for offenders who receive extraordinary mitigation under G.S. 15A-1340.13(g) and a few others, but those are pretty rare.) Every other PRS-eligible cell on the grid is “A” (active) only. Under the new law, many offenders will get probation for low-level felonies, and some portion of those—about a third, historically, although probably less in light of the JRA’s new limitations on a judge’s authority to revoke probation—will have their probation revoked. If the offender has any appreciable credit against his or her suspended sentence (be it from pretrial confinement, split sentence confinement time, or 90-day confinement in response to a technical [i.e., non–new crime, non-absconding] violation under new G.S. 15A-1344(d2)), he will soon be within 9 months of attaining his maximum and thus due for release on post-release supervision.

An example might be helpful to illustrate that point. And let’s use an example from one of the most-used cells on the sentencing grid: Class H, Level I (about 10 percent of all felony convictions fall there—over 3,000 convictions last year). Let’s say the defendant is sentenced in the presumptive range to 5–15 months, suspended for 36 months. Suppose over the course of his probation period he is ordered to complete two 90-day confinement periods in response to technical violations under new G.S. 15A-1344(d2). Upon the third violation the court would be empowered to fully revoke his probation, but at that point he is already within 9 months of his maximum sentence—and so it’s time to be released onto post-release supervision and the defendant is effectively revocation-proof. If the defendant had any other jail credit, or if DOC allows offenders to accrue earned time during 90-day confinement periods, that transition point might happen even sooner. I’m not sure how the Department of Correction will implement that.

Once the offender is on PRS the Parole Commission becomes the controlling authority over the case, but the JRA also made changes to the Commission’s authority to respond to violations of PRS. Similar to the restrictions on courts’ authority to respond to probation violations, the law provides that the Commission may only fully revoke PRS for offenders who commit a new crime, who abscond, or who are under supervision for a reportable sex crime. The Parole Commission can respond to other violations by returning the offender to prison for three months, after which he or she must be released back onto supervision. Supervisees can be returned to prison for two additional three-month stints, after which Class B1–E supervisees may be returned to prison up to the time remaining on their maximum imposed term.

A final quirk of the changes to PRS made by the JRA is that the law adds time to all the maximum felony sentences on the sentencing grid to account for defendants’ earlier release onto PRS, but it does not add any time onto the maximums for drug trafficking sentences in G.S. 90-95(h). That omission is most notable for Class G and Class H trafficking crimes, where the gap between the minimum and maximum terms is pretty small. With the new PRS rules in place, a Class H trafficker with a 25–30 month sentence will be due for release on PRS at 21 months (that’s the maximum less 9 months), which is well before the inmate will have served his or her minimum.

The JRA is not the only new law that affects post-release supervision. My next post will consider some additional changes related to sex offenders and impaired drivers.