Next month the North Carolina Judicial College will sponsor a tour of four correctional facilities in western North Carolina. Continue reading
Tag Archives: prison
The chart available here summarizes the rules for the proper place of confinement for felonies, misdemeanors, and impaired driving. But additional questions come up from time to time that don’t fit neatly in a chart. Today’s post attempts to answer some of them. Continue reading →
What can a jail do when an inmate becomes unmanageably dangerous, or unmanageably vulnerable, or unmanageably sick? Or what about when so many people are arrested at once that the jail cannot house them all? In those situations, the jail may seek to have the inmate transferred to the state prison system through a safekeeping order. Continue reading →
Last year I posted a chart summarizing the proper place of confinement (jail, prison, or Statewide Misdemeanant Confinement Program) for various types of imprisonment. The chart covers active sentences, split sentences, CRVs, quick dips, and incarceration for nonpayment of a fine. One thing it does not explicitly cover, though, is the proper place of confinement for a sentence activated upon revocation of probation. In response to a flurry of questions, I’ll take that issue up today. Continue reading →
My choice of topic for today’s post may or may not have been influenced by the fact that I’m growing a beard. Reviews are mixed, ranging from nonspecific acknowledgment (“You have a beard!”) to good-natured derision (“Did you lose a bet?”). Jeff says I’m a pair of skinny jeans away from becoming a hipster. Kidding aside, today’s post is about the serious subject of whether prison officials must permit an inmate to grow a beard in accordance with his sincere religious beliefs. The Supreme Court held this week in Holt v. Hobbs that they must. Continue reading →
You know I love a chart. I’ve made sex offender charts, Justice Reinvestment charts, maximum sentence charts, and drug trafficking charts. You should see the charts I make for family vacations! Today’s post presents a new chart detailing the proper place of confinement for all sorts of incarceration that a court might order, either at sentencing or in response to a violation of probation. It is here.
The chart was prepared in response to some changes the General Assembly made to the place-of-confinement rules this year. S.L. 2014-100. Mainly, the legislature expanded the Statewide Misdemeanant Confinement Program (SMCP) to include all impaired drivers (as Shea described here) and all misdemeanor sentences in excess of 90 days (not just those from 91 to 180 days). The DWI changes become effective for sentences imposed on or after January 1, 2015. The non-DWI changes kick in for sentences imposed on or after October 1, which is when you could begin using the chart.
The legislation also changed some of the rules for special probation (a split sentence) imposed at sentencing, as set out in revised G.S. 15A-1351(a). Like the active-sentence changes described above, the main goal of the split sentence change is to shift misdemeanants from prison to jail. The technical details of the change are reflected in the chart. Curiously, the bill did not change the rules for a split sentence imposed as a modification of probation. G.S. 15A-1344(e). Some additional changes related to confinement in response to violation (CRV) and the proper place of confinement for a person’s failure to pay a fine wind up being largely technical in nature, again as reflected in the chart.
Finally, remember that these changes mostly apply to sentences imposed after a certain date. There are still thousands of probationers whose suspended sentences were entered under the old place-of-confinement rules. If those sentences are activated, they should, in general, be administered as entered. It will take a few years for all of the old-rule cases to work their way through the system, and jail and prison officials should not be surprised when they receive revoked probationers who could not be committed to their custody for offenses sentenced today.
Most people can get behind the idea that inmates should, if able, do some sort of work during their incarceration. By statute, “[i]t is declared to be the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them.” G.S. 148-26. Inmate labor comes in many forms: work by jail inmates to benefit the government (described here); work inside an institution to accrue earned time (described here); work on a community work crew (G.S. 148-32.2); work for Correction Enterprises (which makes some really nice furniture and other products that any North Carolina government employee or retiree may purchase up to $2,500 of per year, G.S. 148-132); and work release. Today’s post is about work release.
Work release is the temporary release of a sentenced inmate to work on a job in the free community, outside the jail or prison, for which the offender is paid by the outside employer. Lots of good things can happen when an inmate is able to participate in work release. The inmate may be able to keep his or her regular job during the term of imprisonment. The sheriff or the prison system may be able to recoup the costs of the prisoner’s keep from the work release earnings. Victims may receive restitution and the inmate’s dependents may receive support payments from work release earnings. And many studies (like this one, for example) have shown a link between work release and lower recidivism rates. Data from the North Carolina Sentencing and Policy Advisory Commission routinely show work release inmates as having a lower percentage of reincarceration within two years of release (16.2% for work release inmates, compared to 24.1% for all inmates released in fiscal year 2008/09, according to the 2012 recidivism report).
Unfortunately, the laws applicable to work release can be a little confusing.
Felonies. When a person is given an active sentence for a felony, the court may recommend work release. G.S. 15A-1351(f). This is merely a recommendation, but under G.S. 148-33.1, the Secretary of Public Safety “shall authorize immediate work-release privileges for any person serving a sentence not exceeding five years in the State prison system and for whom the presiding judge shall have recommended work release.” That requirement is subject to the caveats that the person must have suitable employment and that “custodial and correctional considerations would not be adverse to releasing the person without supervision in the free community.” G.S. 148-33.1(a). “Suitable employment” and “custodial and correctional considerations” are fleshed out in the prison policy on work release. The same policy document also notes that an inmate with a sentence in excess of five years is not eligible for work release until he or she is within three years of the maximum release date. E.0703(c)(1). There is no statute or rule governing court recommendations against work release, but my sense is that such recommendations are generally honored.
Misdemeanors. When a person is given an active sentence for a misdemeanor, the judge may recommend work release. With the consent of the defendant the judge may also order work release. G.S. 15A-1351(f). This mandatory order is an exception to the general separation-of-powers rule that a judge cannot require a custodian to administer a sentence in a particular way. If a judge orders work release for a misdemeanant, the sheriff is obliged to carry out the order—which is why such orders should not be entered without advance coordination between the judge, the lawyers, the sheriff or jail administrator, and, of course, the prospective work release employer. When work release is ordered for a misdemeanant, the order must include the date the work is to begin, the place of confinement, a provision that work release terminates if the offender loses his or her job, and a determination about the disbursement of earnings, as described below. G.S. 15A-1353(f).
Place of confinement. Sometimes a person’s prospective work-release job will not be convenient to his or her ordinary place of confinement. With that in mind, the prison system has authority to move inmates within the prison system to a more suitable facility, and to contract for the housing of work-release inmates in the county jails as provided in G.S. 148-22(a). When a misdemeanant is ordered to work release, the court may, notwithstanding any other provision of law, commit the defendant to a specific jail or prison facility in the county of the sentencing court to facilitate the arrangement. With prior consent the court may sentence the person to a jail or prison in another county. G.S. 15A-1352(d). (Note that this authority may be limited this year as part of a broader plan to remove misdemeanor offenders from the prison system. See Senate Bill 744, section 16C.1.(b).)
Probationers. In general, the court should not make any recommendation for work release at the time of sentencing when the defendant receives a suspended sentence and probation. Any such recommendation may be made at the time of revocation if the defendant’s probation is revoked. G.S. 148-33.1(i). It is a fairly common practice for a judge to order work release during a term of special probation (a split sentence), although there is no explicit statutory authorization for or prohibition against that. (The practice was noted without disapproval in State v. Stallings, 316 N.C. 535 (1986).) The General Statutes likewise do not spell out any rules for work release during a term of Confinement in Response to Violation, although it apparently is not allowed as a matter of policy for a CRV served in prison.
Money. An inmate’s work release earnings generally go to the custodian (DAC or the sheriff, as the case may be), who determines how the money will dispersed. The custodian or court, as appropriate, must determine an amount for things like travel expenses to and from work, child support, and money required to comply with any judgment rendered by the court. G.S. 148-33.1(f). A judge ordering work release should also set the amount to be deducted by the custodian for the costs of the prisoner’s keep. That amount should be based on the specific facility’s actual costs; it is not a per diem set by statewide statute or rule. For any prisoner ordered to an active sentence, the court shall consider recommending to the Secretary of Public Safety that restitution be made out of the defendant’s work release earnings. G.S. 15A-1340.36; 148-33.2.
Escape. If a person fails to return to prison from his or her work release assignment, it’s an escape—unless the person returns to confinement within 24 hours, as provided in G.S. 148-45.
Clearly work release requires some additional legwork and administrative wrangling. But given the benefits described above, it seems like it’s often worth the effort.
I have been getting many questions lately about the applicability and impact of the federal Prison Rape Elimination Act, or PREA. Specifically, people want to know the extent to which the law and its accompanying regulatory standards apply to local jails. This post provides some background on PREA and then discusses its applicability and enforceability.
PREA was passed in 2003. Pub. L. No. 108-79, 117 Stat. 972 (2003). Congressional findings included in the law conservatively estimated that 13 percent of the 2.1 million persons incarcerated in America’s prisons and jails have been sexually assaulted. Congress found that, among other things, sexual assaults against inmates traumatize victims, endanger public safety, increase recidivism, spread disease, and, ultimately, violate inmates’ Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment. 42 U.S.C. § 15601. The law created a commission to study the issue, and then directed the Attorney General to issue national standards for the detection, prevention, reduction, and punishment of prison rape. Those standards call for a zero-tolerance policy toward prison rape—though by law they are not to impose substantial additional costs on federal, state, or local authorities. 42 U.S.C. § 15607.
After a decade of study, research, and public comment, the Attorney General issued the final PREA standards on June 20, 2012, which made them effective August 20, 2012. 28 C.F.R. pt. 115. The standards applied to Federal Bureau of Prisons facilities immediately upon their adoption. State compliance, by contrast, is to be enforced indirectly through a grant incentive. Namely, a state will lose five percent of federal grant money it would otherwise receive for prison purposes unless its governor can certify each year that the State has adopted and is in full compliance with PREA standards. 42 U.S.C. § 15607(c). Even if not compliant, a state may avoid losing that cut of its grant money by certifying that it will be used to bring the state into compliance in future years. The audit cycle for state certification begins August 20, 2013, with the first gubernatorial certification reports due August 20, 2014. (A couple of the substantive standards have a delayed effective date, as I will discuss in my next post.)
Does PREA apply to local jails? Yes. The federal statute defines “prison” to include “any confinement facility of a Federal, State, or local government.” 42 U.S.C. § 15609(7). Correspondingly, the PREA standards impose requirements on “agencies,” which are defined as “the unit of a State, local, corporate, or nonprofit authority . . . with direct responsibility for the operation of any facility that confines inmates, detainees, or residents.” 28 C.F.R. § 115.5. With those definitions in place, PREA and its standards apply to all local jails.
But applicability is not the same as enforceability. As discussed above PREA is enforced on the states through the threat of grant reductions, and those grant reductions are triggered by the governor’s certification. The standards explicitly say that the governor’s certification applies only to “facilities under the operational control of the State’s executive branch.” 28 C.F.R. § 115.501(b). The certification must include “facilities operated by private entities on behalf of the State’s executive branch,” id., but it does not include local government entities that house state inmates. The Attorney General’s overview of the standards notes that omission, saying that the governor’s “certification, by its terms, does not encompass facilities under the operational control of counties, cities, or other municipalities.” 77 Fed. Reg. 37106, 37115. So, North Carolina’s locally-administered jails will not be directly included within the governor’s annual PREA certification.
Does that mean jails are off the hook when it comes to PREA? No.
First of all, it is possible that the General Assembly might require jails to comply with PREA as a matter of state law. Pending legislation, H 585, would direct the state prison system and all juvenile facilities to comply with PREA, plain and simple. Some prior versions of the bill have also required jails to comply, and some versions have not. The most recent version of the bill takes what appears to be a middle ground, proclaiming it to be the policy of the General Assembly that local jails “should comply” with PREA.
Regardless of how H 585 plays out, PREA may impact jails in several other ways.
Federal prisoners. Some North Carolina jails house federal inmates for the Federal Bureau of Prisons, the U.S. Marshals Service, or Immigration and Customs Enforcement. Those inmates are housed pursuant to contracts between the county and the United States. G.S. 162-34. PREA standards require that any agency “that contracts for the confinement of its inmates with private agencies or other entities, including other government agencies, shall in include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards.” 28 C.F.R. § 115.12 (emphasis added). The contract must provide for “monitoring to ensure that the contractor is complying with the PREA standards.” Id. I have already heard from a couple of sheriffs that BOP has discussed including a PREA-compliance clause in its contracts with the counties. PREA compliance may be worthwhile for jails that make a lot of money housing federal inmates.
Statewide Misdemeanant Confinement Program (SMCP). The SMCP, discussed in detail here, is a program through which counties may volunteer to house certain misdemeanor inmates. Counties contract with the Department of Public Safety to house SMCP inmates under G.S. 148-32.1. Like the contracts with the federal government described above, SMCP contracts are contracts for the confinement of an agency’s inmates, and thus appear to be required under § 115.12 to include a PREA-compliance clause in any new or renewed contract. Today, 50 of North Carolina’s 100 counties participate in the SMCP.
Accreditation. Some North Carolina jails are accredited by national organizations like the American Correctional Association. PREA says that no accrediting agency may receive federal grant funds unless it adopts accreditation standards consistent with the PREA standards. 42 U.S.C. § 15608. As a result, any jail that has or is seeking accreditation may wind up effectively having to comply with PREA as a part of the accreditation process.
Civil liability. Even if there is no direct financial penalty for a local jail that fails to comply with PREA, there is some concern that the federal standards may evolve into a standard of care in civil actions related to inmate sexual abuse. That is a legitimate concern, but jails should also bear in mind that compliance with the standards does not establish a safe harbor from any civil claim related to sexual abuse.
To conclude, even if there is no direct financial penalty to anyone for a jail’s failure to adopt the PREA standards, compliance may eventually be required (a) under potential state law, (b) as a matter of contract, (c) as part of the accreditation process, or (d) to minimize the risk of civil liability. Another possibility—not to be lost in all this technical discussion of federal regulations—is that a sheriff might decide to adopt the standards because he or she believes it is the right thing to do to protect the inmates and staff for whom he or she is responsible.
I’ve gone on for over 1,200 words on the applicability and enforcement of PREA without saying anything about the substance of the standards themselves. I’ll do that in my next post.
I read an article this morning from the Washington Post about how some inmates are using the online consumer review site Yelp to rate jails and prisons. It’s an interesting mix of good reviews (“[I]f you’re going to get arrested, do it in Arlington County”) and bad (“This was the worst experience of my life and I am a combat veteran from Iraq”). The article notes that sites like Yelp may be the only outlet for some inmates in light of the restrictive exhaustion requirements of the federal Prison Litigation Reform Act. Even among those who gave four- or five-star reviews, I suspect many of them would rather be home.
And that brings me to the real subject of today’s post, home leaves from prison. Raleigh news outlet WRAL reported last week that inmate Raymond Cook, convicted in 2011 of involuntary manslaughter, felony death by vehicle, and impaired driving for vehicle crash that killed a 20-year-old woman, has been receiving 48-hour passes to visit with his family. Mr. Cook received a 36–53 month sentence for the crime, giving him a projected release date of February 28, 2014. According to the article, Mr. Cook leaves prison during the week for a work release job at a pharmaceutical company and then gets weekend passes to go home “on a regular basis.” A corrections department spokesman said the practice was not unusual and that inmates in Cook’s custodial status can receive one 48-hour home leave and two 6-hour leaves each month.
Division of Adult Correction policy on home leaves states that inmates who have obtained the lowest possible custody level (Minimum Level III) and who have been infraction free for 90 days are eligible for home leaves when they come within 12 months of release. The inmate and his or her family must make a written request for the leave, which is reviewed and investigated by the facility superintendent. The superintendent is supposed to contact the local police chief and sheriff to inform them of the release. There is no express requirement in the policy for victim notification, although in this case the victim’s family had a right under G.S. 15A-836(a)(2) to be notified when Mr. Cook was assigned to a minimum custody unit, including a notification that such an assignment might include “work release or supervised leaves in the community.” The inmate must heed program guidelines during the leave, including no drinking and no driving.
The decision to offer home leaves is well within the discretion of the Secretary of Public Safety. Under G.S. 148-4, the Secretary can “extend the limits” of an inmate’s confinement and allow him or her to “leave the confines . . . unaccompanied” for all sorts of reasons, including job interviews, house hunting, attending funerals, maternity leave, and palliative care. Home leaves are not a subject of court control, but they are certainly something about which a judge could make a recommendation (favoring or opposing leaves) on a judgment form. My general sense is that prison officials work to accommodate court requests—to the extent permissible by law and within the scope of their own policy.