Before 2011, post-release supervision (PRS) was a bit of a novelty. Back then, only Class B1–E felons received PRS, and they account for only 15 percent of all felons. For offenses committed on and after December 1, 2011, the Justice Reinvestment Act amended the law to require post-release supervision for all felons who serve active time, regardless of offense class. As a result, there are now close to 10,000 post-release supervisees in North Carolina. More offenders means more questions. And one of the most common questions is what role, if any, the courts have in the administration of post-release supervision. The answer: very little. Continue reading
Tag Archives: PRS
I get a lot of mail from inmates. Lately, many of them have written to express their surprise upon being told by prison officials—for the first time—that they will have to complete a term of post-release supervision when they get out of prison. Sex offenders—especially Class F–I sex offenders, including those convicted of indecent liberties—are very surprised to learn that they will be on PRS for five years. Is it a problem that nobody mentioned PRS earlier? Continue reading →
Post-release supervision used to be relatively rare. Before 2011, only Class B1–E felons received PRS, and they accounted for only about 15 percent of all felons. Now that Class F–I felons also get PRS, the number of people under supervision is surging. Some of them get into trouble. This post looks at some of the increasingly common questions that come up when a post-release supervisee is charged with and eventually convicted of a new crime. Continue reading →
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.
Today’s post explains the “single sentence rule” of G.S. 15A-1354(b), the law that tells the prison system how to administer consecutive felony sentences. Knowing the rule is essential to figuring out the release date and post-release supervision term for a defendant who receives consecutive sentences.
The video is longer than I would generally like for these things to be, but it takes a little time to spell out the full rule. One thing it does not address is the related question of whether a judge should take the single sentence rule into account when advising a defendant of the maximum possible sentence for his or her convictions. Jessie discussed that issue here.
These days, you can find an online instructional video for pretty much anything. Cooking techniques, auto repair, differential calculus. Why not criminal sentencing? Today’s post is my first attempt at a microlecture on a discrete sentencing topic: Understanding how minimum and maximum sentences work for Class F–I felonies. You can view the video here. I’ll cover Class B1–E felonies in a subsequent installment, and maybe other topics, too, if you find this to be a helpful format. Let me know!
Update: I created a new version of this module using a program that allows me to export it to YouTube. Future modules will be posted on the same channel. You can view the revised video below.
Today’s post picks up where my last post left off, with answers (my answers, at least) to more frequently asked questions about post-release supervision.
What will life on PRS be like? It will be a lot like probation—which is something to keep in mind if the defendant requested an active sentence to avoid probation. The conditions of supervision will be set by the Post-Release Supervision and Parole Commission, not by the court. Every supervisee will be subject to a condition that he or she not commit another crime. G.S. 15A-1368.4(b). The Commission may add other conditions it believes are “reasonably necessary to ensure that the supervisee will lead a law-abiding life or to assist the supervisee to do so.” G.S. 15A-1368.4(d) and (e) set out appropriate reintegrative and controlling conditions, respectively. They include things like having a job, completing treatment, not using drugs, paying court costs, and submitting to warrantless searches by a post-release supervision officer. (Unlike probation, for post-release supervision there is no statutory provision for warrantless searches by a law enforcement officer.) Special conditions apply to sex offenders. G.S. 15A-1368.4(b1).
For what types of violations can I be revoked? As described in this prior post summarizing the PRS violation hearing process, the Justice Reinvestment Act limited the Commission’s authority to revoke PRS in much the same way that it limited judges’ authority to revoke probation. PRS may be fully revoked only for a new criminal offense or absconding, or for any violation committed by a person under supervision for a reportable sex crime. G.S. 15A-1368.3(c)(1). For all other violations, the supervisee may be reimprisoned for three months, and then re-released onto PRS. (DAC and the Commission sometimes refer to those 3-month reimprisonment stints as “CRV,” though that statutory terminology applies only to imprisonment for technical violations of probation.) Reimprisonment tolls the term of supervised release. Id. For example, if a defendant violates PRS 10 months into a 12-month term of supervision and is reimprisoned for three months, he comes out of prison with 2 months remaining on the term of supervision. Time does not run on the supervision period while he is behind bars. However, once the defendant has served his entire maximum term of imprisonment, the sentence is considered terminated, G.S. 15A-1368.2(f), and there is no further release to supervision, G.S. 15A-1368.3(c)(1).
If my PRS is revoked, do I get credit against my remaining term of imprisonment for the time I spent under supervision? No. Unlike some other states, North Carolina does not allow credit for what is sometimes called “street time,” the time a person a person spent under supervision in the community. To the contrary, G.S. 15A-1368.3(c)(2) expressly provides that a supervisee “shall not receive any credit for days on post-release supervision against the maximum term of imprisonment imposed by the court . . . .” So, if you have a 9-month term of PRS with 9 months of imprisonment hanging over your head, and you violate and get revoked in month 8, you go back to prison for 9 months, not 1 month.
How does PRS work if I am serving multiple sentences? In general, a person convicted of multiple felony offenses will serve only one period of post-release supervision upon his or her release. If the sentences were set to run consecutively, one PRS term will remain at the end of the aggregate term by virtue of the single sentence rule, described in detail here. The length of that sole PRS term will be dictated by the longest term applicable to the defendant’s multiple convictions (9, 12, or 60 months, depending on the offense class and whether the defendant is a sex offender). Occasionally a defendant will be subject to concurrent sentences that include a mix of non-PRS (i.e., pre-2011) and PRS-eligible felonies, and for which the term of imprisonment for the non-PRS sentence actually extends beyond the PRS-eligible one(s). If that happens, DAC and the Commission will hold the PRS term for the PRS-eligible offense in abeyance until the defendant is actually released from prison on the non-PRS case. Once a person is on PRS, the PRS term generally runs concurrently with any other federal or State prison, jail, probation, or parole term to which the person becomes subject. G.S. 15A-1368.5.
What is the deal with PRS for drug trafficking crimes committed between December 1, 2011 and November 30, 2012? When the General Assembly amended the felony sentencing grid in 2011, increasing felony maximum sentences to account for the expansion of post-release supervision, it did not increase the statutory terms of imprisonment for drug trafficking set out in G.S. 90-95(h). The legislature fixed the problem for offenses committed on or after December 1, 2012, but when I wrote about the issue here in 2012, I was unsure how DAC and the Commission would treat cases falling in the gap year. I have since learned that if there is not a full complement of “extra” time built into the maximum sentence for PRS (9 extra months for Class F, G, and H trafficking, and 12 extra months for Class C, D, and E trafficking), then they will not give the defendant any post-release supervision at all. I have heard that some judges have addressed the issue by adding extra time to the maximum themselves, but I don’t know of any legal basis for doing that. The applicable statute for that time period prescribed a particular sentence, and I think that’s what the court is obliged to use, even if it makes administration of PRS difficult. I would be interested to hear from readers with practical experience with cases from this time frame to learn more about how things played out.
There are almost 7,000 people on post-release supervision in North Carolina today. That’s up from around 2,000 in 2011, before the law was changed to require post-release supervision for all felonies. As the PRS census increases, so do the questions. Today’s post addresses a few frequently asked questions about post-release supervision, presented from the defendant’s point of view.
Do I have to do post-release supervision? It depends on the date and class of the offense. Sentences for defendants convicted of Class B1–E felony offenses committed on or after October 1, 1994, and any felony committed on or after December 1, 2011, include time for post-release supervision. Defendants who receive active sentences in those date ranges necessarily will be released onto post-release supervision at the conclusion of their active time. Defendants sentenced to probation initially will do PRS only if their probation is revoked.
How long is my term of post-release supervision? Again, it depends on the date and class of offense, and also whether or not the crime requires registration as a sex offender. The following summary is drawn from G.S. 15A-1368.2(c).
Offenses Committed before 12/1/11
- Class F-I felonies: No PRS
- Class B1-E felonies: 9 months PRS
- Class B1-E sex crime: 5 years PRS
Offenses Committed on or after 12/1/11
- Class F-I felonies: 9 months PRS
- Class B1-E felonies: 12 months PRS
- Any felony sex crime: 5 years PRS
Can I refuse PRS and just serve out the remaining term of imprisonment? No. G.S. 15A-1368.2(b). And a sex offender inmate who willfully refuses to accept PRS can be held in contempt and imprisoned for the refusal, with that imprisonment not counting for credit against the remaining term of imprisonment for the underlying sex crime. Id. (described in this prior post).
Nobody mentioned anything about PRS when I was sentenced, and there’s nothing about it on my judgment. Do I still have to do it? Probably. There is no statutory requirement that a defendant be advised of a term of post-release supervision as a consequence of a guilty plea. G.S. 15A-1022 requires only that the defendant be advised of the maximum possible sentence for the charge. By contrast, federal procedural rules require the judge accepting a guilty plea to advise the defendant of the “maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed. R. Crim. Proc. Rule 11(b)(1)(H). Other states have similar rules. E.g. Ohio R.C. 2943.032.
Could the failure to advise about PRS raise a constitutional issue regarding whether the defendant’s plea was knowing, voluntary, and intelligent? Maybe. Constitutionally, a defendant must be made fully aware of the direct consequences of his or her plea, which are those that have a “definite, immediate and largely automatic effect on the range of the defendant’s punishment.” State v. Bozeman, 115 N.C. App. 658, 661 (1994). See generally Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual (Vol. 2, Trial), at 65. PRS is mandatory, and thus pretty clearly “direct” (unlike parole eligibility, which is something upon which a defendant need not be advised, State v. Daniels, 114 N.C. App. 501 (1994)). However, when the term of PRS supervision is no longer than the extra time built into the defendant’s maximum sentence (generally 9 months for a Class F–I felon or 12 months for a Class B1–E felon), the judge’s advice about the maximum term of imprisonment may be all that is required. Though qualitatively different from imprisonment, the PRS supervision period will not extend beyond the duration of the advised-upon maximum, because the defendant will automatically be released that same number of months before attaining the maximum. G.S. 15A-1368.2(a). So in some sense the defendant has been advised about the outermost bounds of the punishment.
The type of defendant for whom the failure to advise about PRS seems most troubling is a Class F–I sex offender, who has only 9 extra months of imprisonment built into his or her maximum sentence, but a 5-year term of supervised release. G.S. 15A-1368.2(c). A lack of information about that lengthy, mandatory term of supervision (which extends over four years beyond the maximum term of imprisonment) could, perhaps, call the validity of a guilty plea into question. I’m not aware of any North Carolina case law, but when the issue has come up in other states, it generally has been resolved in the defendant’s favor. See People v. Catu, 825 N.E.2d 1081 (N.Y. 2005) (“Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction.”); State v. Johnson, 864 A.2d 400 (N.J. 2005) (vacating a plea when the trial court failed to advise about a mandatory parole period); Helms v. State, 281 P.3d 180 (Kan. Ct. App. 2012) (unpublished) (setting aside a plea when the trial court did not tell the defendant about mandatory postrelease supervision when entering his plea).