North Carolina Criminal Law NC Criminal Law

The Justice Reinvestment Act became law in 2011. S.L. 2011-192. Even before its initial effective date it was amended in 2011 by a technical corrections act. S.L. 2011-412. It was amended again by a clarifications act in 2012, making the changes described here.  S.L. 2012-188. Two weeks ago it was amended yet again, effective (in part) immediately when the governor signed it on June 12. S.L. 2013-101. Today’s post reviews the latest changes.

The most significant change in the law is an amendment to G.S. 15A-1344(d2) to make clear that periods of confinement in response to violation (CRV, or, as some people call them, dunks) must be served on “consecutive” days. The rule, which applies to both felonies and misdemeanors, was effective immediately on June 12. CRV is the confinement the judge may order for technical violations of probation other than a new criminal offense or absconding. With the change in place, “weekend” or other non-continuous dunks are not allowed.

In my opinion that was probably already the case. In light of State v. Miller, 205 N.C. App. 291 (2009), I had thought that a judge could not order non-continuous confinement without statutory authority to do so. See Markham, The North Carolina Justice Reinvestment Act 68 (2012). Regardless, the answer is now clear as a matter of statute: no weekend dunks. If you would like to arrange for probationary confinement to be served on non-continuous days, it can still be done as a split sentence. G.S. 15A-1351(a) (special probation ordered at sentencing); G.S. 15A-1344(e) (special probation ordered as a modification of probation). Notwithstanding persistent rumors to the contrary, the JRA did not repeal the court’s authority to order split sentences.

All of the other changes to the law are truly technical in nature.

• The “absconding” probation condition that was created in 2011, G.S. 15A-1343(b)(3a), was amended so that it no longer applies to unsupervised probationers. The change, effective June 12, has no real practical effect because unsupervised probationers had no supervision from which to abscond. Nevertheless, the absconding condition appears in the portion of the judgment forms applicable to unsupervised probationers, and those forms will not be amended until the fall. In the meantime, AOC legal counsel has advised that “judges who wish to enter probationary judgments in strict compliance with the letter of the statute . . . simply will need to strike through that condition for unsupervised judgments.” I agree.
• The act removed a provision in G.S. 15-205 requiring probation officers to take supervised probationers on a prison tour during their first 30 days of supervision. A related provision was removed from G.S. 15A-1343 in 2011.
• The act repealed G.S. 143B-1159, which had required the North Carolina Sentencing and Policy Advisory Commission to do an independent biennial recidivism report on offenders accessing programs funded through the Treatment for Effective Community Supervision (TECS) program. A provision in the still-pending budget bill (section 16C.12) would have the Division of Adult Correction—which administers TECS—study itself in that regard.
• The act repealed G.S. 15A-1368.4(e)(14), the statutory condition of post-release supervision referencing “intensive” supervision. (The JRA repealed intensive probation but left intensive post-release supervision in place.) That repeal was effective immediately on June 12.
• Finally, the act corrects three mathematical errors in G.S. 15A-1340.17(e), better known as the back of the felony sentencing grid. The changes are minor, but will nonetheless require the issuance of a new felony sentencing grid this fall. The revised grid is effective for offenses committed on or after October 1, 2013. A separate bill, House Bill 92, would amend the Class A felony line of the sentencing grid to reflect the possibility of a life with parole sentence for a youthful defendant convicted of first-degree murder under G.S. 15A-1340.19B, enacted last year as discussed here.

I generally refrain from discussing pending legislation, but this post seems a suitable place to note another bill related to Justice Reinvestment that is poised to become law. House Bill 641, which has been ratified and presented to the governor for signature, would roll back what turned out to be one of the more complicated aspects of Justice Reinvestment: mandatory G.S. 90-96. The proposed law would return G.S. 90-96(a) to discretionary status in cases where the court, with the agreement of the district attorney, determines that the defendant is “inappropriate for a conditional discharge for factors related to the offense.” The change would be effective for offenses committed on or after December 1, 2013.