North Carolina Criminal Law NC Criminal Law

With Thanksgiving tomorrow, today’s post will be the last of the week. That means it is the last post before December 1, when another batch of new laws comes into effect. Perhaps most notable among them is the new rule limiting punishment for a Class 3 misdemeanor to a fine only for defendants with three or fewer prior convictions. G.S. 15A-1340.23(d). Jeff discussed that change here, and additional School of Government resources are forthcoming. The North Carolina Sentencing and Policy Advisory Commission recently posted the revised version of the misdemeanor sentencing grid here.

Speaking of the Sentencing Commission, I recently participated in the annual meeting of that body’s Forecasting Technical Advisory Group. The group advises the Commission staff in the preparation of its statutorily mandated—and famously accurate—prison population projections. We review all sorts of data in the process, including changes to the state population, juvenile justice trends, arrest rates, court filings, and, of course, sentencing and correctional data.

Two years into Justice Reinvestment, some interesting things are happening. Here is a collection of data highlights, some of which came from the forecasting meeting and some from other sources.

Prison population. The prison population is down dramatically. As of today there are 37,820 inmates in prison. The chart below shows the prison population by month over the past 10 years.

As you can see, the population is at its lowest level since 2006. You can also see that the decline in the population actually began before the JRA came into effect, probably for the reasons I discussed in this prior post. But the JRA certainly sharpened the decline, which was to be expected given the law’s limits on probation revocation authority and its transfer of certain misdemeanants from prison to the jails. Whatever the precise reason, the decline is substantial. And the state has responded by closing 16 prisons since 2009.

Probation revocation rate. The JRA limited judges’ authority to revoke probation to violations involving a new criminal offense, absconding, or probationers who have served two periods of confinement in response to violation for prior technical violations. That change was motivated by an observation that revoked probationers made up over half of the state’s prison population. The change has had its desired effect. Historically the probation revocation rate hovered around 35 percent. Today it’s in the low 20’s. You can see the decline in this chart, prepared by the Division of Adult Correction, which shows the ten-year trend for felony entries to prison.

As you can see, for most of the decade, the numbers of prison entries were roughly equally attributable to defendants coming to prison directly from court (active sentences, essentially) and revoked probationers. In 2011, the lines diverge, with direct entries from court increasing and the number of revoked probationers declining. The chart below captures the rate of the decline, showing the percentage change in the number of court-based and revocation-based entries compared with the previous fiscal year.

Again, the court-based entries jump from 2011 to 2012, while revocations fall sharply. This is entirely expected given the change in the law governing revocation authority—especially given the initial confusion about what it means to abscond and what it means to commit a new criminal offense.

Misdemeanant confinement. Another obvious reason for the decline in the prison population is that many misdemeanants formerly housed in prison are now housed in the jails under the Statewide Misdemeanant Confinement Program. The latest report from the North Carolina Sheriffs’ Association shows an average program population of 690 inmates over the last month. That figure is a little lower than what may have been expected; when the JRA was passed, there were about 1,400 eligible misdemeanants in prison on any given day. Should the number increase, the program appears to have the capacity to manage it. Right now, 53 counties have volunteered beds to the program, yielding a capacity of 1,665 inmates.

Post-release supervision. The JRA changed the felony sentencing law so that all felons would receive post-release supervision upon their release from prison. Previously only Class B1–E felons received PRS, and because there aren’t many of them, there weren’t very many post-release supervisees. Projections prepared when the JRA was passed indicated that the population of post-release supervisees would climb quickly from around 2,000 supervisees to nearly 14,000 by 2015. Today, the state’s population of post-release supervisees and parolees stands at 6,405. So, it’s up, but perhaps not quite as far as expected. Remember that the change in the law only applied to offenses committed on or after December 1, 2011, so it takes a little time for eligible defendants to commit their crime, get convicted, finish an active term, and then be released.

Advanced Supervised Release (ASR). ASR, which allows certain defendants an early release from prison if they complete “risk reduction incentives” during their incarceration, is being used. Last I checked over 250 ASR sentences had been ordered.

Quick dips. The JRA gave probation officers authority to jail certain probationers for two or three days in response to a violation of probation through delegated authority—a so-called quick dip in the jail. After a somewhat slow start, officers are using that authority with increased frequency. According to the latest information I have approximately 450 dips have been imposed; about two-thirds of them were the three-day variety.

This is obviously just a snapshot of the mountains of data from the Sentencing Commission, the court system, and the Department of Public Safety. I will eagerly await my copy of the Sentencing Commission’s annual statistical report for a more complete analysis. Among the 18 or so Justice Reinvestment states, North Carolina has been hailed as a success. I would love to hear readers’ thoughts about the data above, and how the law has changed practice in your neck of the woods.

Happy and safe Thanksgiving to all! I am thankful for the work you do to keep us safe, to seek justice, and to protect our constitutional rights. And I am thankful for my wonderful colleagues for the work they do to help you do those things.