The Courts’ Limited Role in Post-Release Supervision

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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.

By statute, the Post-Release Supervision and Parole Commission (the Commission)—not the court system—is responsible for administering post-release supervision. G.S. 15A-1368(b). The supreme court has likewise recognized that PRS “ha[s] always been [a] function[] of the executive and not the judicial branch.” State v. Sparks, 362 N.C. 181 (2008).

PRS conditions. The Commission sets an offender’s conditions of release as provided in G.S. 15A-1368.4. Many of those conditions look similar to the conditions that judges impose on probationers (e.g., not commit a new crime; not use, possess, or control any illegal drug or controlled substance; etc.), but PRS conditions are, in general, set by the Commission.

There are, however, a few areas where the courts have a limited role when it comes to PRS conditions. First, several of the statutory conditions of PRS require the supervisee to comply with existing court orders, such as an order to pay court costs or attorney fees. See G.S. 15A-1368.4(e). Second, under G.S. 15A-1340.36, the court may, when imposing an active sentence, recommend to the Commission that restitution be made a condition of PRS. The court may also recommend that restitution payments be made out of a defendant’s work release earnings. Id. But those are just recommendations, and neither is binding on the Commission.

Exception to sex offender condition. There is one area where a court appears to have a more pivotal role related to PRS. G.S. 15A-1368.4(b1) sets out PRS conditions for sex offenders and other offenders convicted of crimes involving the physical, mental, or sexual abuse of a minor. They are very similar to the probation conditions for sex offenders set out in G.S. 15A-1343(b2). Under G.S. 15A-1368.4(b1)(5), a post-release supervisee who is under supervision for an offense involving the physical or mental abuse of a minor is prohibited from residing in a household with any minor child “unless a court of competent jurisdiction expressly finds that it is unlikely that the defendant’s harmful or abusive conduct with recur and that it would be in the child’s best interest to allow the supervisee to reside in the same household with a minor child.” (There is no similar exception for offenses involving sexual abuse of a minor; those offenders may not reside with a minor child in any circumstance.)

The reference to a “court of competent jurisdiction” seems out of the place in the PRS article. So much so that I might have chalked it up to a cut-and-paste drafting glitch–were it not for the fact that the analogous probation provision in G.S. 15-1343(b2)(5) says “the court,” not “court of competent jurisdiction.” So the decision to outsource this “best interests of the child” exception to a judge appears to have been intentional. And I suppose it makes sense; a local judge may be better equipped than the Raleigh-based Commission to delve into a fact-specific determination like this. As a practical matter, my understanding is that a covered offender who wishes to live with a child may petition a judge to allow the exception, but even if the judge grants it, the Commission takes the position that it has the final say in the matter.

PRS violations. The courts have little to no role in the PRS violation process. As discussed here, a post-release supervisee arrested on allegation of violation is generally thought to have no entitlement to bail. A preliminary hearing on a PRS violation may, under G.S. 15A-1368.6(c), be conducted by a “judicial official,” but my impression is that those hearings are almost always conducted by a hearing officer employed by the Division of Adult Correction. Only the Commission itself may hear a final PRS violation hearing; a court should never be involved in one of those. G.S. 15A-1368.6(e).

2 comments on “The Courts’ Limited Role in Post-Release Supervision

  1. How does a MAPP effect PRS. My understanding is when an inmate is released via a MAPP there is no PRS. Thank you

  2. I had a question about whether duplication litigation or collateral estoppel pertained at all to duplicate probation and parole violations? If you’re charged with absconding from post-release/probation, but the DPS commissioner finds you innocent, can you effectively claim either of these defenses during your probation violation hearing? I’m having a difficult time finding any case law on this.

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