The New G.S. 90-96

Last year, the Onion (my favorite news satire outfit) ran an article headlined “Nation Shudders at Large Block of Uninterrupted Text.” It’s a pretty funny take on modern society’s overreliance on things like bullet points and YouTube to process information. The headline made me think of G.S. 90-96.

As most readers know, G.S. 90-96 allows for a conditional discharge for certain drug offenders. The statute itself is long and convoluted, but conceptually the law is pretty straightforward. It allows a convicted defendant to be placed on probation without the court actually entering judgment in the case. If the person fulfills the terms and conditions of the probation, the court dismisses the charges and the defendant is left without a conviction. If the person violates a term or condition of the probation, the court may enter an adjudication of guilt and sentence the defendant. Successful defendants under age 22 may apply for an expunction of the dismissed charge under G.S. 15A-145.2(a).

The Justice Reinvestment Act (JRA) (S.L. 2011-192) makes several changes to G.S. 90-96, all of them effective for persons entering a plea or found guilty on or after January 1, 2012. The first set of changes involves subsection G.S. 90-96(a). I’ll get to subsection (a1) and the other portions of the law below.

The JRA both limits and expands eligibility for discharge and dismissal under G.S. 90-96(a). On the one hand, it limits the pool of eligible defendants by excluding anyone previously convicted of any felony under any state or federal law or any controlled substance or drug paraphernalia offense. Existing law excluded only those defendants with prior controlled substance or drug paraphernalia convictions. On the other hand, the law expands G.S. 90-96(a) by allowing discharge and dismissal of any misdemeanor or felony simple possession crime under G.S. 90-95(a)(3), regardless of the substance schedule or amount, and possession of drug paraphernalia under G.S. 90-113.22. Under existing law, the only felony offense eligible for discharge and dismissal under G.S. 90-96(a) was possession of less than one gram of cocaine. (All possession crimes, including felonies, were already eligible for discharge and dismissal under existing G.S. 90-96(a1), but again, I’ll get to it in a minute.)

Those changes are important, but the biggest change to G.S. 90-96(a) under the JRA is that it makes discharge and dismissal mandatory for consenting defendants. The provision saying the court “may, without entering a judgment of guilt . . . defer further proceedings and place [the defendant] on probation,” is changed to say the court “shall” do it. That means any eligible defendant who pleads guilty to or is found guilty of a simple possession offense must, if he or she consents, be placed on probation under G.S. 90-96(a).

I have heard concerns about the mandatoriness of the new provision from both prosecutors and defense lawyers. Prosecutors are expecting an increase in trials on simple possession offenses; a defendant charged with simple possession has nothing to lose by going to trial if probation under G.S. 90-96(a) is mandatory upon conviction. Defense lawyers, meanwhile, have pointed out that probation under G.S. 90-96(a) is, in some senses, worse than other outcomes they might be able to obtain under existing law—like punishment by a fine only, for example. Of course, a defendant can always short-circuit the “mandatory” deferral by refusing to consent to it.

All parties—including judges and clerks—have expressed concerns about the logistical implementation of the new provision. Because discharge and dismissal can occur only once for any defendant, the court must make certain before placing the defendant on a new deferral that records of a prior one haven’t been expunged. And the only way to do that is to ask recordkeeping officials at the Administrative Office of the Courts to review the confidential file maintained in Raleigh, which—understandably—takes time. AOC has designed a new form, AOC-CR-237, to help expedite that process by allowing the parties to ask for an anticipatory review of the confidential file in cases where a conviction for simple possession is possible.

About subsection (a1) of G.S. 90-96. It’s a complicated provision with a strange history that dates back to 1981, but only since 2009 has the law explicitly provided that discharge and dismissal were permissible under subsection (a1) at all. See S.L. 2009-577. For at least the past two years, though, it has been clear that a defendant’s first simple possession offense under G.S. 90-95(a)(3)—regardless of drug schedule or amount—or G.S. 90-113.22 was eligible for deferral under subsection (a1). Subsection (a1) also provided that for the purposes of determining whether a conviction is a person’s first, no prior offense occurring more than seven years before the date of the current offense is considered. In those ways (the broader offense eligibility and the seven year look-back period), subsection (a1) has been broader than subsection (a).

The JRA amends G.S. 90-96(a1) to make it applicable to a first conviction of any offense that qualifies under subsection (a)—which, in light of the JRA’s expansion of offense eligibility under subsection (a), is really no change to subsection (a1) at all. Subsection (a1) continues to be an optional program; the court “may” use it for an eligible defendant. Given that subsections (a) and (a1) cover the same offenses, you might be thinking that there’s no need for discretionary relief under (a1) when relief under (a) is now mandatory. That’s largely true, but subsection (a1) continues to cast a broader net than subsection (a) in terms of defendant eligibility. Subsection (a1) alone includes the seven year look-back window for prior convictions and dismissals. And subsection (a1) does not exclude defendants with prior non-drug felony convictions (it only excludes those with prior convictions under G.S. 90-95(a)(3) and 90-112.22, as well as convictions under  90-95(a)(1), 90-95(a)(2), 90-113.10, 90-113.11, and 90-113.12).

The JRA also amends the expunction provisions in G.S. 90- 96(d) and the corresponding procedure in G.S. 15A-145.2(b) to allow an expunction of any felony possession offense under G.S. 90-95(a)(3) if the charges were dismissed or the person was found not guilty. (The legislation’s effective date—which is based on “persons entering a plea or who are found guilty of an offense”—is unclear as applied to dismissals.)  The law also changes the expunction provisions in G.S. 90-96(e) and the corresponding procedure in 15A-145.2(c) to allow an expunction of a conviction of a felony possession offense if the person has no prior convictions specified in those statutes.

My sense is that some districts in North Carolina use G.S. 90-96 a lot and some don’t use it at all. After January 1, everyone will have to come to grips with that large block of uninterrupted text.

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