The Statewide Misdemeanant Confinement Program

In this prior post, I wrote about how Justice Reinvestment changed the rules for determining where a person serves his or her sentence. Today’s post takes a closer look at the proper place of confinement for misdemeanor inmates with sentences of 91 to 180 days, the Statewide Misdemeanant Confinement Program (MCP).

The basic idea of the MCP is to transfer responsibility for misdemeanor inmates with relatively long sentences from the prison system to the counties, but with the express intent that the costs of housing and caring for those inmates “be covered by State funds and not be imposed as a local cost.” G.S. 148-32.1(b1). The decision to do that stemmed from an observation by analysts from the Council of State Governments that North Carolina was unusual in the number of misdemeanants housed in its prison system (see p. 6 of the CSG report, available here).

Under the new place-of-confinement rules set out in G.S. 15A-1352, misdemeanants with a sentence imposed that requires confinement for a period of more than 90 and up to 180 days, except for impaired driving under G.S. 20-138.1 or nonpayment of a fine, must be committed by the court to confinement pursuant to the MCP. G.S. 15A-1352(e).

The MCP is administered by the North Carolina Sheriffs’ Association, Inc. (NCSA), which developed the program in consultation with the Department of Public Safety, Division of Adult Correction (formerly DOC). After a brief pilot program in late 2011, the program began statewide operation on January 1, 2012. Here is how it works.

When a defendant is sentenced for a misdemeanor with a sentence of between 91 and 180 days, the court should check the box on the new judgment forms committing the defendant to the “Misdemeanant Confinement Program.” (Only one place-of-confinement box should be checked; I hear from DAC that they’re seeing a lot of judgments with multiple destinations indicated on the same form.) The NCSA will then identify jail space for the inmate in a jail that has volunteered to be a “receiving county” under the program and signed an agreement with the Department of Public safety to that effect. That agreement references terms and conditions established by the NCSA, available here, which set a $40 per day reimbursement rate for jails that house inmates under the program. In-jail medical expenses are built into that $40 per day rate. The NCSA has provided an insurance card to participating counties to cover out-of-jail medical expenses.

If the county of conviction has entered into an agreement to house MCP inmates, then in all likelihood the inmate will remain in that county to serve his or her sentence. If the county of conviction has not volunteered to house MCP inmates, it will nonetheless be expected to transport the inmate to the receiving county identified by the NCSA. In that sense, all 100 counties are participants in the MCP as “sending counties.” Sending counties are reimbursed by the program for the costs of getting MCP inmates to their target destination ($0.55 per mile and $25 per hour per officer).

At last check, over 50 counties have entered into agreements with the Department of Public Safety to house MCP inmates. That should yield enough beds to cover the 1,400 misdemeanants with sentences of 91–180 days who are incarcerated on any given day across the state. The NCSA reports that the participating counties are geographically distributed in a such a way that they don’t expect to have to transport any MCP inmate by more than a county or two to get to a volunteer receiving county. Defendants and their lawyers wanting to know where a sentence will be served may want to at least determine whether the county of conviction is a participant in the program as a receiving county. Aside from that, I’m not sure there’s any way to be completely sure before sentencing about where the sentence will be served.

If the NCSA gets to a point where no bed space is available for MCP inmates in the jails that have volunteered beds to the program, MCP inmates can be transferred to DAC, which gets reimbursed by the program for the costs of housing, transporting, and supervising the misdemeanant. G.S. 148-32.1(b4). The law also includes a “safekeeper” provision, similar to existing G.S. 162-39, which allows for the transfer to DAC of inmates who pose a security risk; require specialized medical treatment; or who cannot be accommodated due to space constraints. G.S. 148-32.1(b3).

The Statewide Misdemeanant Confinement Program only exists as long as there is money in the new Statewide Misdemeanant Confinement Fund established under G.S. 148-10.4. G.S. 148-32.1(b2). The money that goes into the Fund comes from two court costs that came into effect on August 1, 2011: an $18 court cost for all district court convictions, and a $50 court cost specific to convictions for an improper equipment offense. G.S. 7A-304(a)(2b) and (4b). Last I checked there was already about $9 million in the Fund; the legislature’s Fiscal Research Division projected the court costs would generate approximately $31 million annually. Ten percent of the monthly receipts collected into the Fund go to the NCSA to support the MCP and for administrative and operating expenses of the NCSA and its staff. G.S. 148-10.4(e). One percent of the Fund goes to the General Fund to be allocated to DAC for its administrative and operating expenses for the MCP. Id.

The change in the place-of-confinement rule for 91–180 day misdemeanants and the creation of the MCP has, unsurprisingly, led to some questions. The first relates to the effective date of the law itself. It says the new rules for determining where a person should serve his or her sentence apply for “sentences imposed” on or after January 1, 2012. Certainly, then, it should kick in for new sentences entered on or after that date. But what about probation revocations after January 1? Is that imposition of a sentence, too? In general I would say it is not, but if the court modifies the sentence at the point of revocation, the appellate courts have deemed that to be imposition of a new sentence. See State v. Hanner, 188 N.C. App. 137 (2008).

The next question is whether you consider the effect of consecutive misdemeanor sentences when determining whether an offender falls within the 91–180 day threshold for the MCP. On the one hand, the language of G.S. 15A-1352(e) refers to “a misdemeanor” and “a sentence” in the singular, in contrast to subsection (a) of the same statutory section, which says that a defendant should be committed to DAC if the “sentence or sentences” imposed exceed 180 days. On the other hand, the choice of 180 days as the upper limit of the MCP range suggests that consecutive sentences should be aggregated; the longest sentence for a single misdemeanor under Structured Sentencing is 150 days. As a practical matter, consecutive sentences are not always entered by the same judge at the same time (sometimes, for example, a person is already on probation when sentenced for another misdemeanor, which is set to run consecutively to the first sentence in the event of revocation), so it is unclear how the later addition of a consecutive sentence would affect the proper place of confinement in the earlier case.

Third, there is the question of the effect of the MCP on other types of confinement judges might order. In particular, it appears that periods of confinement in response to violation (CRV, or “dunks”) are served pursuant to the program if they are imposed in a case where the defendant’s active sentence would be served in the program. That’s the rule in G.S. 15A-1344(d2), as amended by a technical correction in S.L. 2011-412, sec. 2.3(d)—another one of those changes that didn’t make it into the LexisNexis General Statute books.

Finally, there are questions about the money. I’ve already had judges tell me that sheriffs have mentioned to them that a 91-day sentence would be better from the sheriff’s perspective than a 90-day sentence. You hate to see punishment decisions motivated by external monetary incentives, but $3,640 and the promise of coverage for any out-of-jail medical costs that may arise is no small matter for the sheriff and the county, who—since the repeal of G.S. 148-32.1(a) in 2009 (S.L. 2009-451, sec. 19.22A)—receive no State reimbursement for other misdemeanor inmates (they used to receive $18 per day for inmates with sentences of 30 days or more).