The Statewide Misdemeanant Confinement Program

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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).

15 comments on “The Statewide Misdemeanant Confinement Program

  1. Interesting article! I practice in Seattle, Washington, and here, misdemeanor sentences are often served in a county jail. That is not always the case, but often. However, a misdemeanor sentence simply would not be served in the state person system. Local municipal courts often have agreements where those sentenced by a city judge (municipal court) serve a sentence in a county jail, with the city paying the county a daily rate for the cost of incarceration. There are some cities that have their own city jails, and in that circumstance, the misdemeanant does a sentence in a city jail. There must be city jails in NC too?

    If a person is sentenced in a county district court, then the sentence is simply served in the respective county jail.

    Misdemeanor sentences can be a max of 90 days for “simple misdemeanors” or 364 days for “gross misdemeanors.” Most offenses have the 364 day max, and many folks do end up with long sentences. There are judges who will give out stiff jail sentences here.

    The only way to get to a prison is through a felony charge.

    It is an interesting question, “where does one serve a sentence?” because the answer is never quite as straight-forward as it seems. Here in Washington, the Issaquah Jail is known for being a “nicer” jail, and believe it or not, once in a while I’ve seen misdemeanants self-pay their jail and serve their sentence in Issaquah. So, the Seattle muni judge or County judge simply approves the sentence to be done in Issaquah, and the misdemeanant goes there.

    I’ve rambled quite a bit, and on a tablet, so please forgive typos.

    ~Melody

  2. AT THE COST OF 25000 TO HOUSE MISDEMEANANTS IN OUR STATE PRISONS. I BELIVE IT IS INSANE FOR THIS STATE TO DO SO. THIS DOSE NOT IN ANYWAY SAVE MONEY OR HELP OUR STATE. THER ARE OTHER WAYS T COLLECT FINES AND COST FOR A PERSON, SUCH AS COMMUNITY SERVICE. THIS BILL DOSE NOTHING TO ENSURE PEOPLE THAT HAVE COMMITTED NO CRIM OTHER THEN TRAFFIC OFFENSES, OWE FINES FOR CIVIL OFFENSES, OR DRIVING WELL LICENSE REVOKED WILL NOT GO TO PRISON? I DO NOT SEE ANY WAY A JUDGE CAN SEE FIT TO SEND SOMEONE TO PRISON WITH RAPIST, KILLERS, ROBBERS, AND ASSAULTIVE PEOPL FOR SUCH THIGS WHERE THERE ARE NO VICTIMS? DOSE ANYONE THINK PFF ALL THE MISDEMEANANTS THAT ARE ASSULT IN VIROUS WAYS OR PRAYED APON BY REAL CRIMINALS? I HAVE MUCH MORE TO SAY ON THIS MATTER THAT IT WOULD TAKE DAYS. THINK OF THE NUMBER OF,”POLICE, SCHOLL TEACHERS, FIRE FIGHTERS, AND OTHER JOB’S THAT SENDING MISDEMEANOR’S TO PRISON’S TAKE OUT OF OUR COMMUNITY’S?

    • First of all there is no such thing as a “victimless crime”. Community service is NOT the answer when you can not even get people to report to do it, let alone pay the fine associated with it. If you are a member of the driving while license revoked club then you are creating victims when you get behind the wheel. Those victims are the rest of us who have to pay higher insurance rates when you potentially crash into someone. The big question is WHY do you not have a license? Did you not finish school? Did you drive while impaired? Do you just have an overall disrespect for the laws of NC? Driving is NOT a right, it is a privilege and a privilege you should pay to earn.
      Firing school teachers is NOT the answer either, for obvious reasons. Police are great. Only criminals and law breakers need fear them.
      JRA is in its infancy. It will take time to put the data together to see how well it works. Implementation of community resources and reinvesting in programming for mental health and substance abuse will have a positive outcome.
      No solution will ever be perfect but this is a step in the right direction.

      • No such thing as a victimless crime? You MUST be kidding…the adult use and possession of cannabis, which accounts for more arrests and charges than any other offense in this nation, over 800,000 a year, is most certainly a victimiless ” crime “. the laws against pot were founded on racism and political chicanery..just read the history of the 1937-8 efforts..anytime someone is charged with an offense that can have no victims, has no complainant, and for which no harms can be discerned, it is a miscarriage of justice. Now that two states have legalized adult possession, it is a matter of politics, not harms, that are the issue.

        • Driving is in essence a right. read OUR constitution. we all have a right to travel

      • In order for there to be a crime there must be an injured party. Speeding-no injured party, seat belt violation – no injured party, drug possession – no injured party, driving without license – no injured party, paraphernalia – no injured party. All of these “crimes” are meteor ploys by the state to extort the citizen.

      • Black people have to fear the police and not all black people are criminals. We are being shot down like animals in the street with no weapons to defend ourselves.

  3. Once again we see the legislative branch scurrying to manufacture new ways of balancing a budget that has exploded because of their, and other elected officials irresponsible spending. Of course any sheriff would want a judge to slap an offender with an additional day of incarceration for that extra money! I can see the handwriting on the wall for what’s coming next. The legislature will no doubt in the near future enact more laws that carry 91-180 day jail sentences so they can further bolster their coiffeurs in anticipation of further irresponsible spending! Currently in this state, court costs now exceed thee fines for the infractions in many cases by as much as 800%! This should be an outrage to all citizens. Why should any person with a relatively good driving record who had the misfortune of making a small insignificant driving error at the wrong place and time (in view of an LEO), such as lets say violating GS 20-154 without any accident or a motorcycle involved, be slapped with $188 in court costs and only a $25 fine? We already pay property taxes on both homes and vehicles, trailers and such, sales tax at the store even on toilet paper, sales tax on gasoline (one of the highest in the nation), recently increased registration and titling fees, tax on auto repairs and parts, and the list could go on! This is obviously just another hidden tax on drivers, and also a great incentive for sheriff deputies to write more traffic violation citations. The only way one can get out of it is to do the waiver routine if you’re fortunate enough to be charged with such an offense, and pay the $25 fine thereby avoiding the outrageous court costs now imposed simply because the accused wishes to exercise their rights to contest a traffic violation charge! We all know that most traffic violations result in a guilty verdict by judges that most often take the word of the LEO over the defendant, and in most traffic violations there are usually no other witnesses because people driving alone are the perfect targets for overzealous LEO’s looking to add funds to their jurisdictions coiffeurs as well. I recently checked the court calendars for Carteret County and the number of traffic violations are unimaginable with many of the citations being issued by the guess who? That’s right sheriffs deputies! Have to wonder why right? Or do we given this new legislation creating another avenue for collecting revenue?

  4. Just for past and future reference, I was sentenced to 45 days for School Attendance Law violation (a misdemeanor) in 2010 in North Carolina. One month before my probation was to end, my P.O. violated me because I was a few days late on my final payment. I served my sentence in a state prison, not county jail. I was in county for 7 days before transfer. This was standard practice in NC for ANY misdemeanor sentence over 15 days. Statutes stated sentences under 60 days were supposed to be served in county jail. The county got around that by using the make population numbers and saying they were overcrowded. I think it’s past time lawmakers took a stand and made the counties do what they are supposed to do.

  5. […] sentences imposed January 1, 2015, all active sentences for misdemeanor DWI are served through the Statewide Misdemeanant Confinement Program. G.S. 15A-1352(f). Thus, defendants serving active terms of imprisonment will be imprisoned in a […]

  6. […] plan was the SMCP. I described the original structure of the SMCP here and here. The Program was expanded in 2014 as described here. Under the current framework, all misdemeanor […]

  7. My husband is in Rutherfordton County Detention Center under this Misdemeanor Confinement Program, and has been having problems with his teeth. And from what I’ve read about the program it has funds for medical treatment, but they will not send him out they just want to keep charging him $20.00 for each nurse visit and just keep giving him antibiotics. Who should I contact about this situation.

  8. I am trying to get some information. My son is serving 180 days at Caswell County Detention Center. He wears glasses and soon after he was confined he was involved in an altercation and his glasses got broken. He has asked several times to be able to see an eye doctor and get more glasses because he is now getting a lot of headaches and cannot read or see tv without visual help. He has been told that he does not qualify for an eye exam. He has another 2 1/2 months to serve. How can he get some help with this medical issue??

  9. My husband is currently serving 150 for probation violation under the state misdeamoner confinement program.. he was sentenced 4-14 months felony time as well. All his time is running concurrent.. my question is will he go to doc for his felonies or do his time in the county jail..

  10. This id’s absolutely sickening. There are people who have been convicted of previous felonies that who were on active probation in multiple counties while committing multiple crimes in multiple jurisdictions. What ever happened to habitual misdeamoner offender sentencing? This is simply putting offenders back out in our streets who obviously have zero respect for the laws that us other law abiding citizens follow. NC law makers need to start locking up these repeat offenders and protect the law abiding citizens.

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