Unsupervised Probation

Thousands of defendants are sentenced to unsupervised probation each year. They are often first offenders who have been convicted of not-so-serious crimes, so you don’t read much about them in the newspaper or slip opinions from the appellate courts. But there are some aspects of unsupervised probation that are a little tricky, so I decided to write about them today.

The very idea of unsupervised probation is a relatively new concept in North Carolina. It was created in 1977 to replace the prior practice of suspending a sentence without probation. Official Commentary to G.S. 15A-1341. In general, all of the rules of Article 82 of Chapter 15A that apply to supervised probation apply to unsupervised probation too. G.S. 15A-1341(b). Also, a person who commits a new crime while on unsupervised probation is eligible for the additional prior record point possible under G.S. 15A-1340.14(b)(7), just like a supervised probationer.

Under Structured Sentencing, unsupervised probation is only allowed as part of a sentence to community punishment. (Although even in community cases, unsupervised probation is prohibited for defendants on probation for a reportable sex crime or an offense involving the physical, mental, or sexual abuse of a minor. G.S. 15A-1343(b2).) An intermediate punishment must include supervised probation—at least at the outset. G.S. 15A-1340.11(6). A judge may later transfer a person from supervised to unsupervised probation. Under G.S. 15A-1343(g) the judge may authorize the probation officer to transfer a person to unsupervised probation after he or she has satisfied any monetary obligations. The same statute also authorizes a probation officer to transfer a low-risk misdemeanant to unsupervised probation without prior authorization from the court, although I don’t think that happens very often.

For impaired driving, G.S. 20-179(r) creates a strong preference for unsupervised probation for certain defendants sentenced to Level Three, Four, or Five punishment. Shea covers those rules on page 43 of her bulletin on sentencing for impaired driving.

A person sentenced to unsupervised probation is not subject to all the regular conditions of probation that apply to supervised probationers. In addition to not having a probation officer, unsupervised probationers are excused from the following conditions: remain within the jurisdiction; do not abscond; pay a $40 supervision fee; notify the probation officer of a failure to obtain employment; warrantless searches by a probation officer and by law enforcement; and not use, possess, or control any controlled substance. Unsupervised probationers are not explicitly excused from regular condition (16) regarding compliance with drug screening, but to the extent that the condition requires a probation officer to collect the breath, urine, or blood sample, it seems that that condition probably doesn’t apply to an unsupervised probationer.

There are special rules for responding to violations of unsupervised probation. First, a judge who sentences a defendant to unsupervised probation may limit jurisdiction to alter or revoke the sentence to himself or herself. G.S. 15A-1342(h). When that happens, only the sentencing judge may reduce, terminate, continue, extend, modify, or revoke the case—unless that judge is no longer on the bench, in which case any presiding judge in the court where the defendant was sentenced may act. G.S. 15A-1344(b). There is no parallel authority in supervised probation cases.

Second, violations of unsupervised probation must be noticed (usually by the clerk’s office or by community service staff, depending on the alleged violation) under the special procedure outlined in G.S. 15A-1344(b1). Notice of a hearing in response to a violation of unsupervised probation must be given by either personal delivery to the probationer or by U.S. mail addressed to the probationer’s last known address. If mailed, the notice must be sent at least ten days prior to the hearing. Form AOC-CR-220 may be used to provide this notice.

All of the ordinary jurisdictional rules that apply to probation violation hearings apply equally to unsupervised cases. In short, either the hearing must happen before the period of probation expires, or there must be a written violation report filed before expiration to give the court continued jurisdiction to act under G.S. 15A-1344(f). My sense is that this can be a problem in unsupervised cases, because they often come back to court based on a pre-established review date instead of a violation report. My advice would be to schedule that review long enough in advance of expiration that time will remain to file a violation report for any noncompliance that comes to light at the hearing. If the defendant is given more time to comply, the court may wish to affirmatively extend the period of supervision to be sure the probation period does not expire before the next review.

Finally, it appears to me that the Justice Reinvestment Act’s limit on a judge’s revocation authority applies to supervised and unsupervised probationers alike. That limit is set out in G.S. 15A-1344(a), which is not restricted to supervised probationers. I have heard an argument that the reference in G.S. 15A-1344(d2) to defendants “under supervision” for felonies or misdemeanors was meant to limit the confinement in response to violation law to supervised probationers. But that reading is hard to square with G.S. 15A-1344(a), and it would be counterintuitive for the JRA to allow revocation for unsupervised probationers and not allow it for supervised probationers. In any event, most unsupervised probationers have short suspended sentences that can be activated in their entirety with a single CRV, so the limit shouldn’t make too much of a difference in practice.