Some felony probationers ordered to serve a period of confinement in response to violation (CRV) wind up spending more time behind bars than they would have if their probation been revoked.
Suppose a probationer has a 5–15 month suspended sentence. Let’s assume he has 30 days of jail credit and he’s already served one 90-day CRV. So, he has 4 months of jail credit under his belt.
He is arrested for another violation of probation. Let’s assume he is held in pre-hearing confinement for 30 days awaiting the probation violation hearing, bringing the total jail credit to 5 months.
If the violation is a new criminal offense or absconding, the person would be eligible for revocation. If revoked, however, the person would (as discussed here) spend only about one month in prison before being mandatorily released onto post-release supervision. For a Class F–I felon, that release is mandatory on the date of the maximum imposed term less 9 months (in this example, 15 – 9 = 6). G.S. 15A-1368.2(a).
But what if the violation is a technical violation? For technical violations (that is, violations other than a new crime or absconding), the court may not revoke. Instead, it may order a 90-day CRV (or a split sentence, or electronic house arrest, or any other modification aside from revocation). If the court orders a CRV, it is prohibited from crediting any of the defendant’s accumulated jail credit to the 90-day term of confinement. G.S. 15A-1344(d2) (“The 90-day term of confinement ordered under this subsection for a felony shall not be reduced by credit for time already served in the case. Any such credit shall instead be applied to the suspended sentence.”). That means a person ordered to CRV will serve 90 days before being released—which is three times longer than the revoked probationer described above.
This can come as a surprise to some defendants, who expected that the CRV would end when they reached the point at which they would have been released from an activated sentence. In our example, the defendant might have expected that the CRV would end after 1 month, because at that point he would have served 6 months of the sentence, bringing him within 9 months of the 15-month maximum.
I don’t read the law to operate that way. The rule requiring mandatory release to post-release supervision only applies to felons serving an active sentence. G.S. 15A-1368.1. “Active sentence” in that statute is understood to refer to defendants sentenced to active time at the outset and to revoked probationers. A probationer serving CRV has not been revoked. Therefore, the post-release supervision Article (Article 84A of Chapter 15A) does not (yet) apply to him at all.
This distinction may make more sense if you follow each scenario through to the end. In the first scenario, where the defendant is revoked, he is indeed released from prison after only one month. But he is not released outright. He is, rather, released onto post-release supervision. He will be on PRS for 9 months, with the final 9 months of his term of imprisonment hanging over his head. So it’s not as though the release at the 6-month point was the end of the matter. The person could still be returned to prison by the Post-Release Supervision and Parole Commission upon violation of PRS.
In the second scenario, the technical violator ordered to 90-day CRV will serve 90 days. At that point, he would return to probation for whatever time remained on his supervision period (no statute tolls the running of a probation period during CRV confinement)—unless, as is often the case, the court ordered that probation would terminate at the conclusion of the CRV (a so-called terminal CRV).
If the CRV is terminal, the defendant will be done with the case upon release from the CRV. If the CRV period was not terminal, our probationer would have the final 7 months of his term of imprisonment hanging over his head during whatever remained of his probation period. For any subsequent violation, he could be revoked. If revoked, he would—finally—fall within the coverage of the post-release supervision article. And because he would, by then, be well within 9 months of his maximum term, the revocation would result in an immediate release to post-release supervision. It’s yet another illustration of the imperfect fit between the post-release supervision law and low-level felony sentences—particularly those that begin with probation.
In my opinion, it is not wrong for the CRV period to extend beyond the point at which a person serving active time would be released. For a felony, a CRV period is required to be 90 days—no more, no less—unless the time remaining on the maximum sentence is 90 days or less. G.S. 15A-1344(d2). I don’t see a clear basis for interpreting “maximum sentence” in that context to mean “release point” or “maximum minus 9 months.” If a judge wished to impose fewer than 90 days imprisonment in response to a technical violation near the end of a probation case, a more flexible option might be special probation followed by early termination—a terminal split.