New Law on Probation Revokations

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New Law on Probation Violations as it applies to misdemeanors.

Great article by the NC School of Government.

Come December 1, dips will be the new dunks for Structured Sentencing misdemeanants.
Since 2011, the rule for probation violations in North Carolina has been as follows. Revocation is permissible only for violations of the “commit no criminal offense” and “absconding” conditions. All other violations are considered “technical violations,” and the court may not revoke probation for them. Instead, the court may impose a period of “confinement in response to violation” (CRV) of 90 days for a felony or up to 90 days for a misdemeanor, or some other sanction aside from revocation (like a split sentence or electronic house arrest, for example). After a probationer has received two CRV periods, he or she may be revoked for any violation, including a technical violation. G.S. 15A-1344(d2). It’s a sort of “three strikes and you’re out” approach to minor violations.
The thing is, hardly anyone ever gets to the third technical-violation strike. (Actually, not that many people even get to the second one.) Something else usually happens first. Either the person gets revoked for a new criminal offense or absconding, or the probation period expires, or the first CRV is a so-called “terminal CRV”—meaning that it either uses up the defendant’s entire suspended sentence or that the judge affirmatively terminates the probation after the first CRV period is served. Especially for misdemeanants, whose suspended sentences often are not any longer than 90 days to begin with, many if not most first CRVs are terminal.
Realizing that the existing CRV model isn’t really compatible with misdemeanors, the General Assembly decided this session to abandon it—at least for misdemeanors sentenced under Structured Sentencing. Under S.L. 2015-191, signed by the governor last week, CRV is eliminated as a probation response option for Structured Sentencing misdemeanants placed on probation on or after December 1, 2015.
With CRVs eliminated, something else needed to serve as the “strike” that would put a misdemeanant technical violator on the path to revocation. Enter the “quick dip.”
Under the amended law, a judge may impose jail confinement under G.S. 15A-1343(a1)(3)—the “community and intermediate probation condition” colloquially known as a “quick dip” in the jail—in response to a probation violation other than a new crime or absconding. The quick dip, described here, is short-term jail confinement served in two- or three-day increments that may total no more than six days in any month, and that may be used in no more than three separate months of a person’s probation. A probation officer may also impose a quick dip through delegated authority under G.S. 15A-1343.2(e) (community punishment cases) and G.S. 15A-1343.2(f) (intermediate punishment), if the probationer waives his or her right to a hearing on the violation.
Once a probationer has received two periods of quick dip confinement for a technical violation, he or she may, under the revised law, be revoked for any subsequent violation. The second quick dip must have been imposed for a violation that occurred after the defendant served the first dip. With that in mind, the judge or probation officer imposing the first batch of dip confinement probably wouldn’t want to use up the full complement of available dip days, because that would leave no dip time available for imposition of a qualifying second dip after service of the first one. I don’t think that’s likely to be a problem in practice; my sense is that most dip confinement is ordered only two or three days at a time. Remember that a judge may also impose dip confinement at sentencing or in response to a new crime or absconding, but under revised G.S. 15A-1344(d2), those dips won’t qualify as technical violation strikes.
The amended law makes no changes to the existing rule for felony or DWI probationers, or for the tens of thousands of misdemeanor defendants who will already be on probation as of December 1. For them, CRV will remain as a permissible option for technical violations, with revocation allowed for any violation after receipt of two CRVs. As has become the norm, probation officers and court officials will have to take great care to use the proper law (and the proper forms) applicable to the individual probationer. I’ll work on a set of three-dimensional tables that will tell you proper law to apply given a particular offense, offense date, sentencing date, and violation date. Fear not; you’ll all have 3-D printers by the time I finish it.
The new approach is probably a better fit for short misdemeanor sentences than the existing CRV structure, but it may bring us back to square one on some of the interpretive questions we had regarding CRVs. For example:

• Can a defendant appeal quick dip confinement, either to superior court for a de novo hearing, or from superior court to the court of appeals?
• If a judge orders a quick dip at a violation hearing, may (or must?) the judge credit any pre-hearing confinement toward the dip? Or is the credit prohibited?
• What about dips imposed on a person on probation for multiples offenses; they must run concurrently with one another, G.S. 15A-1343(a1)(3), but does the defendant get jail credit against all of the cases if he or she later gets revoked?
• Does the rule apply equally to unsupervised cases, where there is no probation officer to impose dips through delegated authority? (I have never read the reference to defendants “under supervision” in G.S. 15A-1344(d2) to limit the rules on revocation eligibility to supervised probationers. G.S. 15A-1344(a) sets out the baseline rule for revocation eligibility, and it is not limited to supervised offenders, and G.S. 15A-1341(b) says that, in general, unsupervised probationers are subject to the same rules as the supervised ones.)

I also wonder whether the increased emphasis on quick dips may give rise to a constitutional challenge (background here). I’m not aware of any pending litigation along those lines—even though probation officers have imposed over 5,000 quick dips statewide since 2011. But that could change once dips mean more. It’s also possible, of course, that probationers will become less likely to consent to an officer-imposed quick dip, knowing that it puts them on the path to revocation. My understanding is that under current law, very few probationers refuse to consent to a probation officer’s quick dip proposal.
Finally, even though the duration of the quick dip makes it a better intervention than CRV in short misdemeanor cases, a defendant is still entitled to a full-blown violation hearing before the court may order one. So we’re still left with a world where it could take three hearings (dip, dip, then revoke) to fully activate a relatively short sentence. With that in mind, I wouldn’t be surprised to see an increase in “terminal splits” or “terminal contempt” ordered in response to defendant’ first technical violations. Court (and counsel) time—not suspended sentence length—may be the true limiting factor.