Advanced (Un)Supervised Release

In this earlier post I wrote about Advanced Supervised Release (ASR), a new program created by the Justice Reinvestment Act (JRA) that allows certain defendants to be released from prison before serving their minimum sentence. The law is set out in G.S. 15A-1340.18. To sum it up, defendants who fall in certain grid cells who receive an active sentence may, in the discretion of the sentencing judge and the prosecutor, be admitted to the ASR program, through which they can secure an early release from prison by completing certain “risk reduction incentives.” Defendants who complete those incentives in a timely fashion get released onto post-release supervision on their ASR date; defendants who don’t serve a “regular” sentence, as dictated by the minimum and maximum sentence imposed by the court. When I wrote about the law last September, I noted that only time would tell how it would be integrated into practice. Well, time has passed, and some issues have emerged. First, it’s worth noting that people are using ASR. A common refrain in many of my JRA training sessions was that prosecutors—over whose objection an ASR date may not be set—would always object. That has not happened. Second, I’m told that many of the ASR dates that have been set have been calculated incorrectly. In cases where the sentence imposed is from the presumptive or aggravated range, there really isn’t any calculation to be done. The ASR date in those cases is just the lowest mitigated minimum sentence the defendant could have received—in other words, the lowest number in the defendant’s cell on the sentencing grid. Only when the sentence imposed is from the mitigated range is math necessary; in those cases, the ASR date is 80% of the minimum sentence imposed. The law does not include a rounding provision, so a Prior Record Level II defendant sentenced at the bottom of the mitigated range to 9–20 months for a Class G felony would, if admitted to the ASR program, have an ASR date of 7.2 months (9 x 0.80), and that is what should be recorded on the judgment form. Finally, there’s the effective date issue—some might say glitch—I noted in my earlier post. Under Justice Reinvestment, the ASR law applies to persons entering a plea or who are found guilty of an offense (convicted, essentially) on or after January 1, 2012. S.L. 2011-192, sec. 5.(e). The law assumes that anyone ordered into the program will be released to post-release supervision on the ASR date upon completing his or her risk reduction incentives. The problem is that Class F–I felons with offense dates before December 1, 2011—some of whom will be convicted after January 1, 2012—do not receive post-release supervision at all. I wrote in September that I wasn’t sure how ASR, Advanced Supervised Release, would apply to a group of defendants who simply had no supervised release to be released to in advance. This turns out not to be a hypothetical issue any longer, as there have already been low level felons with offense dates prior to December 1, 2011 ordered into ASR. As I understand things, those defendants fall in a sort of ASR no man’s land: the prison system feels compelled by G.S. 15A-1340.18(e), which applies to the offenders based on their conviction date, to release them on the ASR date if they complete their risk reduction incentives, but the Post-Release Supervision and Parole Commission sees no basis for supervising them on post-release supervision based on the offenders’ offense date. I don’t disagree with either of those positions—the law says what it says—but the upshot is that the ASR date for these offenders is really an early outright release date. With no supervised release and thus no prospect of the remaining time on the maximum sentence of imprisonment being activated in the event of a violation, it’s just advanced release. The issue eventually goes away as Class F–I felony cases with pre–December 1, 2011 offense dates work their way through the system. In the short term, however, judges, lawyers, and defendants need to be aware of how the law is being applied to make informed decisions about who will be admitted to the program and what that will mean as a practical matter.