For Whom the (ahem) Period of Probation Tolls

If you’ve been reading the paper, you know the Division of Community Corrections (Probation) has been under a microscope lately. Since the killings of UNC undergraduate Eve Carson and Duke graduate student Abhijit Mahato in 2008, both allegedly committed by probationers, Probation has been taking a hard look at its policies and procedures.

One change that has come about is a new interpretation of the provision in 15A-1344(d) that says a “probation period shall be tolled if the probationer shall have pending against him criminal charges in any court of competent jurisdiction, which, upon conviction, could result in revocation proceedings against him for violation of the terms of this probation.” Probation has now taken the position that a new charge for any offense other than a Class 3 misdemeanor (probation cannot be revoked solely for conviction of a Class 3 misdemeanor) tolls—that is, stops the clock on—a person’s period of probation immediately when the charge is brought. The period is held in abeyance until the charge is resolved (by way of acquittal, dismissal, or conviction), and then resumes when the charge is no longer pending, with as much time remaining on the period as there was when the case was first tolled. When a probationer is charged with a new crime, you effectively push pause on a clock counting down how much time a person has left on probation, and you don’t “un-pause” it until the charge is resolved.

Probation’s new approach to tolling is based on Court of Appeals decisions in State v. Henderson, 179 N.C. App. 191 (2006) (“Under the statute, a defendant’s probationary period is automatically suspended when new criminal charges are brought.”) and State v. Patterson, __ N.C. App. __, 660 S.E.2d 155 (2008) (same). Prior policy required tolling of the case only when a probationer had a new pending charge when his or her period of probation was set to expire.

The impact of the new policy could be substantial, not only because a lot of probationers are charged with new crimes while they’re on probation, but also because Probation is now (for the first time) equipped with the technology to know when their supervisees are charged with new crimes. A new web-based alert program informs Probation’s computer system (OPUS) when a probationer has a new charge pending in AOC’s computer system (ACIS). When a probation officer gets an alert that a new charge is pending, he or she tolls the case immediately.

The result? A lot of people are going to be on probation a lot longer than they expected.