90-Day DART-Cherry

The Department of Correction runs substance abuse treatment programs for probationers and certain parolees: DART-Cherry in Goldsboro for men, and, as of last year, Black Mountain Substance Abuse Treatment Center for women (about which you can read more here). DOC is making changes at DART-Cherry. Previously, there were two program tracks there: a 28-day cognitive-based program and a 90-day therapeutic community program. According to a November memo from the Secretary of Correction, as of January 1, 2011, DOC is discontinuing the 28-day program and devoting all 300 beds at DART-Cherry to the 90-day program. The memo explains the reasons for the change; in short, evidence shows the longer program works better. Probably in response to the planned changes, I’ve been asked several times recently whether a probationer must have a suspended sentence of at least 90 days to be ordered to attend a 90-day treatment program. It’s a really good question. Unfortunately, I don’t think it has a clear answer. DART-Cherry is a residential program under G.S. 15A-1340.11(8) and -1343(b1)(2). Unlike special probation (for which G.S. 15A-1351 caps the active portion of a split sentence at one-fourth the maximum sentence imposed or, for impaired drivers, one-fourth the maximum penalty allowed by law) there is no explicit statutory requirement for a person to have a suspended sentence of a particular length before being ordered to participate in a residential program. A defendant need not, for example, have an 8-year suspended sentence to participate in the 2-year residential program at Triangle Residential Options for Substance Abusers (TROSA) in Durham. But DART-Cherry is arguably different. It has been deemed sufficiently restrictive of participants’ liberty to count as confinement under G.S. 15-196.1. State v. Lutz, 177 N.C. App. 140 (2006) (ordering credit against an activated sentence for time a defendant spent at DART-Cherry while on probation). If a court revoking probation must retrospectively credit the time as confinement, must a court sentencing a defendant to DART-Cherry as a condition of probation prospectively consider the time as confinement? To the extent that it must, sentences to DART-Cherry start to look like split sentences—which, under the one-fourth rule from G.S. 15A-1351, would need to have at least four days of suspended sentence for every day spent in the program. Under that approach a 90-day stint at DART-Cherry would only be permissible for a probationer who had at least 360 days of suspended time, or a DWI probationer sentenced to Level One or Level Two punishment. But that’s just an argument; I don’t know of a case or statute clearly requiring a defendant to have a 90-day sentence (much less a 360-day one) as a prerequisite for attendance at 90-day DART. DOC’s list of eligibility criteria for DART-Cherry, available here, likewise does not say anything about a particular sentence length. But even if there’s no legal or administrative requirement for a defendant to have a certain amount of suspended time, it strikes me that a court might think twice before sending a person with a short suspended sentence to the 90-day program. Because any time spent there necessarily will count for credit upon revocation under Lutz, the offender becomes effectively revocation-proof when he or she has been in the program for time equal to the suspended sentence. I’m told the Post-Release Supervision and Parole Commission takes that approach, only sending parolees to the program if they have 90 (or close to 90) days remaining on their sentence.