Quick Dips

As I mentioned in a prior post, the Justice Reinvestment Act (S.L. 2011-192) creates a new set of “community and intermediate probation conditions” that can be ordered in any Structured Sentencing probation case. One of the new community and intermediate conditions, available for defendants on probation for offenses committed on or after December 1, 2011, is a new form of short term jail confinement that some have referred to as “quick dips.” Under new G.S. 15A-1343(a1)(3), the court can order up to six days of jail confinement during any three separate months of a period of probation, for a total confinement time of up to 18 days. The time must be served in 2-day or 3-day increments, meaning the maximum number of individual “dips” a person could face in a single case is nine (three 2-day dips in three separate months). If the defendant is on probation for multiple judgments, confinement periods must run concurrently and may still total no more than six days per month. Quick dip time is served in a “local confinement facility”—a jail—never prison. Like periods of confinement in response to violation (“CRV” periods, discussed here), quick dips look a little like special probation. But they are not a split sentence. They are not subject to the length limitations of G.S. 15A-1351(a) and G.S. 15A-1344(e), which cap a split sentence at one-fourth of the maximum sentence imposed. Unlike CRV, though, quick dip confinement can be ordered at sentencing. In fact, quick dips are the only type of confinement that can be ordered at sentencing in a community case (special probation is still off limits for non-intermediate cases). When quick dips are ordered by the court as a modification of probation there does not appear to be any statutory right to appeal the change. Because quick dip time is a condition of probation, it seems to fit within the language of G.S. 7A-313 (“persons ordered to pay jail fees pursuant to a probationary sentence,”) meaning the court could impose a $40 fee for each day of confinement ordered. Though quick dip confinement is an option available to the court at sentencing or as a modification, the provision was added to the law largely to pave the way for use by probation officers through delegated authority. The idea (I think) was that judges could not delegate authority that they did not have themselves. Effective for offenses committed on or after December 1, 2011, quick dip confinement is added to the menu of conditions that a probation officer can impose through delegated authority under G.S. 15A-1343.2(e) (community cases) and -1343.2(f) (intermediate cases). Delegated authority does not apply in impaired driving cases. And of course it does not apply in cases where the judge has “un-delegated” the authority in the judgment. The details of the dip are the same in the delegated authority context as they are in the community and intermediate condition described above: up to 18 total days of confinement, served in 2- or 3-day chunks, in three separate months. Procedurally, though, a probation officer has to do a lot more than a judge before imposing a quick dip. First, unlike other delegated authority conditions under the new law (discussed here), quick dips may not be imposed by a probation officer based on the offender’s risk level alone. Rather, a probation officer can only impose a quick dip when the Division of Community Corrections has determined that the offender has failed to comply with one or more of the conditions imposed by the court. (Note that noncompliance with other conditions imposed by a probation officer through delegated authority won’t do the trick.) Second, the officer must get a supervisor’s approval prior to using delegated authority. Third, the officer must prepare a violation report noting the alleged violations and designating the period of confinement the officer is planning to impose. The officer must then advise the probationer of several rights: (1) the right to a “hearing before the court on the alleged violation, with the right to present relevant oral and written evidence”; (2) the right “to have counsel at the hearing, and that one will be appointed if the probationer is indigent”; (3) the right “to request witnesses who have relevant information concerning the alleged violations”; and (4) the right “to examine any witnesses or evidence.” G.S. 15A-1343.2. Only if the probationer signs a waiver of all of those rights, with both the probation officer and a supervisor also signing as witnesses, can the officer impose the quick dip. If the probationer does not waive the officer would presumably choose whether to bring the violation to the court’s attention through the regular violation process or to respond to the violation through some other form of delegated authority. I imagine Community Corrections policy will give officers more specific direction on how to proceed in the event of a non-waiver. Those offenders who waive will be taken to the jail. Magistrates and sheriffs’ personnel should be aware that probation officers have this new authority to order confinement without any action or approval by a judicial official. In fact, unlike other delegated authority conditions for which the offender can file a motion with the court to review action taken by the probation officer, the new law expressly states that the offender “shall have no right of review” of quick dip confinement after signing the waiver of rights described above. I have received lots of questions about the quick dip provision. A recurring one is whether judges and probation officers draw from a common pool of 18 days when imposing quick dip time. For example, if the judge imposes three days of quick dip confinement at sentencing, is the probation officer limited to 15 days of confinement through delegated authority? To the extent the probation officer’s authority flows from the judge, it makes sense that the time is shared—and my understanding is that Community Corrections will operate under that interpretation. It remains to be seen whether judges will hold the reciprocal belief that confinement time used by a probation officer is thereafter unavailable to the judge. Of course, a judge would have other options for ordering confinement in response to a violation, like special probation or CRV. Finally, there is the question of the constitutionality of delegating authority to impose jail confinement to a non-judicial officer. I discussed some of those concerns in this prior post. A leading treatise on the law of probation and parole describes as “universal” the view that “a sentencing court may not under any circumstances delegate to the department of corrections or to a probation officer authority to order a period of additional incarceration for a probationer who is under their supervision.” Cohen, Law of Probation and Parole, § 7:23. However, the case cited in support of that proposition, State v. Hatfield, 256 Mont. 340 (1993), did not strike the delegation of confinement authority on constitutional grounds. Rather, the Montana Supreme Court noted that “no statute specifically authorize[d]” the delegation.” Perhaps the court’s analysis would have been different had there been an enabling statute like North Carolina’s new law. In fact, after the Hatfield case was decided Montana enacted a law, Mont. Code Ann. § 46-23-1015, allowing up to 30 days of confinement in a county detention center in response to a violation after an “informal probation violation intervention hearing”—but even that confinement can only be ordered by a “designated hearings officer” after a hearing, not by the probation officer himself or herself. My own (admittedly non-comprehensive) review of other jurisdictions’ laws in this area indicates that some states that allow administrative (i.e. non-judicial) sanctions in response to probation violations tend to stop short of allowing full-blown jail confinement. Delaware, for example, allows its corrections department to respond administratively to “technical and minor” violations with sanctions less restrictive than “Accountability Level V,” including up to 5 consecutive days of supervision at “Accountability Level IV.” Del. Code Ann. title 11 § 4334. Accountability Level V is incarceration; Accountability Level IV is house arrest, partial confinement in a half-way house, or placement in a residential treatment facility. Id. § 4204. Georgia’s system includes similar limitations. Ga. Code Ann. § 42-8-155; 42-8-153(c). Oregon, on the other hand, allows an officer to impose jail confinement under its law, Or. Rev. Stat. Ann. § 137.595, and there do not appear to be any reported cases challenging its constitutionality.