The Post-Release Supervision Violation Hearing Process in a Nutshell

As expected, the number of people on post-release supervision (PRS) is on the rise. After Justice Reinvestment, all felons with offense dates on or after December 1, 2011 who serve active time receive PRS. The legislature projected that the addition of PRS for Class F-I felons would increase the number of post-release supervisees from 2,000 to around 15,000 over the next few years. The PRS census stands at about 3,300 today. It’s no surprise, then, that I’m starting to get more questions about how PRS works in practice. Today’s post sets out the basic law for what happens when a person is alleged to have violated a condition of his or her post-release supervision. The controlling authority for PRS cases is the Post-Release Supervision and Parole Commission (the Commission), not a judge. The Commission sets the conditions of supervision (the statutory default conditions are set out in G.S.15A-1368.4) and adjudicates alleged violations of them. The officers who supervise PRS cases are the very same officers who supervise probation, but unlike probation, violations of PRS are reported to the Commission, not the court. An officer can arrest a post-release supervisee for an alleged violation, but only with a warrant issued by the Commission. G.S. 15A-1368.6(a). If the supervisee is arrested, he or she may be detained in the local jail pending a preliminary hearing on the violation. The preliminary hearing must be held reasonably near the place of the alleged violation or arrest within seven working days of the arrest. Otherwise, the supervisee must be released at that point under G.S. 15A-1368.6(b) to continue on supervision until a hearing is held, unless the supervisee is a sex offender, in which case he or she may be held longer under G.S. 15A-1368.6(b1). It is generally said that a post-release supervisee has no entitlement to bail pending a PRS hearing. There is no statute actually saying that. In fact, the sole statute mentioning “bond” for post-release supervisees is G.S. 15A-1368.6(b1), and, as I just mentioned above, it says only that sex offenders may be “detained without bond” until a preliminary hearing is held, even if it takes more than seven working days to hold it. The express prohibition on bond for sex offenders could, perhaps, be framed as tacit approval of it for non-sex offenders. But I mention that only as a possible argument. To be clear, there is no statute  authorizing bail in PRS matters (as is there is for probationers in G.S. 15A-1345(b1)), and the longstanding practice has been to deny it. (The most authoritative guidance on point appears to be a 1975 opinion of the attorney general.) Statutorily, the preliminary hearing may be conducted by a judicial official or by a hearing officer designated by the Commission. In practice, they are done by hearing officers, generally at the local jail. The procedure is informal, as provided in G.S. 15A-1368.6(d). There is no absolute right to appointed counsel at the preliminary hearing, but there is a conditional right, both as a constitutional matter under Gagnon v. Scarpelli, 411 U.S. 778 (1973), and statutorily under G.S. 148-62.1. That law creates an entitlement to appointed counsel for supervisees who (1) deny the alleged violation; (2) have reasons that justify or mitigate the violation that are complex or hard to present; or (3) appear to be incapable of speaking effectively for themselves. The Office of Indigent Defense Services has developed a procedure that directs hearing officers and clerks of court to use form AOC-G-311 for the appointment of counsel in appropriate cases. If probable cause is found at the preliminary hearing, the supervisee can be returned to prison to await a revocation hearing before the full Commission. (The hearing officer can also reinstate supervision under the same or modified conditions. When that happens, the defendant is still entitled to credit against his or her remaining term of imprisonment for any time spent confined pending the preliminary hearing. State v. Corkum, __ N.C. App. __, 735 S.E.2d 420 (2012)). As a practical matter, the vast majority of supervisees apparently waive their right to a final revocation hearing. Those who do not waive may be confined for up to 45 days pending the revocation hearing, as provided in G.S. 15A-1368.6(e). That confinement is generally in a DAC prison facility. Historically, supervisees were brought to Central Prison to be close to the Commission headquarters in Raleigh. As of last year, however, the Commission is empowered to hold revocation hearings by videoconference under G.S. 143B-720(f). As a result, supervisees may be taken to one of the several facilities around the state equipped with videoconference equipment. Under G.S. 143B-721(d), final revocation decisions are made by majority vote of the full Commission. For supervisees under supervision for crimes committed on or after December 1, 2011, the Commission’s authority to revoke post-release supervision is limited much like judges’ authority to revoke probation. The Commission may only revoke for a new criminal offense or absconding, or for any violation committed by a sex offender. G.S. 15A-1368.3(c)(1). All other supervisees may only be returned to prison for three months at a time—similar to a 90-day CRV for probation. That is the regular violation process in a nutshell. Note that the Commission may also respond to violations by sex offenders using the contempt procedure set out in G.S. 15A-1368.2(b), described here.