Post Supervision Release and New Maximum Sentences

In light of recent changes to North Carolina’s post-supervision release and post-conviction laws, all offenses, except now have post supervision release.

Everyone convicted of an offense committed on or after December 1, 2011 will be required to complete Post-Release Supervision. Class B1 to F have twelve months of post supervision release. Class F through I will have 9 months of post supervision release. Under previous law, a prior-record-level II offender sentenced for a Class H felony at the top of the presumptive would receive 8 to 10 months, with no post-supervision.

Under the new law, the same person would face a sentence of 8 to 19 months, where the person would serve between 8 and 10 months, with the balance of the sentence hanging over the person’s head upon release at no later than 10 months. In other words, the person would have at least 9 months hanging over his head while on post supervision release.

The 19 months represents real time, which means if the person violates the conditions of Post Supervision Release, the person could end up serving the additional 9 months. But the Justice Reinvestment Act restricted the ability of the Post Supervision Release Commission to immediately impose the active time upon revocation, and may require the PSR Commission to initially impose “quick dunks” for the offender. Those quick dunks would be credited against the time.

Next, the new maxes will affect splits. Splits are calculated off the max. This may have been an unintended consequence of the new maxes, but the quarter of the total maximum sentence now has increased as well.

A person on a split could end up serving, for instance, as much as almost 5 months on a Class H, Level II felony presumptive range sentence, which is just one month shy of the bottom of the presumptive. Obviously, splits are usually negotiated with the Assistant District Attorney, which means that the split might be much lower. But in this scenario, it may not make much sense for the defendant to agree to a plea involving a split that is nearly as long as the minimum sentence he might serve on straight active time.

North Carolina’s Advanced Supervised Release

The Criminal Justice Reinvestment Act, parts of which went into effect on December 1, 2011, and parts of which went into effect on January 1, 2012, creates a new Department of Corrections program called the Advanced Supervised Release program.

The program is similar to parole or post-supervision release, but by a different name. Here’s how it works, and how it can benefit people who committed felony offenses after December 1, 2011 and are found guilty of those felonies after January 1, 2012.

If the Assistant District Attorney does not object, the judge may order the Department of Corrections (DOC) to place certain defendants into the DOC’s ASR program. Eligible defendants include:

  • Class D Felonies (robbery with a deadly weapon, first degree burglary, etc.) with prior record levels of I to III
  • Class E Felonies (certain violent assaults, felony child abuse, etc.) with prior record levels of I to IV
  • Class F Felonies (involuntary manslaughter, assault inflicting serious bodily injury, certain arsons) with prior record levels of I to V
  • Class G Felonies (felon in possession of a firearm, second degree burglary) with prior record levels of I to VI
  • Class H Felonies (certain drug crimes including PWISD, larcenies, certain embezzlement crimes) with prior record levels of I to VI

If the sentencing judge orders the Defendant into the program, then defendants who complete “risk reduction incentives” in prison are released on post-supervision release on their Advanced Supervised Release Date. This date is determined by calculating the person’s lowest minimum sentence in the mitigated range for the defendant’s offense and prior record level or 80 percent of the imposed minimum if a mitigated-range sentence was imposed.

If the Defendant was not eligible to complete “risk reduction incentives” perhaps because he spent most of his sentence in a local jail, the defendant is still eligible for the ASR program if it’s mandated by the judge.

Once the Judge authorizes ASR, the DOC must allow the defendant to participate in ASR programs. However, the person may not successfully complete ASR risk-reduction programs, such that the person may not benefit.

More information about this program is available here.

Structured Sentencing Changes

I’ve written here before about changes to North Carolina’s Structured Sentencing system. This is the second change in two years – the previous change went into effect on December 1, 2009.

As of December 1, 2011, there are two important changes to the Structured Sentencing system which governs how most offenses – except DWIs and drug trafficking – are sentenced following conviction.

In order to ensure that everyone who is convicted of a North Carolina felony is considered a felon for federal purposes, North Carolina’s General Assembly increased punishments for Class I and Class H felons so that all felons in North Carolina face at least 13 months of punishment.

Thirteen months is a magic number because under federal law, one is not a felon unless one can spend at least 12 months in prison for a crime. Under the old chart, certain low level North Carolina felons were not deemed to be felons for federal purposes because under state law they could not receive at least 12 months of prison. Now all felons can potentially receive 12 months of punishment, making everyone who is convicted of a felony in North Carolina a felon under federal law.

Also as of December 1, 2011, North Carolina has enhanced punishments for those convicted of reportable sex offenses. The enhancements involve changes to Structured Sentencing’s Min-Max chart, which creates the maximum punishment the person faces. For defendants who behave well in prison, they may be able to effectively work the time off to reach the minimum based on good behavior.

But for defendants who are held in jail awaiting trial, the new sentencing chart will punish them because they can receive no credit against the maximum sentence while spending time in local jails. Consequently, the change basically means they will spend more time, potentially, in jail than someone who pled early to a sex offense crime.

In addition, the min-maxes simply punish sex offenders more harshly.

Misdemeanor Punishment Statistics

When someone is charged with a crime, his or her first question is, normally, what’s the chance I’ll be convicted and what sentence will I probably get?

First, no guarantees can be made about whether or not someone will be convicted, or whether or not they will get this or that punishment. That’s because there are so many different facts and circumstances unique to a case involved that’d be impossible to predict with absolute accuracy what the result will be. In addition, attorneys are under an ethical obligation not to guarantee results.

While there can be no guarantees, sometimes statistics can helpful in understanding how the law works and how certain convictions are treated.


For instance, in fiscal year 2008/9 more than 150,000 people were sentenced for misdemeanor convictions in North Carolina. According to the most recent Citizen Guide on structured sentencing:

  • 48 percent of misdemeanor convictions involved public order offenses (public intoxication, underage drinking, DWI, etc.)
  • 25 percent involved property crimes.
  • 17 percent involved drug offenses.

  • 10 percent involved person offenses (assaults, affrays, etc.)

In addition, misdemeanor punishments tend toward probation and fines:

  • 74 percent of misdemeanor convictions involved a Community Punishment (probation, fines, court costs, community service, etc.)
  • 24 percent of convictions involved Active Punishment (a jail or prison sentence)
  • 2 percent of convictions involved an Intermediate Punishment (either one or a combination of punishments harsher than Community Punishment, but less harsh than Active Punishment)

Most misdemeanor convictions tend toward a community punishment, but for many of my clients the punishment isn’t the important part of the equation – it’s the conviction that matters. North Carolina has a number of different programs, from First Offenders to Drug Diversion 90-96, that can be used to avoid a conviction altogether. Consult with a lawyer about this possibility in your case.

Guides on North Carolina’s Incarceration Rates

In 1990, the North Carolina General Assembly created a commission to study and report on proposals to revamp North Carolina’s sentencing system. The old system was called Fair Sentencing. Among the complaints were that the system was not fair, did not treat people equally under the law, and did not provide transparency in sentencing.

Under the old system, which used a combination of good time, gain time, and parole, a person would be sentenced to a comparatively wide range of possible sentences by a judge, only to have the actual sentence determined by the Department of Corrections. While the purported sentence could be very lengthy, the actual sentence served was more often than not much more lenient.

This indeterminacy in sentencing created the impression of leniency, especially when someone was sentenced to a long sentence, but was released much earlier, and then went on to commit additional crimes.

In 1994, North Carolina implemented Structure Sentencing, which gave the judge discretion, but only within a narrow band of possible punishments depending on the level of the crime and the person’s prior record level.

How has this system performed? Virtually every year the North Carolina Sentencing and Policy Advisory Commission releases Citizen Guides to structured sentencing in North Carolina. These guides are useful explanations of how this system works in North Carolina.

Changes to the North Carolina Sentencing Chart

A new sentencing chart will take effect in North Carolina as of December 1, 2011. For nearly 15 years, the chart remained essentially the same. In 2009, however, the chart was revised. Now the chart is undergoing a new revision. (The new chart will likely be available at once it’s created.)

The revision in the chart is driven not by state, but by federal law. Over the summer, the Fourth Circuit Court of Appeals handed down new case law involving the application of certain federal sentencing guidelines in light of state convictions.

Basically, the decision involved the interpretation of what it means to be a felon under federal law. Certain federal laws – including felon-in-possession of a firearm and sentencing enhancements based on felon status – apply a federal definition of felon status to state law. Under federal law, a felon is someone eligible to serve more than 12 months in confinement.

But what does it mean to be eligible? U.S. v. Simmons established that someone considered a felon under state law may not be considered a felon under federal law if that person could not have been eligible for more than 12 months of confinement given the class of crime and the person’s prior record level. To get very technical for a moment, under North Carolina’s sentencing chart as it existed up until December 1, 2011, a person convicted of certain low level felonies was a felon for state purposes, but not a felon for federal purposes.

The North Carolina General Assembly has resolved this issue, making even the lowest level felony – a Class I offender with a Prior Record Level of 1 – a felon for federal purposes by establishing the maximum possible punishment in that sentencing block as 13 months.

Crack Sentencing in the Federal System

One of the glaring problems with federal drug sentencing laws was the very heavy sentencing applied to people accused of having rock or crack cocaine, as opposed to powder cocaine. The myth that emerged in the 1980s was that crack cocaine was somehow more dangerous than powder cocaine.

As a result of the hysteria in the 1980s over crack violence and crack babies and the crack epidemic, Congress decided to punish the possession, sale, or trafficking in crack cocaine much more harshly that the possession, sale, or distribution of powder cocaine.

Now some sanity has been restored to federal drug sentencing guidelines – although they remain very punitive and much too harsh for a civilized society.

Since crack cocaine has plagued the African-American community more than other communities, African-Americans were punished much more harshly than people of other backgrounds. This racial disparity was certainly in the minds of the Federal Sentencing Guidelines commission which, following the Fair Sentencing Act of 2010, has now approved procedures which will reduce the sentences of more than 12,000 Americans who have been punished unduly harshly for possession of crack cocaine.

According to the Los Angeles Times:

About 12,000 federal prisoners nationwide may soon be going home, some as much as three years early, under a U.S. Sentencing Commission decision to allow retroactive reductions in prison terms for inmates convicted of crack cocaine offenses. The commission voted unanimously Thursday to bring “unfairly long sentences” for crack offenders, mostly African Americans, more in line with the shorter terms given to powder cocaine offenders, often white and sometimes affluent.

Fair Sentencing and DWI Convictions

North Carolina uses a structured sentencing system for most of its criminal law. This system is a grid system where a person’s prior record level and the seriousness of the current crime are used to establish a sentencing range. Within that range, the judge can set an appropriate sentence. If you have questions about this, contact a criminal lawyer Raleigh at (919) 352-9411.

But DWI sentences are handled differently. DWI sentencing is governed by North Carolina’s Fair Sentencing law which, in addition to the judge’s decision at the time of sentencing, governs how much time the person will serve.

Let’s look at the most serious DWI level. If someone has two grossly aggravating factors, that person will be sentenced as an Aggravated Level 1 offender, if convicted of a DWI. The judge can impose a sentence of up to 3 years in prison according to the statute, and fine you up to $10,000.

While a person convicted of DWI may be paroled into DART (a substance abuse treatment program administered by the DOC), the person will probably serve two years in prison, instead of three years.

5k1.1, 18 USC 3553(e) and Rule 35 Federal Sentencing Departures

Federal criminal law has stiff penalties. First, there are the laws – the statutes – that are generally harsher than state statutes in imposing criminal sanctions and penalties. Second, there are the Sentencing Guidelines which add to the harshness of the federal system.

There are some limited ways that a federal criminal lawyer can help mitigate the effect of a criminal punishment, so that the person ends up serving far less time.

One way is through 5k1.1 assistance. The Sentencing Guidelines state:

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

  1. The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
      (1)the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
    1. (2)the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
    2. (3)the nature and extent of the defendant’s assistance;
    3. (4)any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
    4. (5)the timeliness of the defendant’s assistance.

By providing timely and substantial assistance, a defendant may be able to secure a reduction in his base offense level so that he is a less harsh punishment grid. All United States Attorneys consider assistance that leads to the arrest and prosecution of other as “substantial assistance.” This is a motion made by the government, and approved by a judge.

The problem with 5k1.1 assistance is that it won’t permit the judge to go below the statutory minimum imposed by the law. So, for instance, if you’ve been accused of trafficking in 6 kilograms of cocaine, there is a minimum 10 year sentence imposed upon conviction. 5k1.1 assistance will help you get down to 10 years, possibly, but it won’t let the judge sentence you below 10 years because that’s the minimum imposed by statute for that crime.

One provision – 18 USC Sec. 3553(e) – allows the judge to go below the statutory minimum in cases of what I like to call “super” substantial assistance. If 8 or 9 out of 10 people who offer substantial assistance are rewarded with a sentence reduction, then just 1 of the 10 people who offer substantial assistance benefit from a 3553(e) super reduction below the statutory minimum.

To recap: if you offer substantial assistance, you may enjoy a reduction in a sentence, but that reduction won’t go below the statutory minimum for a crime. However, if your substantial assistance meets 3553(e) qualifications, the judge may, in that case, go below the statutory minimum, but must remain within the sentencing guidelines.

Both 5k1.1 and 3553(e) reductions are motions made by the government prior to sentencing. Upon sentencing, the sentence is set and the person goes into prison with that sentence having been established.

Rule 35 provides for post-conviction reductions in the sentence if the person provides substantial assistance. Rule 35 post-conviction reductions can go below the statutory minimum. This might be information that the person knew at the time he was originally convicted, but did not reveal. Or it can be information that the person developed after he was convicted, perhaps while working in cooperation with agents or authorities.

Federal Sentencing Guidelines Overview

Federal criminal law features sentencing guidelines. These guidelines have been drafted by the United States Sentencing Commission. These guidelines are not mandatory, and a federal district judge has the authority to depart upward or downward from the guidelines upon appropriate findings.

However, the guidelines are the most important tool courts and lawyers have in determining the ultimate sentence for someone convicted of a federal crime.

The guidelines first determine the base offense level. There are 43 base offense lives, the higher the level, the more serious the crime.

Second, the guidelines provide for a large number of “specific offense characteristics.” These are characteristics that are associated with the crime that can either increase, or decrease the base offense level. For instance, if a robbery included the display of a firearm, there may be a 5 level increase from the initial base offense level of 20, making the offense level 25.

Third, the guidelines provide for adjustments, which again can either increase or decrease the offense level. For instance, if the person was a minimal participant, the offense level can be decreased by 4 levels.

Fourth, the sentencing guidelines provide for Multiple Count Adjustments. The most serious offense serves as a starting point, and if there are multiple counts, the other counts help determine whether and by how much the offense level will be increased.

Fifth, the sentencing guidelines provide for Acceptance of Responsibility. A judge may determine whether the person made restitution, pled guilty, and accepted responsibility for the crime prior to sentencing. If so, the person may be eligible for a 2 level reduction, plus an additional 1 level reduction if the offense level was above 15 and the government motion indicates that the person pled guilty in a timely fashion.

The person’s sentence will be determined, in large part, by calculating the person’s offense level as described above, and then using the person’s prior criminal record to determine where he falls on the grid.

Many crimes – including drug crimes – include mandatory minimums. These statutory minimums mean that even if the person achieves an offense level which would have him serve less time than the statutory minimum states, he will serve the statutory minimum. In other words, the statutory minimums are floors.

There are limited ways to go below the statutory minimum which I will discuss at a later time.

In addition, a judge is permitted to depart from the guidelines altogether, although departure from the guidelines may limit the judge in terms of going below an offense’s statutory minimum.



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