north carolina sentencing and policy...

NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION

The North Carolina Administrative Office of the Courts North Carolina Judicial Center

Raleigh, NC March 7, 2014

AGENDA

10:00 – 10:15 INTRODUCTION Welcome and recognition of new and departing Commissioners Review agenda

Adoption of minutes from the December 6, 2013 meeting 10:15 – 10:45 STRUCTURED SENTENCING STATISTICAL REPORT FY 2013 Michelle Hall, staff 10:45 – 11:15 CURRENT POPULATION PROJECTIONS – FY 2014 TO FY 2023 Ginny Hevener, staff 11:15 – 12:00 JUSTICE REINVESTMENT IMPLEMENTATION REPORT

SUBCOMMITTEE – STATUS REPORT Judge Brown, Chair 12:00 – 12:30 WORKING LUNCH 12:30 – 2:30 CREDIT FOR TIME SERVED SUBCOMMITTEE REPORT Judge Spainhour, Chair John Madler, Rebecca Wood, staff 2:30 ADJOURN

MINUTES NORTH CAROLINA SENTENCING AND POLICY ADVISORY

COMMISSION MEETING March 7, 2014

The North Carolina Sentencing and Policy Advisory Commission met on Friday, March 7,

2014, at the North Carolina Judicial Center in Raleigh, North Carolina. Members Present: Chairman W. Erwin Spainhour, Art Beeler, Daryl Black (representing Honorable Harry Brown), Sheriff James Clemmons, Louise Davis, Honorable Richard Elmore, Eliott Abrams (representing Chris Fialko), David Guice, Honorable Darren Jackson, Honorable Maureen Krueger, Ilona Kusa, Honorable Floyd McKissick, Dr. Harvey McMurray, Honorable Fred Morrison, Billy Sanders, and Keith Shannon. Guests: Rory Flemming (Extern for North Carolina Office for Administrative Hearings), Lisa Fox (Fiscal Research, General Assembly), Bill Hart (former Commissioner), Jamie Markham (University of North Carolina School of Government), John Poteat (Fiscal Research, General Assembly), Anne Precythe (North Carolina Department of Public Safety), Lao Rubert (Carolina Justice Policy Center), Cassandra Skinner (North Carolina Association of County Commissioners), Gregg Stahl (North Carolina Sheriffs’ Association), and Yolanda Woodhouse (AOC Court Programs). Staff: Susan Katzenelson, Ginny Hevener, John Madler, Vicky Etheridge, Tamara Flinchum, Michelle Hall, Sara Perdue, Jennifer Wesoloski, and Rebecca Wood.

INTRODUCTION

Chairman Spainhour called the meeting to order at 10:00 a.m. He recognized departing Commissioner Christopher Clifton and introduced new Commissioner Keith Shannon. Members and visitors introduced themselves. After Chairman Spainhour reviewed the agenda for the meeting, Judge Fred Morrison moved to adopt the minutes from the December 6, 2013, meeting; the motion was seconded and carried.

STRUCTURED SENTENCING STATISTICAL REPORT FY 2013

Chairman Spainhour recognized Michelle Hall to present court statistics for Fiscal Year

2012/13 (see handout). Ms. Hall informed Commissioners that the information presented would be included in the annual Structured Sentencing Statistical Report for Felonies and Misdemeanors. Trend data included in the presentation come from previously published Statistical Reports. Ms. Hall noted that 64% of the felony convictions and 82% of misdemeanor convictions in FY 2012/13 were for sentences imposed for offenses committed on or after December 1, 2011 (the effective date of the Justice Reinvestment Act or JRA).

Ms. Hall defined a sentencing episode as the sentence imposed for the most serious conviction for a given day of court. In FY 2012/13, there were 28,358 felony convictions (excluding drug trafficking and violent habitual felon convictions) and 130,361 misdemeanor convictions (excluding DWI convictions, cases disposed by magistrates, Class 2 and 3 criminal traffic offenses, and local ordinance offenses) under Structured Sentencing. Felony convictions have increased by less than 1% in the last fiscal year and misdemeanor convictions have decreased by 7.5% in the last fiscal year. Ms. Hall noted the five-year trends: felony convictions have decreased almost 12% and misdemeanor convictions by nearly 18%. Ms. Hall then presented information on the number of convictions by offense class (felons and misdemeanants), prior record level (felons), crime type (felons and misdemeanants), punishments imposed for the current fiscal year and ten-year punishment trends (felons and misdemeanants), distribution by prior conviction level (misdemeanants), active sentences by offense class and sentence location (felons), types of intermediate sanctions imposed (felons and misdemeanants), and types of community punishments imposed (misdemeanants).

Ms. Hall also presented information on several special issues including life and death

sentences, habitual felon convictions, habitual breaking and entering felon convictions, and drug trafficking convictions. Ms. Hall concluded that the data reflect Structured Sentencing at work in the North Carolina court system; she noted that FY 2012/13 felony convictions could be summarized by the information included in Table 4 (see handout). The table includes the number and percentages of convictions, type of punishments imposed, and the average minimum and maximum sentences by offense class and prior record level for each cell on the sentencing grid. The data for FY 2012/13 showed some discrepancies that staff were trying to resolve, particularly related to the sentencing of offenders in cells on the felony punishment chart where certain dispositions were not authorized.

Commissioner Guice asked if the report excluded DWLR (Driving with License Revoked). Ginny Hevener answered that the report excludes Class 2 and 3 misdemeanors; DWLR is a Class 1 misdemeanor.

Commissioner Guice asked if there was a way to tell if a prior offense of a convicted felon is more serious than the subsequent offense(s) committed. Ms. Hevener explained that only prior record points appeared in the AOC database, and not the associated offenses. Previously, staff had examined the criminal history of habitual felons using OPUS data and found that most have prior convictions for Class H and I offenses.

Chairman Spainhour commented that he saw a lot of frowns when Ms. Hall reported that drug trafficking convictions had again decreased during the last fiscal year. He suggested the decrease was probably due to plea bargaining practices.

Mr. Beeler asked if substance abuse was captured anywhere prior to incarceration. If sentenced to Community or Intermediate punishment, Ms. Hall noted that substance abuse history would be captured in the RNA (Risk Needs Assessment) performed by probation – but would not be included in any sentencing data. As an aside, Mr. Beeler said that if caught on the

front end, an offender might admit to substance abuse, but usually not after conviction. During the site visits made by the staff, Ms. Katzenelson said that defense attorneys told them that they might tell a judge about a client’s substance abuse if they thought it might help in the sentencing phase.

Mr. Beeler asked about Ms. Hall’s comment that certain sentences are outside the parameters of the sentencing grids. Ms. Hevener explained that this could be due to database limitations or data-entry issues, but staff has a responsibility to report the information. When looking at the data, Ms. Katzenelson suggested that the discrepancies may not necessarily be sentences deviating from the grid, but technology that has not caught up with the changes under JRA.

Chairman Spainhour asked Ms. Hall if the staff had the number of DWI convictions. Ms. Hall and Ms. Hevener responded that they do not get any data on DWIs.

Mr. Abrams asked if the number of first-time felons sentenced every year could be tracked. Ms. Hall responded no.

Mr. Beeler commented that the number of misdemeanants sentenced to active sentences was trending up. He wanted to know a possible explanation for that trend. Ms. Hevener responded that the trend was probably due to the common practice of sentencing misdemeanants to time served.

CURRENT POPULATION PROJECTIONS – FY 2014 TO FY 2023

Ginny Hevener presented the Current Population Projections for Fiscal Year 2014 to Fiscal Year 2023 (see handout). The projections were prepared in conjunction with the Rehabilitative Programs and Services Section of the Department of Public Safety, and are produced on an annual basis as part of the Commission’s original mandate to develop a projection tool for accurate long-term planning of correctional resources.

Ms. Hevener described the data from the Administrative Office of the Courts and from the Department of Public Safety that are used to project the prison population. The projections are based on the most recent empirical data available – FY 2013 – and were prepared using the simulation model that was developed in collaboration with SAS Institute.

Ms. Hevener noted that FY 2013 represents the first full fiscal year of data since the implementation of the JRA, offering a first look at changes to the criminal justice system under the new law. Ms. Hevener cautioned that data from the early stages of implementation are not necessarily representative of future practices. The annual update of the projections will adjust the projections accordingly as practices evolve.

The prison population is projected to increase from 37,679 to 38,812 across the ten-year projection period – an increase of 3%. Comparing the projected prison population with the

capacity estimates provided by the Adult and Juvenile Facilities Section of the DACJJ, the projected prison population will be below prison capacity across the projection period, with a wider gap between the projected population and Expanded Operating Capacity for FY 2015 through FY 2022. Ms. Hevener noted that the current projections represent an increase compared to last year’s projections due to the limited applicability of the FY 2012 data for changes under the JRA.

Ms. Hevener described demographic trends, criminal justice trends, and policy changes that factor into the decline of the prison population prior to the passage of the Justice Reinvestment Act. With the implementation of the JRA, the population declined further – primarily as a result of the shift of most misdemeanants from prison to local jails through the establishment of the Statewide Misdemeanant Confinement Program and the legal change that places limits on revocations and confinement for technical violations of probation. The prison population decreased 11% from October 2009 (with the highest average monthly prison population to date) to January 2014.

Ms. Hevener summarized the assumptions that were used to develop the projections. The assumptions reflect criminal justice practices from FY 2013. The projections take into account projected growth in felony convictions for the ten-year projection period, changes under the JRA, and, when possible, changes from the past legislative session.

Dr. McMurray stated that he had expected a larger decline with the Justice

Reinvestment Act. He asked if population trends were taken into account. Ms. Hevener stated that North Carolina population trends as well as national trends are taken into account through growth rates. Commissioner Guice said that people had to look at where the population was before JRA. According to Ms. Katzenelson, there were immediate reductions built in when JRA was passed through the Statewide Misdemeanant Confinement Program administered through the NC Sheriffs’ Association. Over time, there will be more reductions. It was never meant to have a smooth slope.

Mr. Black asked if socio-economic factors due to recession played a part in Figure 2 for 2008. Ms. Hevener said that was a factor that was considered for that time period.

Mr. Beeler asked if information about the increases in offenders on post-release supervision had been included in this report. Ms. Hevener answered that these changes are taken into account in the projections, but that the Justice Reinvestment report would provide specific data about the increases in this population since the implementation of JRA.

Commissioner Guice said that 665 misdemeanants were housed in the county jails as part of the SMCP, but that they had projected there would be 1,400. He said that the population had dropped. They have capacity for 1,600. Mr. Sanders asked for an explanation of why the misdemeanor convictions dropped from 170,000 to 130,000. Commissioner Guice told him that one cannot look at this number alone, but also have to consider the number of filings, which were down in the state.

Ms. Krueger said that the reclassification of misdemeanors to a Class 3 or an infraction

will have an effect on the misdemeanant population as well as Driving with License Revoked (DWLR). Ms. Hevener stated that she could look at historical data on 1-180 days sentences for changes in misdemeanors.

Senator McKissick stated that it is interesting to see the impact of JRA so soon. Ms. Katzenelson said that North Carolina had a structured system in place already, it has excellent data, and that JRA fits into the structure. Commissioner Guice stated that the difference would be in what they do with the CRV population. Timing is also key. If the legislature had enacted some of the changes recommended by the Sentencing Commission, the State might not have been in the position of having to make so many changes so quickly.

Senator McKissick asked how the quick dips were working out. Commissioner Guice asked Anne Precythe to speak to this. She explained that the quick dips are intended as attention getters. Probation has identified the non-compliances for which it is appropriate.

Representative Jackson asked if 90 days was long enough for a CRV. He wanted to know if the Department was ready on day one for these offenders. Ms. Precythe said that if the Department had the full 90 days, it was enough time for their program to work. Representative Jackson asked if it would be beneficial to order them to report later, when everything is set up. Commissioner Guice said they were ready to take them in immediately. Ms. Davis asked if the offenders in the confinement center were all of the same sort. Commissioner Guice answered that they are not the same right now because CRV inmates are spread out among several units. DACJJ is developing a model at Johnston Correctional Institute where the inmates serving time for CRVs could be confined together but separated from the general prison population. Ms. Davis asked if there were programs set up for aftercare purposes. Commissioner Guice said that the probation officers on site will work with probation officers in the field to ensure a smooth transition.

Ms. Krueger asked if there would be Intensive Outpatient Programming (IOP) for these offenders completing the 90 days. Ms. Precythe answered that this was the missing piece at this time, but they would be candidates for the TECS program. Currently, DACJJ is working across the state to build programming through TECS to provide services to this group. Commissioner Guice said that they would be asking for more legislative money for this purpose.

JUSTICE REINVESTMENT IMPLEMENTATION REPORT SUBCOMMITTEE – STATUS REPORT

Chairman Spainhour recognized Michelle Hall for an update from the Justice Reinvestment Implementation Report Subcommittee. Ms. Hall provided information about the Justice Reinvestment Initiative, which is a data-driven approach to improving public safety, reducing corrections spending, and reinvesting savings in strategies that decrease crime. She explained that the JRA, which was passed in 2011, made substantial changes to sentencing and correction laws in North Carolina. Included in the JRA legislation was a mandate to the

Commission and the DACJJ to conduct ongoing evaluations regarding the implementation of the JRA. In response to the mandate, the Commission had formed the Justice Reinvestment Implementation Report Subcommittee with the purpose of gathering information, reviewing data where available, and reporting to the Commission any recommendations regarding the JRA.

Since the passage of the JRA and the formation of the Subcommittee, two annual

reports had been submitted to the Legislature in compliance with the mandate. Ms. Hall explained that the first report, submitted April 15, 2012, included information about the preparation phase of implementation. There were no data yet to analyze the impact of any JRA provisions. As a result, the report focused on agency training efforts, policy and programmatic changes made in anticipation of the new law, and data collection or data system changes. The second JRA Evaluation report, submitted April 15, 2013, included information regarding the fine tuning of JRA policies and procedures. The main finding included in the second report was the staggered nature of the implementation of the new legislation – the staggered implementation was in part by design (the JRA had multiple and varied effective dates), and in part due to some delays agencies needed to develop policies to implement JRA provisions.

Ms. Hall noted that the next report, due April 15, 2014, will detail how the JRA is

currently being interpreted in the field. The report will include revised policies and procedures agencies made in CY 2013, data on JRA provisions and practices, and information obtained through site visits conducted by staff across the state in September and October 2013. She concluded by providing a summary of the most recent meeting of the Subcommittee which included presentations from agencies, and update on data for the report, and a summary of some of the information staff learned during site visit interviews.

CREDIT FOR TIME SERVED SUBCOMMITTEE REPORT

Chairman Spainhour recognized John Madler to present the Credit for Time Served Subcommittee Interim Report (see Report). Mr. Madler told the members that the Sentencing Commission established the Credit for Time Served Subcommittee at its December 6, 2013, meeting in response to Commissioner Guice’s request that the Commission study the statutory provisions related to the awarding of time credits against sentences of imprisonment and confinement. Specifically, he asked the Commission to focus on three areas of study:

1. Jail Credit statutes are not clear regarding the awarding of credits. 2. Jail credit statutes do not address new changes in the laws. 3. There is confusion regarding the collecting and calculating of jail credit.

The Subcommittee met twice and studied the issues that had been submitted for

consideration. For some of the issues, the Subcommittee developed recommendations, while for others it decided that the law was clear and that the policy should not be changed. Several issues involved the period of confinement in response to violation (CRV) instituted as part of the Justice Reinvestment Act. The members recognized that the CRV is relatively new and that there is very little data on its use. The Department of Public Safety representative informed the

Subcommittee that they were revisiting the structure and approach to CRVS in general. For those reasons, the Subcommittee decided not to recommend any amendments to the CRV statutes at that time.

Members also heard from representatives of the Sheriffs’ Association, the Conference of Clerks of Superior Court, and the Department of Public Safety’s Combined Records Section about the record keeping process for jail credit from their perspectives. The speakers gave examples, identified problems they encountered, and answered members’ questions about the process.

After studying the issues, the Subcommittee submitted the following three recommendations to the Commission:

1. The Subcommittee recommends that time spent in custody should count for credit against a defendant’s sentence if the defendant’s original charge and ultimate conviction arose out of the same incident.

2. The Subcommittee recommends that a defendant should be given credit for time spent in custody unless another sentence was imposed prior to the accrual of credit on the case currently being sentenced.

3. The Subcommittee recommends that the Sentencing Commission refer Commissioner Guice’s questions regarding the imposition of terminal CRVs to the Justice Reinvestment Implementation Evaluation Report Subcommittee for further study.

Mr. Madler informed the Commissioners that the Subcommittee will continue to meet

and study ways to improve the collection and calculation of jail credit.

Mr. Beeler commented that CRVs are a critical part of the JRA. He supported the idea of having the offender serve the entire 90 day period. The literature says that a program has to provide at least 500 hours of treatment in order for it to take and that it must also provide aftercare. A shorter period of treatment is more deleterious than no treatment at all.

Chairman Spainhour said that CRVs were discussed at length by the Credit for Time Served Subcommittee. It seemed to them that CRVs are only going to work for felonies because most misdemeanor sentences are less than 90 days in length. Perhaps the effort should be spent on trying to figure out what to do with felonies and misdemeanors should be addressed separately. Commissioner Guice said that this was a piece that had to be studied.

The members discussed the mechanics of awarding confinement credit. Mr. Sanders stated that he thought no one on the Subcommittee was disagreeing with the 90 days needed for a CRV, but that pre-trial credit complicated things. He said that there needed to be a legislative mechanism other than sentencing the offender to a set period of confinement to keep them for the full 90 days. Mr. Sanders also questioned what impact removing the credits from the CRV period would have on the projected savings under JRA.

Judge Morrison moved to adopt the Credit for Time Served Subcommittee’s Interim Report. Sheriff Clemmons seconded the motion, and the motion carried.

Chairman Spainhour informed the members that the next full Commission meeting is June 13 and that the Justice Reinvestment Subcommittee will meet on March 28. The meeting adjourned at 1:35 p.m. Respectfully submitted, Vicky Etheridge Administrative Assistant

The North Carolina Administrative Office of the Courts

North Carolina Judicial Center

Raleigh, NC

June 13, 2014

AGENDA

10:00 – 10:15 INTRODUCTION

Welcome

Review agenda

Adoption of minutes from the March 7, 2014 meeting

10:15 – 11:15 RECIDIVISM IN NORTH CAROLINA

Ginny Hevener and Tamara Flinchum, staff

11:15 – 12:30 LEGISLATIVE REVIEW

Judge Spainhour, Chair

John Madler, staff

12:30 – 1:00 WORKING LUNCH

1:00 – 2:00 CONFINEMENT IN RESPONSE TO VIOLATION (CRV) PILOT

PROJECT UPDATE

George Pettigrew, Justice Reinvestment Administrator, Department of

Public Safety

2:00 – 3:00 JUSTICE REINVESTMENT IMPLEMENTATION

SUBCOMMITTEE – 2014 REPORT

Judge Brown, Chair

John Madler & Michelle Hall, staff

3:00 ADJOURN

COMMISSION MEETING JUNE 13, 2014

Members Present: Chairman W. Erwin Spainhour, Honorable Charles Brown, Honorable Floyd McKissick, Honorable Maureen Krueger, Chief Scott Cunningham, Chris Fialko, Billy Sanders, Judge Fred Morrison, Art Beeler, Dr. Harvey McMurray, Ilona Kusa, Honorable Thomas Thompson, Honorable Richard Elmore, Louise Davis, David Guice.

Guests: Rita Beard (Intern to Senator Daniel), Peg Dorer (Conference of District Attorneys), David Edwards (Department of Public Safety), Brendan Burns (Intern to Senator McKissick), Graison McKissick (Intern to Senator McKissick), Lao Rubert (Carolina Justice Policy Center/former Commissioner), Susan Sitze (Research Division, General Assembly), James Markham (UNC School of Government), George Pettigrew (Department of Public Safety), Joyce Kuhn (Pretrial Services), Yolanda Woodhouse (Administrative Office of the Courts).

Staff: Susan Katzenelson, Ginny Hevener, John Madler, Tamara Flinchum, Michelle Hall, Sara Perdue, Jennifer Wesoloski, Rebecca Wood, Jenayalynn Riojas.

INTRODUCTION

Chairman Spainhour called the meeting to order at 10:00 am. He reviewed the agenda for the meeting. Judge Fred Morrison moved to adopt the minutes from the March 7, 2014 meeting; Art Beeler seconded the motion and the motion carried. After the Recidivism presentation delivered by Ginny Hevener and Tamara Flinchum, the members and visitors introduced themselves.

RECIDIVISM IN NORTH CAROLINA

Chairman Spainhour recognized Ginny Hevener and Tamara Flinchum to present the 2014 Report on Recidivism. Ms. Hevener began by noting that the legislative mandate to prepare biennial reports on recidivism directs the Commission to evaluate the state-wide effectiveness of community corrections and in-prison programs, measured primarily by recidivism rates (see handout). Over the course of these eight reports, staff have examined recidivism of over 400,000 offenders, with 50,000-60,000 offenders in each sample. The current report was comprised of convicted offenders placed on probation or released from prison in FY 2010/11, with information about their personal and criminal background, current offense, and correctional program participation. The sample was followed for a fixed two-year period to measure various outcomes. The primary measure of recidivism was fingerprinted arrests supplemented by information on convictions and incarcerations during the two-year follow-up. Interim outcome measures, such as violations and revocations for probationers and infractions committed during incarceration for prisoners, were also examined.

Ms. Hevener explained that the sample selection occurred prior to the implementation of the Justice Reinvestment Act; however, probationers may have been subject to changes in supervision under JRA during the follow-up period. Prisoners in the sample were not subject to any of the changes under JRA. With a look to future reports, the current sample will serve as a baseline recidivism comparison for future samples that include offenders convicted and sentenced after the implementation of JRA. Ms. Hevener turned the discussion over to Tamara Flinchum to present the findings from the report.

Ms. Flinchum presented the results from the 2014 Correctional Program Evaluation Report, based on 57,535 offenders, including 38,165 probation entries and 19,370 prison releases during FY 2010/11. The majority of the sample population was male (78%), primarily nonwhite (56%), few married (12%), almost half without a high school diploma (47%), under half employed (44%), half with a drug addiction problem (51%), and with an average age of 32. Most had extensive criminal history – 79% had at least one prior arrest, 64% had at least one prior probation admission, 40% had at least one prior probation revocation, and 35% had at least one prior incarceration. Of the 57,535 offenders studied, 5% had a B1-E felony as their most serious current conviction, 44% had an F-I felony, and 51% had misdemeanors as their most serious current conviction. Property offenses comprised the highest volume of offenses followed by drug offenses.

Ms. Flinchum reported the recidivist arrests rate for the two-year follow-up period with 28% rearrested during the first year and 41% rearrested during the second year. The first rearrest occurred, on average, 8.4 months after release from prison or start of the probationary supervision period. Offenders with a current conviction of a Class F through Class I felony had the highest rearrest rate (46%) when compared to Class B1-E felons and misdemeanants (41% and 38% respectively). Prisoners released with no post-release supervision (PRS) were compared to prisoners released into the community on PRS. Prisoners with PRS were more likely than prisoners without PRS to be male, nonwhite, employed, and older. Prisoners without PRS tended to have more prior contacts with the criminal justice system than prisoners with PRS. Regarding rearrest rates, prisoners with no PRS had higher rates at 49% compared to prisoners with PRS at 43%. Infractions while incarcerated were examined as an interim outcome measure. Ms. Flinchum reported that 48% of the prisoners had an infraction; when controlling for time served, prisoners with longer sentences had accrued more infractions.

For probation entries, Ms. Flinchum reported findings by type of punishment: community or intermediate. Most received a community punishment (68%). Intermediate punishment probationers were more likely than community punishment probationers to be male, nonwhite, to have dropped out of school, to be unemployed, and to have a drug addiction problem. In addition, intermediate punishment probationers tended to have more prior contacts with the criminal justice system than probationers with a community

punishment. Finally, intermediate punishment probationers had higher rearrest rates than community punishment probationers (41% and 35% respectively).

Ms. Flinchum explained that with community and intermediate punishment redefined

under JRA, probationers also were examined as felons or misdemeanants based on their most serious current conviction. Using the felony/misdemeanor comparison, probationers were examined using two interim outcome measures, violations of probation and revocations of probation. Sixty-six percent of probationers had at least one violation during the two-year follow-up period. Of those probationers with a violation, the majority (58%) had a most serious violation that was a technical violation. Thirty-one percent of the probation entries had their probation revoked during the two-year follow-up period. Of those probationers with a revocation, the majority (49%) were revoked for a technical violation.

Ms. Flinchum reviewed the components of the risk score (the “old” OTI) used for the recidivism study. Overall, 12% of probationers were categorized as minimal risk, 29% as low risk, 34% as moderate risk, and 25% as high risk. She also reviewed the components of the need assessment tools, the Offender Self-Report and the Officer Interview and Impressions instruments. Overall, 3% of probationers were minimal need, 18% were low need, 35% were moderate need, 19% were high need, and 25% were extreme need. The risk level and the need level are combined to determine the appropriate supervision level for each probationer. There are five levels of supervision with Level 1 being the most restrictive and Level 5 being the least restrictive. Overall, 9% of the probationers were supervised at Level 1, 31% at Level 2, 31% at Level 3, 23% at Level 4, and 6% at Level 5. Examination of the outcome measures by probationers’ supervision level revealed a stair-step pattern. Probationers assessed as a Level 1 (the most restrictive) had higher rates of probation violations, revocations, and recidivist arrests during the two-year follow-up compared to the remaining four groups. Level 5 probationers (the least restrictive) had the lowest probation violation rates, revocation rates, and recidivist arrest rates.

Finally, Ms. Flinchum noted the arrest, conviction, and incarceration rates for the sample during the two-year follow-up period – 41%, 21%, and 22%, respectively – and discussed differences in recidivism rates among the subgroups of prison releases and probation entries.

In summary, Ms. Hevener discussed the trends in recidivism rates in North Carolina for

the past 20 years. Historically, statewide recidivism rates have been consistent across samples of offenders and across changes in sentencing laws; however, there has been a measurable increase in the rates of the two most recent samples, FY 2008/09 and FY 2010/11. The primary explanation for the increase from FY 2005/06 to FY 2008/09 points to changes in reporting practices. Historically, fingerprinted arrests included all felonies and only serious misdemeanors. In recent years, the use of automated fingerprint technology has led to a greater number of misdemeanor arrests being fingerprinted. Data from the Department of Justice support this theory. This change may contribute somewhat to the increase from FY

2008/09 to FY 2010/11, but to a lesser degree. A change in offender behavior may account for a larger portion of this increase. Several conclusions have consistently been reported in the eight recidivism reports published. They have confirmed the value of offender risk assessments, efficient targeting of correctional resources, and timely, efficient, and graduated responses to violations of conditions of supervision. Many of the provisions of the JRA are consistent with these findings and conclusions with changes made to community corrections and the supervision of offenders in order to target correctional resources. Supervising offenders based on the results of risk and need assessments by providing more supervision for high risk/high need offenders is one example. Preliminary results are encouraging, with incarceration rates for the FY 2010/11 sample lower than those found for the FY 2008/09 sample, even with only a portion of the follow-up period post-JRA implementation. In closing, she noted that for the Commission’s next (2016) recidivism report the entire probation sample would be convicted and sentenced under the JRA with supervision subject to the provisions of the JRA. Additional outcome measures will be included, such as confinement in response to violation (CRV) and quick dip confinement. Staff plans also include site visits in the field similar to those conducted in 2013 to see whether and how practices have changed as the JRA implementation has progressed, and field practitioners have developed a more comprehensive understanding of the JRA.

Senator McKissick raised the question of using two-year versus three-year follow-up

periods for recidivism. Ms. Hevener responded that it varies; however, the three-year follow-up is generally the more common interval. She explained that the recidivism reports provide recidivism rates at one-, two-, and three-year intervals. The two-year follow-up is beneficial as a baseline to compare to future JRA samples. Senator McKissick then asked if this particular period being looked at has mixed results due to JRA. Ms. Hevener responded that the current sample is not a true evaluation of JRA because not enough of the follow-up period for many of the offenders was under the JRA. Ms. Katzenelson added that with JRA still not fully implemented, the current sample is a comparative baseline as the state transitions. Senator McKissick then asked if the state is really two years away from seeing the true impact of JRA. Ms. Katzenelson responded that as far as probation is concerned, definitely; as far as low level felons are concerned, probably; but it will probably take two more cycles before the impact on prisoners is available.

Mr. Fialko asked if there was any distinguishing between people who went to prison

compared to those with an intensive intermediate punishment (e.g., split sentences). Ms. Hevener answered that staff did not focus on that for this particular study, but it could be a focus in future reports. Senator McKissick asked if it was possible to know the type of recidivist offense committed by the offenders with a conviction that requires registering as a sex offender – if the recidivist offense was a sex offense as well. Ms. Flinchum responded that only the type of recidivist offense (i.e., violent, property, drug, other) is known. Mr. Beeler responded to Senator McKissick by stating that nationwide data, which is limited, demonstrates that when sex offenders are rearrested they typically are not rearrested for a sex offense but for a property offense or something similar. Mr. Beeler mentioned that it would be interesting

to further study the recidivism of sex offenders by examining the type of recidivist offenses they commit. Ms. Katzenelson added that sex offenders are also supervised more than other offenders.

Mr. Beeler acknowledged the hard work of staff and summarized his conclusions from

the report that education, especially for offenders, is extremely important. The RAND Study in 2012 demonstrates that education, vocational and academic, has an impact of up to 40% on the rates of recidivism. He mentioned the continued challenges faced by maintaining prison education programs, especially due to the fiscal issues that the state faces. If prisoners have some education, it increases their chances of becoming law abiding citizens. Mr. Beeler also mentioned the importance of the needs part of the risk and need assessments.

Senator McKissick followed Mr. Beeler’s comments by asking for staff to compile a

laundry list of what has been done in other jurisdictions that could help with this need. He asked at what point is intervention needed to bring about change. Louise Davis reported that she heard on NPR that of all the industrialized nations in the world, the US financial support of education is the lowest for poor neighborhoods. Chairman Spainhour commented that it is very unusual to have offenders with high school diplomas appear before him and almost non-existent for those with a year or so of technical school. Senator McKissick referenced a study that reported that if a child is not reading by the 3rd grade, then he/she will drop out of high school, implying the time to intervene is earlier. Mr. Sanders commented on previous Sentencing Commission studies that reported a higher incidence of recidivism among younger prisoners who obtained their GED while in prison. One program that demonstrated lower recidivism rates was work release during imprisonment. Overall, Mr. Sanders pointed out that the cause and effect part of the situation is what makes it difficult to effect impactful changes in the area of recidivism. Senator McKissick commented that when prisoners are released, they have a record which disqualifies them from employment.

Ilona Kusa raised the issue of the availability of substance abuse treatment. Chairman

Spainhour commented that most of the probationers have to attend some type of drug treatment. Dr. McMurray added that the academic community should become more involved to help identify these issues. Ms. Katzenelson offered for the Commission staff to compile a list of the most common themes from Commission reports to provide to the Commissioners.

LEGISLATIVE REVIEW

Chairman Spainhour recognized John Madler to present the 2014 Legislative Session Update (see handout).

Mr. Madler began by presenting ratified bills that contained criminal provisions (House Bill (HB) 1050, Omnibus Tax Law Changes, Senate Bill (SB) 786, Energy Modernizing Act) and a bill of interest to the Commission that was still being considered (HB 725, Young Offenders Rehabilitation Act). He then turned to the proposed budget bills. Mr. Madler explained that the General Assembly had not passed a budget yet but that the Governor, the Senate, and the

House had each presented their version of the budget (SB 842/HB 1208, Governors Budget; SB 744 3rd Ed., Senate Budget; SB 744 5th Ed., House Budget). The House and the Senate would work out a compromise in a conference committee. Mr. Madler reviewed the proposed appropriations and relevant special provisions for the Judicial Branch, Indigent Defense Services, the Department of Justice, and the Department of Public Safety. He highlighted three special provisions that were in all three proposed budgets: the first would place all misdemeanants, including those convicted of driving while impaired (DWI), in county jails rather than the Division of Adult Correction; the second would establish two stand-alone Confinement in Response to Violation (CRV) facilities; and the third would amend the CRV statute to apply all credit for time served to the suspended sentence and not to the CRV period.

Mr. Madler then presented a letter the Commission received from the Conference of District Attorneys (see handout). The Conference expressed their concern over the manner in which CRV periods are credited to consecutive sentences upon revocation of probation. They were aware that the Commission was studying this issue and others related to CRVs and expressed their support for the Commission’s efforts and any recommendations it might develop. The Conference also mentioned Advanced Supervised Release (ASR) and their recommendation that it be eliminated as an option within the sentencing structure. Mr. Madler explained that the Justice Reinvestment Subcommittee will consider these issues as part of its ongoing mandate.

Chris Fialko asked if anyone was receiving Advanced Supervised Release as part of their sentence. Ginny Hevener responded that there were approximately 80 or 90 offenders in prison in calendar year 2013 who received an ASR sentence. Mr. Madler added that ASR is contingent upon the approval of the District Attorney (DA) and that when staff conducted field visits, they found that some DA offices had a policy of never approving it.

Regarding sentencing all misdemeanants to the county jails, Tommy Thompson asked how staff would be able to collect the data that is necessary for the recidivism report and other reports on these offenders since each sheriff has a different way of keeping information. He also questioned how some counties would afford housing the additional misdemeanants. John Madler explained that the additional misdemeanants would be sentenced to the Statewide Misdemeanant Confinement Program (SMCP). The SMCP would place misdemeanants in participating counties that have agreed to provide beds and would reimburse the counties for the costs. Ginny Hevener told the Commissioners that there is no statewide automated jail data system and that is a serious problem in terms of capturing information on incarceration or confinement during follow-up periods. Staff received a data extract from CJLEADS and is looking to see whether that will provide the information needed. Susan Katzenelson pointed out that the Recidivism Study looks at offenders who are released from prison and, if the bill passes, there will not be any misdemeanants in prison. As a result, those misdemeanants would no longer be in the recidivism sample. Staff will have to explore what is available for jail data and how to use that information. Mr. Thompson asked what the effective date was for this proposal. Mr. Madler responded that it would apply to misdemeanor offenders beginning on October 1, 2014, and DWI offenders beginning on January 1, 2015. Mr. Thompson pointed out

that most of the counties will have already passed their budget and the Sheriffs’ budget by the time this issue is settled. Mr. Beeler added that this change may bring the county jails under review by the Prison Rape Elimination Act as well, something the sheriffs have resisted so far.

George Pettigrew explained that the proposal is to move the misdemeanants from the Division of Adult Correction (DAC) to the SMCP. The SMCP has approximately 1,000 beds available across the state and has excess funding. The DAC has also been meeting with the Sheriffs’ Association regarding DWI offenders getting assessments and treatment in the county jails. The Sheriffs’ Association is looking at 10 or 12 locations where they already have treatment available and whether these new offenders could be housed there.

Rebecca Wood reminded the Commissioners that the Credit for Time Served Subcommittee was looking at jail data collection system issues.

Turning to the legislative review, Mr. Madler told the Commission members of their statutory duty to review bills that have been introduced that either create a criminal offense, change the class of an existing offense, or change a punishment, and to make recommendations back to the General Assembly. He further explained that when dealing with a new criminal offense or a change of classification, the question is whether the proposal is either consistent or inconsistent with the offense classification criteria. When dealing with a punishment change, the question is whether the proposal is consistent or inconsistent with structured sentencing and with the elements of the structure itself. Mr. Madler then reviewed the policies previously established by the Commission. He introduced Sara Perdue for presentation of the Senate bills and Rebecca Wood who would subsequently present the House bills.

Sara Perdue presented the Senate bills for review.

SB 744 – Appropriations Act of 2014 [Ed. 3] (G.S. § 14-269). Proposed Class H felony (second or subsequent offense). Sara Perdue reviewed the proposal to make second and subsequent violations a Class H Felony and reminded the Commission that, pursuant to the Legislative Review policies they previously established, the provision is inconsistent with the Offense Classification Criteria because the Structured Sentencing punishment chart takes a defendant’s prior record into account through the Prior Record Level. Increasing the offense class based on prior convictions is inconsistent with structured sentencing.

SB 819/HB 1169 – Update/Midwifery Practice Act [Ed.1]

(G.S. § 90-18.7 (a)). Judge Elmore moved to find the proposed Class I felony provision consistent with the Offense Classification Criteria and Senator McKissick seconded the motion; motion carried.

(G.S. § 90-18.7 (a)(cont’d)). Senator McKissick moved to find the proposed Class I felony provision consistent with the Offense Classification Criteria and Judge Elmore seconded the motion; motion carried.

(G.S. § 90-178.7(b)). Senator McKissick moved to find the proposed Class I felony provision consistent with the Offense Classification Criteria and Mr. Thompson seconded the motion; motion carried.

SB 842 – Governor’s Budget [Ed.1]

(G.S. § 14-258.1 (d)). Mr. Beeler moved to find the proposed Class F felony provision consistent with the Offense Classification Criteria and Ms. Krueger seconded the motion; motion carried.

(G.S. § 14-258.1 (e)). Mr. Beeler moved to find the proposed Class F felony provision consistent with the Offense Classification Criteria and Senator McKissick seconded the motion; motion carried.

(G.S. § 14-16.6 (a)). Mr. Fialko moved to find the proposed Class E felony provision inconsistent with the Offense Classification Criteria and Mr. Sanders seconded the motion; motion carried. Senator McKissick moved to recommend it would be consistent with the Offense Classification Criteria for a Class F felony or a Class H felony and Chief Cunningham seconded the motion; motion carried.

(G.S. § 14-16.6 (a) (cont’d)). Mr. Sanders moved to find the proposed Class E felony provision inconsistent with the Offense Classification Criteria and Mr. Fialko seconded the motion; motion carried. Senator McKissick moved to recommend it would be consistent with the Offense Classification Criteria for a Class F felony or a Class H felony and Mr. Thompson seconded the motion; motion carried.

(G.S. § 14-16.6 (b). Senator McKissick moved to find the proposed Class D felony provision consistent with the Offense Classification Criteria and Ms. Krueger seconded the motion; motion carried.

(G.S. § 14-16.6 (b) (cont’d)). Senator McKissick moved to find the proposed Class D felony provision consistent with the Offense Classification Criteria and Ms. Krueger seconded the motion; motion carried.

(G.S. § 14-16.6 (c). Mr. Sanders moved to find the proposed Class C felony provision inconsistent with the Offense Classification Criteria, and recommended that it would be consistent with the Offense Classification Criteria for a Class E felony; Judge Morrison seconded the motion and the motion carried.

(G.S. § 14-16.6 (c) (cont’d)). Mr. Sanders moved to find the proposed Class C felony provision inconsistent with the Offense Classification Criteria. Judge Morrison seconded the motion and the motion carried. Mr. Sanders moved to recommend it would be consistent with the Offense Classification Criteria for a Class E felony. Senator McKissick seconded the motion and the motion carried.

(G.S. § 14-16.7 (a)). Mr. Sanders moved to find the proposed Class F felony provision inconsistent with the Classification Criteria. Judge Morrison seconded the motion and the motion carried. Mr. Sanders moved to recommend that it would be consistent with the Offense Classification Criteria for a Class H felony. Judge Morrison seconded the motion and the motion carried.

(G.S. § 14-16.7 (a)). Judge Brown moved to find the proposed Class F felony provision inconsistent with the Offense Classification Criteria and recommended that it would be consistent with the Offense Classification Criteria for a Class H felony. Senator McKissick seconded the motion and the motion carried.

(G.S. § 14-16.7 (b)). Mr. Sanders moved to find the proposed Class F felony provision inconsistent with the Classification Criteria and recommended that it would be consistent with the Offense Classification Criteria for a Class H felony. Judge Brown seconded the motion and the motion carried.

(G.S. § 14-16.7 (b)). Judge Brown moved to find the proposed Class F felony provision inconsistent with the Offense Classification Criteria and recommended that it would be consistent with the Offense Classification Criteria for a Class H felony. Senator McKissick seconded the motion and the motion carried.

Sara Perdue then instructed the Commissioners to remove page 15 of the handout and replace that with page 1 and 2 of the insert provided which contained the following two provisions for review.

(G.S. § 14-16.7 (b)). Mr. Sanders moved to find the proposed Class F felony provision inconsistent with the Offense Classification Criteria for a Class F felony and recommended that it would be consistent with the Offense Classification Criteria for a Class H felony. Judge Brown seconded the motion and the motion carried.

(G.S. § 14-16.7 (b)). Mr. Sanders moved to find the proposed offense inconsistent with the Offense Classification Criteria for a Class F felony and recommended that it would be consistent with the Offense Classification Criteria for a Class H felony. Judge Brown seconded the motion and the motion carried.

Rebecca Wood presented the following House Bills.

HB 1059 – Venus Flytrap Taking Penalty/Occup. Tax Use.

Judge Elmore moved to find the proposed Class H provision consistent with the Offense Classification Criteria but the motion died for lack of a second. Senator McKissick moved to find the provision inconsistent with the Offense Classification Criteria and Mr. Sanders seconded the motion; motion carried.

Maureen Kruger pointed out that the Venus Flytrap is an endangered species that only grows in certain parts of the country. She suggested that, in the future, the Commission may

need to consider how the Offense Classification Criteria can address sensitive environmental issues.

HB 1099 – Unmanned Aircraft Regulation.

(G.S. § 14-280.3) Mr. Sanders moved to find the proposed Class H felony provision consistent with the Offense Classification Criteria and Senator McKissick seconded the motion; motion carried.

(G.S. § 14-401.24) Senator McKissick moved to find the proposed Class I felony provision consistent with the Offense Classification Criteria and Mr. Sanders seconded the motion; motion carried.

CONFINEMENT IN RESPONSE TO VIOLATION (CRV) PILOT PROJECT UPDATE

Chairman Spainhour recognized George Pettigrew, the Justice Reinvestment Administrator with the Department of Public Safety, to provide an update on the CRV pilot project. Mr. Pettigrew began by explaining that the CRV was a part of the Justice Reinvestment Act, intended to reduce the number of technical probation revocations. This program allows the State to respond to technical violations with shorter periods of confinement: up to 90 days for misdemeanants and 90 days for felons.

Offenders with CRVs are currently housed in designated prison units after a condensed diagnostic intake process. The limited programming that is available includes brief intervention tools, substance abuse education, job readiness (workshops/sessions), interactive journaling, and GED registration. The DAC has learned that the current process works well for youth males and females because they stay at the same facility as the diagnostic intake, but not quite as well for adult males because they are housed at various facilities. This prevents units from filling full-time program and job assignments and affects programming availability and effectiveness.

Mr. Pettigrew then presented the DAC proposal to designate a single facility for adult male CRVs, where they could stay after diagnosis intake. The DAC had considered developing a CRV Center pilot program in Johnston Correctional Institution. All adult male CRV offenders would have been housed at one facility as opposed to being mixed with regular inmate populations, with programming to include alcoholism and chemical dependency programs, as well as classes through Johnston County Community College. However, the DAC identified several barriers to the project including continued (though minimized) contact with regular inmates, inadequate classroom space for CRV population, and the requirement for a large investment of funds to correct these barriers. In light of these issues, the DAC decided not to continue with this pilot program.

Mr. Pettigrew then explained the current proposal for two stand-alone CRV centers, one in Burke County and one in Robeson County. Additional funding would be required to reopen the two closed prison facilities and convert them to CRV centers, but the proposal is included in

the Governor’s budget as well as the House and Senate budgets. The next steps for the DAC include site visits and a review of other states’ facilities.

Mr. Pettigrew then addressed issues related to applying credit to CRV periods. He reviewed the current statute and explained that it results in a majority of CRV periods being less than 90 days, limiting the opportunity for programming. The DAC has submitted a legislative proposal to change the statute and not allow CRV periods to be reduced by time served awaiting violation hearings. This legislation would apply to all probation violations occurring on or after October 1, 2014.

Chairman Spainhour asked if there is no appeal from the imposition of a CRV. Jamie Markham stated that the Court of Appeals has said that is correct but that they did not rule on whether that would be the case if it were a terminal CRV.

Art Beeler mentioned how important the staff training aspect was for this change. He referenced the Community Reintegration Centers in Ohio and how their biggest issue has been the cultural shift for the officers to deal with the dichotomy between custody and treatment. Mr. Pettigrew credited George Solomon, the Director of Prisons, with emphasizing the need for staff to understand what the mission is and that they are on board with that mission.

Mr. Pettigrew stated how excited they were about the involvement of probation staff in the CRV centers. They hope to have the referral process in place to match offenders to community resources two weeks before they leave the facility. Mr. Beeler asked if they were going to link offenders back to substance abuse treatment in the community. He expressed concern about there not being enough time in the CRV center for treatment to stick. Mr. Pettigrew responded that they see the CRV as a time to take the offender out of their environment to try to get their mindset and attitude straight, and to give them some skills. He agreed that to continue that with the resources out in the field is important. He added that DAC will have officers on site with one-on-one interactions using the same tools the officers are using in the field, so there will be continuity there as well.

Mr. Beeler asked what the DAC was planning to do with misdemeanants who receive CRVs, especially if they will all be going to the county jail. Mr. Pettigrew responded that the Division has had discussions with the Statewide Misdemeanant Confinement Program (SMCP) staff regarding different treatment options. He pointed out that there are vendors working in the counties now through the Treatment for Effective Community Supervision (TECS) program that conduct programming; counties could tap into these resources. In addition, the DAC has been talking with SMCP staff regarding the DWI population. The SMCP staff identified 10 or 12 jails that already have treatment options for DWI offenders; they are considering whether the additional population could be sent to these facilities. Mr. Beeler reiterated his concern that county jails do not always have programming and that they have a different mindset regarding programming. He questioned how it was going to work for misdemeanants.

Mr. Guice responded to the Commission’s concerns. Regarding shifting misdemeanants to the county jails, he reminded the Commissioners that the DAC had originally projected a

need for 1,400 beds in the SMCP but that the actual population has only been around 650 offenders, including about 15 serving CRVs; there is space available for the additional misdemeanants. Regarding DWI offenders, Mr. Guice explained that the SMCP funds are not only for housing but also for transportation, medical costs, and treatment. It is not clear yet what that treatment will look like but he admitted that the State is not doing much for those offenders currently. He stated that, overall, freeing up those beds in the state system allows the DAC to close two facilities and redo a third facility, saving an enormous amount of money. In turn, the House and the Senate have proposed appropriating money to the DAC for innovations like the CRV centers.

Mr. Guice told the members that getting the treatment period to 90 days is something that the DAC has worked hard on and, while it is probably not enough, it is better than an average of 64 days offenders are currently serving on CRVs. The proposal does not deal with misdemeanants on CRVs because the population is smaller and the sentences are shorter, but the DAC is prepared to address that as they move forward. He reminded the members that if the SMCP is full or does not have sufficient funding, the statutes provide that the misdemeanants will go back to the state system.

JUSTICE REINVESTMENT IMPLEMENTATION REPORT SUBCOMMITTEE – 2014 REPORT

Chairman Spainhour recognized Judge Brown to provide an update from the Justice Reinvestment Implementation Report Subcommittee. Judge Brown thanked Commissioners and staff for their work on behalf of the Subcommittee. He then provided background on the JRA. The JRA passed in June of 2011 and included a mandate to the Sentencing Commission and the Division of Adult Corrections to jointly conduct ongoing evaluations of the implementation of JRA. The Commission created the Justice Reinvestment Implementation Report Subcommittee in response to the mandate with the purpose of gathering information, reviewing data where available, and reporting to the Commission any recommendations regarding implementation of the JRA. The third annual report was submitted to the Legislature in April, 2014.

Judge Brown described the contents of the 2014 report which included details on policy refinements made by agencies; emerging practices based on interviews conducted by staff with field practitioners; and implementation data. Judge Brown noted implementation data is still very much lacking but the report includes a full calendar year of data.

Judge Brown noted the overarching goals of JRA were to increase public safety through offender behavioral change induced by quick reactions to technical violations, and to improve rehabilitation through targeted services and programming for offenders. He explained that while it is too early to evaluate long term JRA outcomes such as reduced recidivism, the interviews staff conducted provided a snapshot of current implementation efforts. Information obtained from the interviews provided context for the current report and future reports and will also help with the interpretation of data. Results from the interviews across the state suggest the current stage of implementation can be defined by the creative use of some JRA provisions and modification of practices in light of new JRA tools.

Judge Brown explained that some emerging practices may result in unanticipated savings that conflict with some of the primary goals of JRA. He gave the example of the terminal CRV, which may reduce the probation population but conflict with the rehabilitative mission of the JRA. He also noted some JRA provisions are not having much impact at this stage, including ASR and delegated authority.

Mr. Pettigrew responded that the use of delegated authority, particularly quick dips, has continued to grow. He noted that some of the delegated authorities that officers have always had are starting to see more use as well, though the Department has more work to do with staff in terms of training and emphasis. Judge Brown iterated the importance of saturation of information to those in the field to ensure they are fully informed of how to utilize delegated authority.

Mr. Pettigrew noted that in some districts, judges were indicating they were not allowing delegated authority. Judge Brown inquired how the Department was dealing with those types of situations. Mr. Pettigrew responded that they continue to work with officers and stakeholders to provide information.

Judge Brown noted that delegated authority included more than just quick dips and said that in his district, the utilization of TECS has been increasing.

Mr. Guice commented that the Department continues to work with judges around the state. He referenced some information the Department has been working on regarding quick dips and noted they can now drill down to figure out when the quick dips are most effective and how they impact the completion of supervision.

Judge Brown turned to discuss the prospect of misdemeanants moving to local jails. He noted that this issue overlaps with discussions the JRA Subcommittee and the Commission has had at prior meetings about using the SMCP to fund rehabilitative programs for misdemeanants sentenced to the program. If the program was to be responsible for all misdemeanants (including DWI offenders), this would potentially strain available funding for rehabilitation. Mr. Guice responded that when the funding stream was created, everyone knew there might be a need for future adjustments. He noted that in his conversations with legislative members, they are prepared for making adjustments to the funding. He added that North Carolina was one of two or three states that still houses misdemeanants in prison. Shifting that population to the local jails allows the Department to do better business. He noted that beds to house all misdemeanants are available through the SMCP; however, the key is making sure the treatment needs are also addressed. He noted the Department is in regular contact with the Sheriffs’ Association on these issues. Discussion ensued about bed availability.

Judge Brown then turned to the data portion of the report. The data included offers the first look at changes in the system. He explained that some anticipated effects of the JRA have been realized at this stage, most notably the decline in revocations of probation. Other effects will continue to be monitored over time including the effects of the JRA on certain outcomes (chiefly recidivism), effectiveness of new tools in rehabilitating offenders, and the impact of the JRA on the prison and community supervision population. He noted it is important to recognize that these data only reflect evolving JRA practices during the early stages of implementation;

that is significant. The first wave of new cases under a new sentencing scheme is not necessarily representative of practices that will occur in the future. It is very much a work in progress.

He explained it is also important to recognize that during the time period being examined, field practitioners were still learning to use the new tools as well as how to capture the information in the automated systems. Changes in the community corrections population and prison population will continue to be monitored; particularly the impact of the PRS population on caseloads and the community supervision and prison population.

Judge Brown noted that to fully measure the impact of JRA on the emerging sentencing and correctional practices, the collection of empirical data is critical. Data will allow for the continued examination of the use of new tools available under JRA, as well as an analysis of the impact of those tools on outcome measures such as prison utilization and recidivism. The development of a statewide automated database for jails is another critical component in measuring the impact of the JRA, which was also highlighted earlier in the meeting. Without both agency data and statewide jail data the examination of the full impact of the JRA on the criminal justice system of North Carolina will be incomplete.

He continued, noting that one of the more difficult aspects of JRA is to monitor its savings being reinvested due to the changes under the law. The JRA’s purpose was to save correctional resources by limiting the use of prisons in certain circumstances and reduce recidivism while continually reinvesting those savings into programming. The Subcommittee expressed concerns about effective ways to track the money saved by JRA provisions and the way those savings are being reinvested. The Subcommittee sees it as part of its duty when giving reports on implementation to include savings and expenditures that were reinvested. An effective way to monitor savings and investment of funds into programming is a critical component of measuring JRA’s success.

Judge Brown concluded his update by noting that the report was submitted to the Legislature on time in April. The Commission has the ability to make recommendations to the Legislature regarding the JRA at any time, and the Subcommittee will continue its work, including the study of issues that were raised earlier in the meeting, and as called upon by the Commission.

Chairman Spainhour informed the members that the next full Commission meeting is September 5.

The meeting adjourned at 2:04 p.m.

Respectfully submitted,

Susan Katzenelson Executive Director

North Carolina Judicial Center Board Room

Raleigh, NC

September 5, 2014

AGENDA

Welcome and introduction of new staff

Review agenda

Adoption of minutes from the June 13, 2014 meeting

10:15 – 11:15 REVIEW OF THE 2014 LEGISLATIVE SESSION

Rebecca Wood, John Madler, staff

11:15 – 11:45 UPDATE ON CORRECTIONAL AND DELINQUENT

POPULATIONS

Ginny Hevener, staff

11:45 – 12:30 RESEARCH BRIEFS

Tamara Flinchum, Jennifer Wesoloski, Michelle Hall, staff

12:30 – 1:00 LUNCH

1:00 – 3:30 AGENCY UPDATES

CRV CENTERS – Anne Precythe, George Solomon, Nicole Sullivan,

NC DPS, Division of Adult Correction and Juvenile Justice

STATEWIDE MISDEMEANANT CONFINEMENT PROGRAM – Keenon

James, NC Sheriffs’ Association

JUVENILE JUSTICE – William Lassiter, NC DPS, Division of Adult

Correction and Juvenile Justice

3:30 ADJOURN

COMMISSION MEETING

September 5, 2014

The North Carolina Sentencing and Policy Advisory Commission met on Friday, September 5, 2014, at the North Carolina Judicial Center in Raleigh, North Carolina. Members Present: Chairman W. Erwin Spainhour, Art Beeler, Paul Butler, Robert Campbell, Sheriff James Clemmons, Chief Scott Cunningham, Louise Davis, Honorable Richard Elmore, Honorable Robert Ervin, Honorable John Faircloth, Chris Fialko, David Guice, Ilona Kusa, Honorable Floyd McKissick, Luther Moore, Honorable Fred Morrison, Billy Sanders, Keith Shannon, Honorable Thomas Thompson. Guests: Justin Allen (Extern for North Carolina Office for Administrative Hearings), Jamie Lassiter (Representative Stam’s Office), Christine Leggett (Fiscal Research, General Assembly), Lisa Fox (Fiscal Research, General Assembly), John Poteat (Fiscal Research, General Assembly), William Childs (Fiscal Research, General Assembly), Tracy Little (Office of State Budget and Management), Anne Precythe (North Carolina Department of Public Safety), George Solomon (North Carolina Department of Public Safety), Nicole Sullivan (North Carolina Department of Public Safety), William Lassiter (North Carolina Department of Public Safety), Keenon James (North Carolina Sheriffs’ Association), Andrew Cagle (North Carolina Sheriffs’ Association), Yolanda Woodhouse (AOC Court Programs), Eric Zogry (Office of Juvenile Defender). Staff: Susan Katzenelson, Ginny Hevener, John Madler, Tamara Flinchum, Michelle Hall, Mark Bodkin, Jennifer Wesoloski, and Rebecca Wood.

INTRODUCTION

Chairman Spainhour called the meeting to order at 10:00 a.m. He introduced new staff member Mark Bodkin. Members and visitors introduced themselves. After Chairman Spainhour reviewed the agenda for the meeting, Luther Moore moved to adopt the minutes from the June 13, 2014, meeting; the motion was seconded and carried.

REVIEW OF THE 2014 LEGISLATIVE SESSION

Rebecca Wood presented the Criminal and Juvenile Bills ratified during the 2014 Session of the General Assembly (see handout). She began by summarizing the results of the Commission’s annual review of proposed legislation pursuant to G.S. 164-43. During the 2014 Session, the General Assembly enacted 7 felony provisions, 2 of which the Commission reviewed. The Commission found one provision to be consistent with the Offense Classification Criteria and the other provision to be inconsistent with the Criteria; it did not recommend an alternative offense classification for the second provision. The Commission was not able to

review the 5 remaining felony provisions in their final form because they were amended after the review date.

Ms. Wood reviewed the felony bills that created new criminal offenses, changed the elements of the existing offenses, and made changes to the classification of existing offenses. There were no bills that changed punishments this session.

Regarding House Bill 369, Criminal Law Changes, Art Beeler pointed out that the federal

prison in Butner is under concurrent jurisdiction so some of the cases involving inmates with cell phones may be brought under the new offense in state court.

Ms. Wood then highlighted some of the misdemeanor bills that created new criminal

offenses or changed the elements of existing offenses, or made changes to the classification of existing offenses. There were no bills that changed punishments this session.

One of the bills addressed was House Bill 1145, Registration for Mopeds. Thomas

Thompson asked if a moped would be required to have a license plate and if the owner must then pay property tax on it. Ms. Wood responded that the bill does not directly address that. Senator McKissick explained that this change will help law enforcement identify a moped in case it is stolen or used in a crime. It will also allow the State to ensure that mopeds used on public streets meet certain minimum standards.

Ms. Wood reviewed several bills of interest to the Commission. Returning to House Bill

369, Ms. Wood highlighted the new conditional discharge provisions created under the bill. Judge Ervin asked if the conditional discharge could be done post-sentencing and Mr. Beeler asked if defense counsel would be able to come back after the defendant failed on probation and make a motion to place the defendant in a conditional discharge program. Ms. Wood responded that a conditional discharge was entered into at the sentencing phase, after the defendant has been found guilty or entered a guilty plea, and that the language did not address the ability to amend a judgment to allow for a conditional discharge option post plea. She pointed out that it does not create a right to a conditional discharge; it is discretionary. Senator McKissick explained that this provision was originally set up to replace deferred prosecution but that he convinced the sponsor to make it an additional option.

Robert Campbell asked if the conditional discharge statute required that the defendant be

placed on supervised probation. Ms. Wood responded that it did not specify supervised probation, only that the defendant be placed on probation. Mr. Campbell then asked if the charge could be expunged as a dismissed charge if the defendant successfully completes probation. Senator McKissick responded that they did not address that issue but that he believed that was correct. Ms. Wood added that the statute requires the court to discharge the person and dismiss the proceedings against them, thereby making it a dismissed charge.

John Madler gave an overview of the relevant provisions enacted in Senate Bill 744, the Appropriations Act of 2014 (see handout). He mentioned several cuts as well as expansions in the Judicial Department, the Department of Justice, and the Department of Public Safety. In particular, Mr. Madler pointed out that the legislature changed the place of confinement for

misdemeanants with sentences longer than 180 days and offenders convicted of impaired driving. Beginning October 1, 2014, courts will sentence these offenders to the Statewide Misdemeanant Confinement Program (SMCP) instead of the state prison system. Under the SMCP, the offenders will be placed in those county jails that have additional beds and have volunteered to make them available to the Program. The SMCP will reimburse the jails for the costs associated with housing the offenders.

Mr. Campbell asked if these changes affected where offenders served split sentences. Mr.

Madler explained that felons would serve split sentences in either a state prison or a local jail while misdemeanants would serve split sentences in a local jail.

Mr. Madler also reviewed changes the legislature made regarding the period of

confinement in response to probation violations (CRV). First, the legislature appropriated funds for two CRV centers. The first one, in Burke County, should be available in October, 2014, and the second one, in Robeson County, should be available in February, 2015. Second, the legislature amended the CRV statute to require that the CRV period not be reduced by credit for time already served in the case. Any such credit should be applied to the suspended sentence. Mr. Madler pointed out that this was an issue the Commission had discussed prior to the creation of the CRV centers.

Chris Fialko asked if the legislature discussed the constitutionality of the prohibition on

credit for time served against the CRV period. Mr. Madler responded that it was not discussed in any legislative meeting. Judge Spainhour pointed out that the offender would still get the credit if probation was later revoked. Commissioner Guice added that offenders serving CRVs were still on probation, their probation was not revoked.

Billy Sanders asked if that change addressed the issue of terminal CRVs. Commissioner Guice explained that terminal CRVs were a separate issue and that this change did not address it.

Mr. Beeler asked if misdemeanants who received CRVs were being placed in facilities

where treatment was available. Commissioner Guice responded that they were not but that it was a small population. He added that Anne Precythe could address that question in her presentation in the afternoon. Susan Katzenelson added that the Commission has a statutory duty to evaluate the effectiveness of the elements of the Justice Reinvestment Act and that terminal CRVs would be one aspect they can study.

UPDATE ON CORRECTIONAL AND DELINQUENT POPULATIONS

Ginny Hevener presented an update on correctional and delinquent populations. As part of this update, Ms. Hevener summarized the potential impact of the bills ratified during the short session. The Sentencing Commission is legislatively mandated to provide impact projections for each bill that affects criminal penalties or juvenile justice. Ms. Hevener noted that this mandate relates directly to one of the key principles of Structured Sentencing – that sentencing policies should be balanced with correctional resources. Sentencing Commission staff prepared 17 impact projections during the session. The impact projections include an estimate of the number of prison beds (criminal justice) or youth development center beds (juvenile justice) affected by the

proposed bill. Depending on the availability of data relating to the proposed change, the impact projections are produced either by using the Commission’s computerized simulation model (information available) or using threshold estimates for each offense class (no information available). A threshold estimate is a projection that is based on the number of convictions that it would take to create the need for one additional prison bed in the first year. During the legislative session, a total of 6 felony offenses and 15 misdemeanor offenses were created; 1 felony offense was reclassified. Ms. Hevener stated that there are no hard numbers on the prison impact of the criminal bills from this past session because the majority of changes involved the creation of new offenses for which no historical data are available. The greatest potential for prison impact from this legislative session comes from the provisions in the budget bill that change the confinement location for misdemeanants and DWI offenders from prison to local jails through the Statewide Misdemeanant Confinement Program.

Ms. Hevener continued with an update on the prison population (see attached handout). The projections were developed using FY 2013 data on convictions and sentences imposed, along with data on all offenders in prison at the beginning of the projection period. Ms. Hevener reminded Commissioners that FY 2013 is the first full year of data since the provisions of the Justice Reinvestment Act (JRA) went into effect and, as a result, are not necessarily representative of future practices. The average prison population for June 2014 was 37,731 compared to the projected population of 37,679 (a difference of less than 1%). The prison population is currently lower than prison capacity, with this trend projected to continue based on current data. Ms. Hevener noted that the current projections for June 2015 through June 2023 do not take into account the change in confinement location for the misdemeanants and DWI offenders previously discussed, but that the new projections, which should be completed in time for the long session, would.

Ms. Hevener also reviewed a graph depicting prison population trends from July 2003

through July 2014. After years of growth, the prison population growth slowed as a result of decreases in criminal justice trends (such as arrests and convictions) and then declined further with changes to the felony punishment chart, with the most significant declines coming with the enactment of the JRA. The prison population is currently around 2006 levels. Another decline in the prison population is expected with misdemeanants and DWI offenders no longer going to prison, but to the Statewide Misdemeanant Confinement Program.

Judge Erwin asked what the prison population was in December 2011. Ms. Hevener

responded she would get that information over the meeting break. After lunch, she reported that the average population was 39,954 for that time period. Commissioner Guice reminded Commissioners that in 2009 56% of new admissions to prison were for technical violators. He also mentioned that in 2011 the Statewide Misdemeanant Confinement Program population was estimated at 1,400 but actual population has been between 600 and 800, that locally people started sentencing people differently. Susan Katzenelson added that the projections are updated annually because of changes in policies and practices, that if the model and data are not updated then the projections will be incorrect. Art Beeler asked about the frequency of CRVs for post-release supervision. Ms. Hevener noted that the most recent information available was from the 2014 JRA report and would be updated for the next report. The PRS population has increased as

a result of the expansion to the lower offense classes, such as Class H and I felons. Paul Butler responded that they are doing about 12 violations per week.

Ms. Hevener also presented an update on the youth development center population (see attached handout). This population contains all adjudicated juveniles with a level 3 disposition – whether in a youth development center (YDC), awaiting placement in an YDC, or a community-based placement. The projections were developed using data on delinquent dispositions from FY 2013 and data on the juveniles who were committed to a YDC as of July 1, 2013. The projection for the end of FY 2014 is 251, and remains stable over the five-year projection. Ms. Hevener reviewed a graph depicting YDC population trends from July 2005 through July 2014. Like the adult prison population, the YDC population has also been decreasing over the past few years as the result of similar population and juvenile justice trends. The projected YDC population for June 2014 was 251 compared to the actual average population of 243, a difference of 8 or 3%. Staff has started working with the Department of Public Safety on the next projections and hopes to have updated projections by the end of this year.

RESEARCH BRIEFS

Ginny Hevener mentioned that the research team had recently completed several short papers that they will be presenting today. These publications are intended as supplements to our mandates reports, as a way to provide more information that may be of interest to the Commission, other state agencies, researchers, and the general public.

Tamara Flinchum presented findings from two research briefs using data from the 2012 and 2014 recidivism studies. Commissioners were given a copy of both briefs. The first brief, titled Increase in Misdemeanor Fingerprinted Arrests, provided updated recidivist arrest and conviction rates for the sample published in the 2012 study. Ms. Flinchum reported that the recidivism rates for NC have been very stable; however, a significant increase occurred for rearrest rates beginning with the 2012 study. The primary explanation for the increase points to changes in reporting practices by law enforcement agencies. The use of automated fingerprint technology has led to a greater number of misdemeanor arrests being fingerprinted. As a result of this technology, a more accurate and higher rate of misdemeanor arrests are now reported, which in turn increased the number and proportion of offenders who are categorized as “recidivists” in the Commission’s recidivism studies. This recidivism increase was due to policy changes in fingerprinting arrests – not due to changes in criminal behavior – so if any policy changes occur to fingerprinted arrests in the future, it can affect the recidivism numbers by either increasing or decreasing them. In an effort to report misdemeanor recidivist arrests consistently across the state in the 2012 recidivism study, Class 2 and 3 misdemeanors were excluded from the analysis. Ms. Flinchum explained that the methodological change occurred prior to the realization that more law enforcement agencies were fingerprinting more misdemeanor arrests. The brief provides prior and recidivist arrest rates and recidivist conviction rates with the Class 2 and Class 3 misdemeanors included for the sample from the 2012 study. The rearrest rate during the two-year follow-up increased from 36% to 39% by including the Class 2 and 3 misdemeanors.

Robert Campbell inquired if the AOC’s court data entered by the clerks could be used instead of fingerprinted arrest data for reporting recidivism. Ms. Hevener responded that the

AOC’s automated system is case-based and does not have person-based identifiers, so staff use arrest records for reporting recidivism.

Ms. Flinchum also presented findings from the second brief, Correctional Programs and Recidivism for Prison Releases, which provided recidivism rates for prison releases who participated in correctional or prison programs from the 2012 and 2014 recidivism studies. Ms. Flinchum reported that prisoners’ participation in a program could have occurred at any time during their incarceration. In addition, prisoners could have participated in more than one program. Six correctional or prison programs were examined: Alcohol and Chemical Dependency Programs (which included only short-term and intermediate treatment programs), Correction Enterprises, Correctional (or Academic) Education (e.g.,GED), SOAR (i.e., Sex Offender Accountability and Responsibility program), Vocational Education, and Work Release. Fifty-seven percent of the prisoners participated in one or more of the six programs. Of those prisoners who participated in the six prison programs examined, 51% participated in only one program. The rearrest rates for the prisoners in the 2014 study who participated in a prison program were marginally higher compared to the participants in a prison program in the 2012 study. However, the reincarceration rates were lower for the prisoners who participated in a program in the 2014 study compared to the 2012 findings. The drop in reincarceration rates is due to laws and policies implemented with the passage of Justice Reinvestment.

The Chairman asked for a description of the Correction Enterprises program. Several Commissioners responded to his request by offering explanations to this self-supporting prison industry program. David Guice offered to provide additional information about the program to staff for dissemination to the Commission members. Finally, Art Beeler wanted to know if recidivism rates for prisoners who did not complete a prison program or who did not participate in a prison program were available. Staff informed Mr. Beeler that the recidivism rates for all prisoners were available in the 2012 and 2014 reports.

Jennifer Wesoloski presented the results of the Multivariate Analysis Research Brief. A copy of the full research brief and a handout with the summarized results of the multivariate recidivist arrest model were provided. Ms. Wesoloski explained that the brief was based on the same data used in the 2014 Correctional Program Evaluation. After defining multivariate analysis and its uses, a summary of the results for recidivist arrests was presented. Ms. Wesoloski focused on the results for all offenders, highlighting additional information specific to probation entries and prison releases.

For all offenders, personal characteristics that increased the probability of rearrest

included being male, nonwhite, a high school dropout, and having a history of drug addiction. Criminal history factors associated with an increased chance of rearrest included being older at first criminal justice contact, the number of prior arrests, having a prior drug arrest, and the number of prior probation revocations. An increase in severity of current sentence also increased the probability of rearrest; offenders with an intermediate punishment or active sentence were more likely to have a recidivist arrest than offenders with a community punishment. Factors decreasing the probability of rearrest for all offenders included being older at entry into the sample, being married, being employed, the number of prior incarcerations, and having a felony offense compared to having a misdemeanor offense.

Findings for probation entries and prison releases were similar to all offenders with few

variations. Variables specific to probation entries that decreased the probability of rearrest included having an intermediate punishment compared to a community punishment, the length of probation supervision, and having a lower need level. Having a higher OTI risk score increased the probability of recidivist arrest. Variables specific to prison releases that increased the probability of rearrest included having a higher OTI risk score and having a higher number of prison infractions. Prisoners who had a longer time served were less likely to have a recidivist arrest, as were those who had a lower custody classification level while incarcerated.

In response to Judge Ervin’s question as to why having an increased number of prior incarcerations would decrease the likelihood of rearrest, Susan Katzenelson suggested that one possible explanation was that long-term incarcerations are generally associated with higher risk offenders convicted of serious crimes who may not have the opportunity to accrue as many incarcerations as low level, lower-risk offenders. Ginny Hevener stated that as the offender ages, he/she could have more incarcerations, but at some point, aging out of the system occurs. Ms. Wesoloski stated that offenders aged 50 and older were 42% less likely to be rearrested than offenders under the age of 21, a recurring theme in the criminal justice literature. Mr. Fialko asked if we could use different age categories for our analyses. Ms. Wesoloski responded that different age categories could be used. Ms. Hevener added that the current categorization is based on the definition of youthful offenders used to determine prison housing needs.

The Chairman recognized Michelle Hall for the final presentation on research briefs. Ms. Hall explained to Commissioners that they had two documents in their packet which were part of a new publication series titled Quick Facts (see handouts). The purpose of the new publication series is to have an easily digestable, short document (one page, double-sided) that presents some of the Commission’s data in a way that can reach a broad audience. She noted that the Quick Facts publications are designed as primarily web-based publications, housed on the Commission’s website. Staff envision they will include highlights and major findings from research included in published reports and in-depth studies on specific topics. The first two topics covered in the Quick Facts publication series are Felony and Misdemeanor Convictions. She noted that the data contained in the two handouts come from the annual Structured Sentencing Statistical Reports on Felonies and Misdemeanors. The front side of the Felony Convictions Quick Facts document highlights basic information about the FY 2012/13 data including offense class distribution, type of offense, offender characteristics, prior record level distribution, judicial division, and punishment. The back of the document contains felony conviction trend data that are not published as part of the annual Statistical Report. Trend data from the past ten fiscal years on felony convictions included total felony convictions, type of offense, type of punishment, and average minimum active sentence. Ms. Hall pointed out that this format allows readers to look at some of the major trends in court data, specifically felony convictions, and how they have changed over time. Ms. Hall then turned to the Quick Facts handout on Misdemeanor Convictions. She noted that it contains similar data to the felony convictions document. Misdemeanor conviction data for FY 2012/13 highlighted on the front of the handout includes: offense class, type of offense,

offender characteristics, prior conviction level distribution; top misdemeanor convictions by offense class, and punishment. The back of the document contains trend data for the past ten fiscal years on misdemeanor convictions: total misdemeanor convictions; type of offense; type of punishment; and average active sentence. Ms. Hall concluded by stating that the publications should be up on the Commission’s website next week. Judge Spainhour asked if the number of driving while impaired (DWI) convictions was known. Ms. Hall responded that the DWI convictions were excluded from the analysis because they are not sentenced under Structured Sentencing. She then noted that the same exclusions used in the annual Statistical Reports apply also to the Quick Facts publications (e.g., drug trafficking convictions are excluded from the felony conviction data, DWI convictions are excluded from the misdemeanor conviction data). Billy Sanders asked if credit for time served information was available for the felony sentences. Ginny Hevener responded that it is but it is not included in the report. Chris Fialko asked how many misdemeanor active sentences were for time served. Ms. Hevener replied that this happens a lot for misdemeanants but would require further analysis of the data for firm numbers.

AGENCY UPDATES

Chairman Spainhour recognized Anne Precythe, Nicole Sullivan, and George Solomon, from the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, to give an update on the development of CRV Centers in North Carolina. Ms. Precythe informed the Commission that the General Assembly appropriated funds for two CRV Centers, one in Burke County and another in Robeson County. Currently, the Division of Adult Correction (DAC) is focusing on developing the center in Burke County; the center in Robeson County can be modeled after the Burke County center. Once DAC has gotten the Burke and Robeson sites operational, they will turn their attention to setting up a center for female offenders. Ms. Precythe reminded the Commission that CRV centers are a new venture, they are a hybrid – they are not prison, but are confinement; not community supervision, but do draw on the programming, case management and supervision techniques used in community supervision.

Ms. Precythe stated that Community Corrections has eight workgroups focused on

getting the CRV centers up and running. The first workgroup, Job Descriptions & Training Recommendations, is working to make sure the centers are staffed correctly. The second group, Transportation, Population Management & Admissions Processing, is defining the parameters for how Community Corrections will account for offenders around-the-clock and make sure their daily needs are being met. Ms. Precythe mentioned that the CRV center idea is so new that DAC is not even sure what to call the program participants – residents, offenders, or participants? The third workgroup, Programming, is contracting with a particular vendor for CBI and SA programs; DAC will build its own programming around those programs. Nicole Sullivan told the Commission that they will be providing employment readiness and life skills programs and hope to be working with the surrounding communities to help keep the offenders connected to the

community. Once the programming is finalized, they will be able to begin staffing the CRV centers.

Ms. Precythe told the Commission that the fourth piece, the Automation workgroup, is

what will really make the CRV centers work. The program vendor will have access to the Offender Population Unified System (OPUS) and Program Information Management System (PIMS), and probation officers will be able to pick-up where the CRV center left-off with an offender since they will be able to see what the offender has been doing while in the CRV center. Judge Ervin asked Ms. Precythe when DAC expects to begin receiving offenders in the CRV centers; she replied that Commissioner Guice says it will be October, she thinks it will be November, so she hopes it will be somewhere in the middle. Technically, funding will be available October 1, 2014, for the first center. Chairman Spainhour asked where the facility will be located in Burke County. Ms. Precythe explained that it will be located in the minimum custody facility near the old Western Youth Institution; this building was previously used for the IMPACT Program.

Regarding the fifth workgroup, Food & Medical Services, Ms. Precythe expressed

confidence that they will be able to use existing food services. In Burke County, the Foothills Correctional Institution is across the parking lot and Community Corrections can utilize that facility’s food, medical, and maintenance services. Judge Ervin asked about the projected capacity of the CRV centers. Ms. Sullivan answered that there will be a total capacity of 500 beds. George Solomon expanded on that saying that there will be 236 beds in Burke and 246 in Robeson. He added that there will be 90-100 beds at a female center. Art Beeler asked about the delay in processing offenders off-site, to which Mr. Solomon responded that it is Community Corrections’ intention to process the offenders on-site so that they can get started in programming immediately. He added that they hope to get intake down to three days. Judge Spainhour asked about the factors considered in assigning offenders to a center; specifically, whether offenders will be sent to the closest center. Ms. Precythe said that once both centers are open, offenders will be sent to the closest one. Research shows offenders are more successful if families can be involved in their lives. Community Corrections hopes to open a center in the central part of the state eventually, too. Secretary Guice reminded the Commission that legislation passed that allows DAC to open closed facilities for CRV centers and, since he believes that Burke and Robeson centers will be close to capacity from the start, DAC is already looking at other facilities for CRV centers. He believes that DAC will be able to get those facilities running quickly if Community Corrections can find the funds.

Mr. Sanders asked how Community Corrections will determine whether an offender has

successfully completed a CRV; will they get gain-time or sentencing credits for successful completion? Ms. Sullivan responded that they will have pre- and post-testing and assessments; no sentencing credits will be applied, but there will be incentives related to supervision. Mr. Sanders reminded the representatives from DAC that typically there is some sort of gain-time for successful completion of programs in prison. Secretary Guice appreciated the comment and suggested that maybe they could put a policy in place that they make a recommendation to the court that it considers the successful completion. Further, Secretary Guice stated that he would like to explore credits, but has no plan in place for that now.

Mr. Beeler recommended that the DAC put video conferencing equipment into each facility for visitations. Ms. Precythe responded that there will be a kiosk for video visitation and Ms. Sullivan stated that offenders will be able to “earn” visitation through good behavior; this is a departure from the current practice of not allowing visitation during a CRV.

The sixth workgroup, Security, has been focusing on the security process for staff and for

the facility as a whole. The members of the sixth workgroup have been defining training procedures for the staff at the CRV centers since the culture will be much different than that in prisons and jails. In jails and prisons, Ms. Precythe said, there is a custody side and a programs side, and in the CRV centers, they will have a blended role. The staff in the CRV centers will not be correctional officers, but rather program managers trained in corrections. Sheriff Clemmons asked whether the CRV centers will work with local law enforcement to make sure those officers understand their role in this new environment, especially when there is an emergency. Ms. Precythe responded that the plan is to engage all the local stakeholders to make sure they understand the purpose and intent of these new facilities. Mr. Solomon echoed Ms. Precythe’s comment, stating that DAC’s standing policy is to make emergency plans with local stakeholders for every facility, and that policy would apply to the CRV centers as well. Mr. Beeler remarked that DAC is basically creating a rehabilitation center similar to those built in the 1950’s and 60’s; he stated that there might be some helpful literature available on the processes of building those centers.

The seventh workgroup, Auxiliary Operational Support Services, has been considering

topics such as whether offenders will wear uniforms or street clothes, whether DAC will clean the clothes, how often the clothes will be cleaned, etc. The workgroup has decided on one uniform for the residents and one for the staff. Ms. Precythe said that the workgroup has also been considering whether and how offenders in CRV centers might contribute to and be engaged in their facility, such as through food service, laundry, or janitorial services. Ms. Sullivan echoed Ms. Precythe’s comments and said that the workgroup has been trying to come up with a robust rewards/incentives program. Sherriff Clemmons and Mr. Sanders expressed that the offenders will need incentives to get them to do those “chores.” Members of the Commission made suggestions for what those incentives might be; they recommended special food, sports channels on TV, exercise rooms, tablets, and a reward system similar to that of TROSA. Mr. Beeler asked Ms. Sullivan whether they intend to teach the offenders how to manage leisure time; she responded that they will. Ms. Kusa asked whether there would be mandatory anger management programming. Ms. Sullivan responded that that is part of CBI programming; Ms. Precythe reiterated that all the programming in the CRV centers will be mandatory, as opposed to prison where offenders might refuse to participate. She added that there will be plans for dealing with offenders who refuse to participate. Mr. Solomon stated that the staff will be modeling expectations so that offenders know that DAC is trying to grow them as persons, so that they will not return to the system; he really believes that we will see a team effort from the staff and the participants in the CRV centers. Secretary Guice reminded the Commission that CRV’s are being considered as a new approach across the nation, and that they will require some adjustments down the road. Ms. Kusa remarked that DAC must work to make these offenders realize they are a part of a community, and change the way they interact with other members of society. Ms. Precythe concluded by stating that the eighth group is the Policy workgroup.

Ms. Precythe shared the results of a recent DAC study of quick-dips. They looked at approximately 600 offenders, 300 of whom had a quick-dip compared to 300 who did not. The study showed that 92% of people that had a quick-dip had some type of positive experience following that dip; only 46% of people who did not receive a quick-dip had a subsequent positive experience. In addition, not a lot of the offenders had a second quick-dip. Ms. Precythe stated that the DAC will also be looking at offenders who receive one CRV versus offenders who receive subsequent CRVs. So far, they have found that less than 10% of the offenders who receive CRVs are low risk offenders; 65% of them are high risk offenders.

Returning to CRVs, Mr. Beeler asked what kind of programming is available for

misdemeanor CRVs in jails. Ms. Precythe responded that the DAC has not begun assisting jails with that yet. One issue Ms. Precythe pointed out that exists regarding misdemeanor CRV programming is that the jails do not have the space for that; Mr. Beeler agreed and added that they lack staff as well. Mr. Beeler suggested that if there is not decent CBI programming for the misdemeanor CRV, then maybe there should not be a misdemeanor program.

Chairman Spainhour next called on Keenon James of the N.C. Sheriffs’ Association to

update the Commission on the Statewide Misdemeanant Confinement Program. Mr. James reminded the Commission that the SMCP was originally designed for misdemeanants sentenced to 91 to 180 days imprisonment. Beginning October 1, 2014, the population will be expanded to include all misdemeanants serving sentences of 91 days and up, and in January 2015, DWI offenders will be included in the SMCP. He stated that the SMCP is ready to accept the 180 day plus misdemeanants now; they are expecting that to produce an increase in the average daily population of approximately 250 offenders. The DWI offenders begin arriving in January and they project an additional 500 inmates in the program. Currently, the SMCP sees an average daily population of 680 inmates, with the additional inmates the projected daily population of the SMCP should be approximately 1400 offenders. Personnel and the system are ready for the increase as there are 1332 male beds available and 336 female beds available. Unfortunately, court forms have not yet been revised, but should be ready by the beginning of the year. Currently, all counties in the state are sending counties to the program and 52 counties receive inmates. SMCP training is held every year in September, and they hope to get full 100 county participation in the near future; training is required for receiving counties. The 2014 training will include information on the expected influx of offenders to the SMCP.

Judge Ervin asked Mr. James about the Sheriffs’ Association preparations for DWI

offenders entering the SMCP and the treatment programs that will be available for those offenders. Mr. James responded that preparations for taking DWI offenders include records management, as paperwork must go to the receiving jail and to OPUS for the Post Release Supervision and Parole Commission. Further, he said, the SMCP is continuing to evaluate substance abuse programming: DART Cherry and Black Mountain are being considered as options for parole eligible offenders, the Sheriffs’ Association is looking at available services providers and their costs, and possibly working with larger jails that already have substance abuse programming. Mr. James said that a major hurdle is the existing programming for DWI offenders is often set to run for a longer time than the offender’s sentence; Mr. Beeler thanked Mr. James for considering that issue and reminded him that too much programming can be deleterious to treatment.

Representative Faircloth asked about transportation for the new offenders. Mr. James

responded that they will be using the existing infrastructure, the sending county will be reimbursed for transportation costs. They are also looking at prison transportation for offenders sent to DART Cherry and Black Mountain. Another option, Mr. James said, is housing DWI offenders in regions; they are looking at 10 to 12 counties that already have DWI programs. Mr. James stated that they still have things to do, including developing an admission process for parole-eligible DWI offenders, putting together training materials, evaluating substance abuse services, working on data integration with DPS, and establishing a system for insuring uniformity in credits. Mr. Beeler asked whether the SMCP has considered video programming from community colleges; Mr. James replied that they do not have such programming yet. Susan Katzenelson asked about the balance of beds calculation and whether there is any concern that receiving counties will stop volunteering. Mr. James responded that over the last few years, the SMCP has seen receiving county numbers go up, and he believes that in the future the beds may shift but the total number will not go down. Mr. James concluded his presentation stating that the two biggest areas of focus with regard to the DWI offenders are uniformity of programming and sentence credit application, but he feels confident that the program will be ready to go in advance of January 1, 2015. He reiterated that the SMCP is ready to receive the new misdemeanant population beginning October 1, 2014.

Finally, Chairman Spainhour recognized Billy Lassiter from the Division of Adult

Correction and Juvenile Justice of the Department of Public Safety, who updated the Commission on the juvenile justice aspects. He provided the commissioners with a copy of the DACJJ Strategic Plan (see handout) which he referenced during his presentation. Mr. Lassiter highlighted some numbers from the Strategic Plan; for example, he said admissions to Youth Development Centers (YDC’s) are down by 73% over the last 12 years. He reminded the Commission that juveniles entering YDC’s are felons and chronic offenders (5 or more misdemeanors), and then directed them to the glossary of terms included in the Strategic Plan. Mr. Lassiter stated that DACJJ has been working over the last five years with communities, judges, and court counselors, to come up with alternatives to detention for juveniles. North Carolina now has one of the lowest rates of detention for juveniles; the reduction in this number has resulted in a huge cost savings to the state. The juvenile crime rate is down almost 20% over the last four years. DACJJ is reinvesting in communities so that they can support their juvenile population.

Mr. Lassiter also talked about the future of DACJJ; he stated that the Strategic Plan was

adopted by the General Assembly this year, and highlighted some of the themes of that plan. For instance, Mr. Lassiter pointed out, the Plan provides for a transfer of money originally earmarked for the Dobbs Center kitchen to other DACJJ projects, including facilities, opening reentry homes (5 statewide), crisis beds, mandatory parenting classes for parents of committed youths, and other reentry services. The reentry home project was piloted in Craven County; it has been open for three years and has a recidivism rate of 14% (compared to 60% for juveniles coming out of YDCs). Juveniles housed in the reentry home are employed, enrolled in community college, and are given a support system in the community. Ms. Davis asked Mr. Lassiter whether any kids have sabotaged their stay at the reentry home in an effort to not be sent home. Mr. Lassiter responded that that has not happened because the juveniles are not required to return to

their parents’ house after being released from the reentry home; they are transitioned to independent living.

Chairman Spainhour informed the members that the next full Commission meeting is scheduled for December 5, 2014. The meeting adjourned at 2:35 p.m. Respectfully submitted, Susan Katzenelson Executive Director

North Carolina Judicial Center Board Room

Raleigh, NC

December 5, 2014

AGENDA

Welcome and introductions

Review agenda

Adoption of minutes from the September 5, 2014 meeting

10:15 – 10:45 CREDIT FOR TIME SERVED SUBCOMMITTEE: STATUS

REPORT

Judge Spainhour, Chair

John Madler, Rebecca Murdock, staff

10:45 – 12:30 JUSTICE REINVESTMENT IMPLEMENTATION

SUBCOMMITTEE: STATUS REPORT

Judge Brown, Chair

John Madler, Rebecca Murdock, staff

12:30 – 1:00 LUNCH

1:00 – 1:30 CRV CENTERS UPDATE

Anne Precythe, Department of Public Safety

1:30 – 2:00 RESEARCH AND POLICY STUDY GROUP: STATUS REPORT

Louise Davis, Chair

Susan Katzenelson, staff

2:00 – 2:30 JUVENILE DELINQUENT POPULATION PROJECTIONS

Jennifer Wesoloski, staff

2:30 – 3:00 CORRECTION ENTERPRISES

Joe Prater, Department of Public Safety

3:00 ADJOURN

MINUTES

MEETING

December 5, 2014

The North Carolina Sentencing and Policy Advisory Commission met on Friday,

December 5, 2014, at the North Carolina Judicial Center in Raleigh, North Carolina.

Members Present: Designated Chairman Luther Moore, Art Beeler, Honorable Charlie Brown,

Paul Butler, Robert Campbell, Honorable Warren Daniel, Louise Davis, Honorable Richard

Elmore, Honorable John Faircloth, David Guice, Ilona Kusa, Honorable Floyd McKissick, Dr.

Harvey McMurray, Robert Montgomery, Honorable Fred Morrison, Billy Sanders, Keith

Shannon, and Honorable Thomas Thompson.

Guests: Eliott Abrams (representing Chris Fialko), Karen Brown (Department of Public Safety,

Correction Enterprises), William Lassiter (Department of Public Safety, Juvenile Justice), Joe

Prater (Department of Public Safety, Administration), Anne Precythe (Department of Public

Safety, Community Corrections), Nicole Sullivan (Department of Public Safety, Rehabilitative

Programs and Services), Keenon James (North Carolina Sherriff’s Association), Susan Sitze

(General Assembly, Research Division), Yolanda Woodhouse (Administrative Office of the

Courts), Susan Doyle (District Attorney-11B), and Ben David (District Attorney-5).

Staff: Susan Katzenelson, Ginny Hevener, John Madler, Tamara Flinchum, Sara Perdue, Mark

Bodkin, Rebecca Murdock, Jennifer Wesoloski, and Shelley Kirk.

INTRODUCTION

Luther Moore called the meeting to order at 10:00 a.m. He explained that Chairman

Spainhour was unable to attend the meeting and designated Mr. Moore to chair the meeting in

his place. Chairman Moore announced the 2015 Commission meeting dates will be March 6th,

June 3rd, September 11th, and December 4th. He then introduced a new commissioner, the

Attorney General’s designee, Robert Montgomery. Members and visitors introduced themselves.

After reviewing the agenda for the meeting, Chairman Moore presented the minutes from the

previous meeting. Billy Sanders moved to adopt the minutes from the September 5, 2014,

meeting; the motion was seconded and carried.

CREDIT FOR TIME SERVED SUBCOMMITTEE: STATUS REPORT

John Madler presented the status report for the Credit for Time Served Subcommittee.

The Sentencing Commission created the Subcommittee at its December 2013 meeting and

assigned it to study various issues that related to the awarding of time credits against sentences of

imprisonment and confinement, as well as issues related to the period of confinement in response

to probation violations (CRV). The Subcommittee met in the first quarter of 2014 and developed

several recommendations. The Commission adopted the Subcommittee’s Report at its March

2014 meeting.

Mr. Madler then reviewed the issues assigned to the Subcommittee and the

recommendations. The first issue related to the confusion in the collection and calculation of jail

credit. The Subcommittee recognized the need for a centralized jail data collection system but

did not make any recommendations. The second topic was that the jail credit statutes do not

address issues created by recent changes in the laws, specifically the Justice Reinvestment Act.

The Subcommittee studied the application of jail credit to the CRV. It recognized that an

offender was entitled to credit for time spent in confinement but found that jail credit was

reducing the period of confinement; there was not enough data to determine the extent. In

addition, the Division of Adult Correction and Juvenile Justice (DACJJ) reported that it was

revisiting its approach to the CRV. The Subcommittee decided not to make any recommendation

at that time. The final issue was that the jail credit statutes are not clear regarding the awarding

of credits. The Subcommittee developed two recommendations that might help clarify the

statutes. (See handout.)

Following that review, Mr. Madler informed the Commission that since the

Commission’s adoption of the Report in March, the General Assembly had enacted several

provisions that affected those issues. The General Assembly amended the CRV statute to

prohibit the crediting of time already served to a 90 day CRV for a felony offense; any such

credit shall instead be applied to the suspended sentence. The General Assembly also

appropriated funds for two CRV centers. The DACJJ is developing a plan for working with

offenders in the new centers. Finally, the General Assembly amended the confinement statutes to

place all misdemeanor offenders in the local jails, either directly or through the Statewide

Misdemeanant Confinement Program. Mr. Madler indicated that this might increase the demand

for a centralized jail data collection system.

Mr. Madler concluded by pointing out that no action had been taken on the two

recommendations to clarify the statutes. Billy Sanders moved to authorize the staff to work with

the legislative members of the Commission to seek sponsors to introduce the two

recommendations in the 2015 Session. The motion was seconded and carried. This concluded

the work of the Credit for Time Served Subcommittee.

JUSTICE REINVESTMENT IMPLEMENTATION SUBCOMMITTEE: STATUS

REPORT

Judge Brown presented the status report from the Justice Reinvestment Implementation

Report Subcommittee. (See handout.) He informed the Commission that the JR Subcommittee

met October 24, 2014, to study three issues the Commission had assigned to the Subcommittee.

The first two issues came at the request of the Conference of District Attorneys (Conference):

the existence of Advanced Supervised Release (ASR) and the application of credit for time

served for CRVs to consecutive sentences. The third issue was the use of terminal CRVs.

Judge Brown began by reviewing the legislative changes arising from the 2014 Session

that were relevant to the issues referred to the Subcommittee. He highlighted the shifting of

misdemeanants and all DWI offenders to local jails, the prohibition of the application of credit

for time served toward a CRV period, and the creation of felony CRV centers.

Judge Brown then reported on the study of the issues referred to the Subcommittee,

beginning with those requested by the Conference of District Attorneys. The Subcommittee

discussed ASR and the Commission’s initial review of it in 2011 as part of the Commission’s

study of the Justice Reinvestment Act (JRA). The Subcommittee heard comments from Maureen

Krueger, representing the Conference, as to why the Conference had asked the Subcommittee to

study ASR. Staff informed the Subcommittee about the site visit research they conducted in the

fall of 2013 as it pertained to ASR. Staff also reported that court data showed about a 1% usage

among eligible offenders.

Next, Judge Brown reported that the Subcommittee looked at the issue of CRV credit in

the context of consecutive sentences. After staff illustrated the issues that arise from the

application of credit for multiple CRVs when sentences are activated, Maureen Krueger stated

the Conference’s position against the multiplication of credit. Anne Precythe, the Director of

Community Corrections from the Department of Public Safety (DPS), stated that the DPS had

recognized the problem and their legal staff was working on a legislative proposal to correct the

issue.

Finally, Judge Brown reported on the issues regarding terminal CRVs, particularly how

they applied in the misdemeanor context. The Subcommittee reviewed the definition, purpose

and process for misdemeanor CRVs, as well as the information garnered in the field visits. Staff

also reported to the Subcommittee the information collected during follow-up interviews. The

Subcommittee heard a brief update from various agencies on their plans for misdemeanor CRV

offenders and from staff regarding current data on the usage and average length of a CRV.

Pursuant to these discussions, the Subcommittee developed a set of recommendations.

Judge Brown presented each recommendation individually for discussion.

In regard to the ASR issue, the Subcommittee recommended the elimination of ASR.

Judge Brown moved the adoption of the recommendation.

Art Beeler, a member of the Subcommittee, stated that after further reflection he was

unsure ASR should be eliminated completely. Instead, he offered a substitute motion to send the

issue back to the JRA Subcommittee for further study.

Chairman Moore recognized Commissioner Guice to speak on the motion. Commissioner

Guice distributed information regarding a follow-up study the Council of State Governments

recently completed (see Handout). He explained that, as a part of developing the JRA and this

provision specifically, all the stakeholders were brought to the table, including the Conference of

District Attorneys. The objections the Conference raised were not new objections and, in

response to their concerns, the agreement was for prosecutors to have full control over which

inmates could be accepted into the ASR program by requiring the prosecutor’s approval.

Commissioner Guice disagreed that ASR violated the truth-in-sentencing principle, stating that

all parties would know at sentencing that this was a part of the sentence that the defendant was

receiving and that it would be up to them to earn the early release date. While the number of

inmates currently participating in the ASR program is low, he felt that the program was still in

the beginning stages of the process; while it might need some adjustments or tweaking, he asked

the Subcommittee not to eliminate the program at this time. Commissioner Guice also mentioned

that no ASR inmate who completed the program has been released yet.

Commissioner Guice told the Commission about a pilot program the Department was

working on to develop pre-sentence investigation reports and how that might help the courts

better utilize ASR. He also expressed an interest in exploring the idea of building an independent

facility to house ASR inmates.

Commissioner Guice reported on the outreach the Department of Public Safety was doing

to help district attorneys understand ASR and to see how it could work in their practice. He

asked the Chair to recognize two guests he brought — Ben David, District Attorney for District

5, which includes New Hanover and Pender County, and Susan Doyle, District Attorney for

District 11B, which is Johnston County.

Mr. David thanked the Commission for allowing him to speak on the issue. He stated that

he was not speaking on behalf of the Conference of District Attorneys, and that the position of

the Conference had not changed. He believed that the Conference is in somewhat of a flux with

several new district attorneys taking office this January. Mr. David noted that he is not currently

using ASR in his district, but that after hearing what Ms. Doyle has done in her district with it, he

was interested in learning more about the program before making a decision whether to use it.

Ms. Doyle stated that in her opinion, most DAs do not know what ASR is. She admitted

that she did not know until Anne Precythe visited her district and talked with her. Since then, she

has developed a policy for ASR and has worked with her ADAs on implementing that policy.

For example, Ms. Doyle has a policy that if a defendant qualifies for a habitual felon indictment,

the office will pursue it. However, many times the underlying offense is weak and the office is

unsure about whether to proceed with the habitual felon indictment; offering the incentive of

ASR to the defendant allows them to proceed with more of those cases and reach a plea

agreement. She has also been able to use ASR as part of a habitual felon plea bargain to reduce

the sentence length if the ADA sees reason for mitigation while still adhering to the habitual

felon policy. Finally, they can use ASR in non-habitual felon cases to get a plea agreement on

the original charge rather than reducing it; it allows the office to maintain a “tough on crime”

policy while still being able to strike a deal with the defendant.

Commissioner Guice stated that this practice showed ASR could be a useful tool and

asked the Subcommittee to not remove an option that could eventually be used, and used

effectively. Senator McKissick agreed with Commissioner Guice that ASR should be given more

time to work itself out in practice.

Judge Morrison pointed out that the Subcommittee had compelling reasons for

eliminating ASR and that he was unsure if asking them to reexamine the issue would be useful.

Mr. Sanders felt that the DA’s discretion to use the policy was an important component—

if a DA was uncomfortable with the policy, they could elect not to use it. He also was unsure

ASR violated truth-in-sentencing because everyone knew what the plea was from the outset.

Ms. Kusa stated that while truth-in-sentencing is important for victims, programming is

critical for offenders. She also recognized that it would take some time before they could look at

the recidivism rates and determine whether this program has a positive effect.

After further discussion, Chairman Moore returned to Mr. Beeler’s substitute motion to

re-refer the issue to the JRA Subcommittee for further study. The motion was seconded and

carried.

With respect to the CRV credit issue in the context of consecutive sentences, the

Subcommittee recommended that the application of CRV credit towards consecutive sentences

be changed so that the credit to CRVs that are served concurrently is equal to one CRV period

rather than multiplied by the number of CRVs. The Subcommittee suggested that the

Commission review any proposal from the DPS; however, the DPS did not present a proposal.

Judge Brown moved to adopt the recommendation. With no discussion, the motion carried.

In regard to the issue concerning the misdemeanor CRVs, the Subcommittee

recommended eliminating CRVs for misdemeanor offenders. The Subcommittee further

recommended creating a substitute path to revocation for misdemeanor offenders: allow the

court to revoke probation if the probationer violates a condition of probation after the probationer

has previously served two separate periods of confinement in a local confinement facility on that

case. The second period of confinement must have been imposed for a violation that occurred

after the probationer served the first period of confinement. The periods of confinement may

have been imposed either by the court or by the probation officer pursuant to delegated authority.

Judge Brown moved the adoption of the recommendation.

Commissioner Guice asked whether the recommendation was to require the use of quick

dips in response to technical violations. Judge Brown responded that it would allow for the use

of quick dips but that it would not require it. Commissioner Guice expressed concern over the

utilization of quick dips and its impact on local jails. He recommended that the Commission be

very specific when submitting that recommendation. The motion carried. Chairman Moore

thanked Judge Brown for the Subcommittee’s report.

Chairman Moore reminded the Commission members that the Sentencing Commission

has a statutory duty to review proposed legislation for consistency with Structured Sentencing.

He informed them that the General Assembly would begin its 2015 Session on January 14. In

order for the Commission to perform its duty in a timely manner, the Chairman will create a

subcommittee to review legislation between Commission meetings. Dr. McMurray moved to

authorize the Chairman to form a Legislative Review Subcommittee during the 2015 Session if

necessary. The motion was seconded and carried. Chairman Moore added that Chairman

Spainhour will ask for volunteers, but will appoint members if more are needed.

CRV CENTERS UPDATE

Anne Precythe, DPS, updated the Commission on the status of the new CRV centers in

Burke and Robeson Counties. She stated that the mission of the centers is “[t]o provide a highly

structured confinement program for technical violators which will allow opportunity to modify

behavior and learn new skill sets to succeed in the community upon release.” She listed the

elements of the stand-alone centers and indicated that the primary difference between the centers

and imprisonment is that at the CRV centers programming will be mandatory for the residents.

Ms. Precythe explained that CRV center staff has been trained on the behavior

modification model; they will take a team approach and focus on ‘the three R’s’: Role Model,

Reinforce, and Redirect. Staff will provide swift responses to minor infractions and issue

incentives for positive behavior. Each offender’s progress will be monitored through weekly

joint staff meetings. Furthermore, there will be probation officers on-site at the centers.

Program vendors will provide open-ended programs, including weekly individual

cognitive sessions for everyone. Other programs include academic services by local community

colleges, on-site computer labs, and substance abuse intervention classes. There will be

community volunteers coming into the centers as well. Ms. Precythe thanked Mr. Campbell and

the NC Bar Association for coordinating efforts to bring in legal volunteers.

Ms. Precythe reiterated that the CRV centers will be a totally different environment for

offenders; they will be showing offenders new ways to make decisions and to spend their free

time. Offenders will be given an opportunity to learn time management skills so that they don’t

get “bored” and thusly into trouble when released.

The DPS is in the process of hiring and training staff. It plans on beginning operations in

December 2014 and expects to be at full capacity by February 2015.

Ms. Precythe also explained that the DPS has identified certain types of offenders for

whom it will not recommend a CRV: Level IV and V offenders – lowest risk offenders who do

not need a 90 day program, and people with serious medical, mental health or substance abuse

problems. For them, the DPS will recommend other options such as a curfew, Electronic House

Arrest, a split sentence, or a residential treatment program. Of those offenders who receive a

CRV, not all will be eligible for a CRV center. The DPS will exclude offenders who have a

certain acuity level (require psychotropic drugs), have pending charges for Class A through D

felony offenses, have a prior incarceration at the highest control status in the past year, or who

have concurrent active sentences. Those offenders will serve CRVs in prisons.

Ms. Precythe stated that the DPS is still working on the issue of transportation. Offenders

could be transported to the centers using the prison bus system, which operates on Wednesdays

and Fridays, or they could be transported by the local Sheriff’s department.

Mr. Campbell asked about the process for determining whether an offender has mental

health issues and thusly whether he should go to a CRV center or to Central Prison for treatment.

Ms. Precythe responded that the probation officer should know; Mr. Campbell followed up by

asking whether there will be a box to check on the judgment form. Nicole Sullivan answered

that there is not a box on the judgment form, but that an offender will be screened before even

boarding a bus to the CRV center.

Louise Davis asked whether there is a minimum IQ for offenders to be eligible for the

centers. Ms. Sullivan responded that there was not, that vendors are required to provide services

for the offenders at the level of the offender’s need.

Mr. Beeler stated that there must be a mechanism in place to remove staff that does not

follow the program; Ms. Precythe responded that there was a mechanism. Further, he advised

that sanctions must be linked to treatment rather than discipline and structured leisure time for

the offenders is very important. Ms. Precythe responded that the system is based on

consequences and incentives. Regarding the transportation issue, Mr. Beeler remarked that it

might be a good idea to allow lower level CRV offenders to be responsible for getting

themselves to the CRV centers; not only would it save costs, but it would be a good way to

measure compliance from the start. Mr. Beeler asked whether all offenders on psychotropic

drugs will be excluded from the centers. Ms. Sullivan replied that it will depend on the

offender’s acuity level but added that there are issues with storing and securing the drugs.

Susan Katzenelson noted that, in order to evaluate the effectiveness of the CRV centers

accurately, data will be needed to capture whether an offender who received a CRV went to a

center or to a prison. She also mentioned the future difficulty in evaluating the CRV centers

when so many of the more problematic offenders are being excluded for their populations.

Nicole Sullivan responded that the OPUS system will identify where each offender served their

CRV. Mr. Sanders asked whether low-level offenders will be excluded from the CRV centers.

Ms. Precythe responded that the DPS is encouraging probation officers not to recommend a CRV

for low-level offenders if the court asks for a recommendation. The exception would be if the

offender’s behavior indicates a higher risk level than previously assessed.

Ilona Kusa asked whether DPS has plans for a CRV center for female offenders. Ms.

Sullivan responded that currently female CRV offenders are going to Fountain Correctional

Institution, but there are plans to create a CRV center for females at Eastern Correctional

Institution. Females tend to have more medical and mental health issues, so their programming

will need to be different, but those who are able to participate will, in the future, go to Eastern.

Commissioner Guice added that DPS is authorized to use funds available for other sites and they

are looking for funding but that they also have to identify supporting facilities for a female CRV

center.

Mr. Beeler closed the discussion by commenting that research shows putting low-risk

offenders in confinement increases their risk of recidivism; low-risk offenders should be kept

and treated in the community.

RESEARCH AND POLICY STUDY GROUP: STATUS REPORT

Ms. Louise Davis, Chair of the Research and Policy Study Group, reported on the

group’s first meeting on October 14, 2014.

The Study Group had first reviewed some of the Commission’s earlier work on policy

related topics, including its recidivism studies; recommendations on sentencing alternatives and

juvenile age; and continuous input into the development and implementation of the JRA.

Members had then raised and discussed a wide range of relevant issues involving

juveniles and youth; effective programming in prisons and communities for prisoners,

probationers and post-release supervisees; and ‘tipping points’ that might impede and offender’s

chances to desist further criminal activity.

After further discussion of the various options for study, the group reached the decision

to review Commission-, State-, and national information regarding the prevention of crime and

recidivism. Within this broad definition, the Study Group agreed to focus on three major criminal

justice issues that members found relevant and applicable to formulating policy: juveniles and

youth 16-21; tipping points and recidivism prevention; and mental health.

Ms. Davis concluded the status report by noting that the Study Group’s next meeting is

scheduled for January 23, 2015, in the Judicial Center.

JUVENILE DELINQUENT POPULATION PROJECTIONS

Jennifer Wesoloski presented the Youth Development Center (YDC) Population

Projections for Fiscal Year 2015 to Fiscal Year 2019 (see handout). The projections are prepared

annually in conjunction with the Department of Public Safety’s Division of Adult Correction and

Juvenile Justice (DACJJ) using data extracted from the North Carolina Juvenile Online

Information Network.

Using a computerized simulation model, the YDC resource needs are projected to remain

stable over the projection period, with a projected need for 237 YDC beds at the beginning and

end of the five-year projection period. The YDC population at the beginning of the projection

period was 241. A comparison of the projections to YDC capacity indicates that the projected

YDC population will be below YDC capacity for the five-year projection period.

Ms. Wesoloski summarized the assumptions that were used to develop the projections.

The projections take into account trend data, including criminal justice trends, delinquent

complaint trends, and population trends, as well as empirical data from the previous fiscal year,

such as the number of YDC dispositions, the average YDC length of stay, and the reason for

entry into a YDC. The projections do not take into account potential shifts in policy and/or

changes in court practices.

Ms. Wesoloski reviewed the Juvenile Dispositional Chart and the empirical data from

the latest available fiscal year, which in conjunction with the stock population form the basis of

the five-year resource projections. The Juvenile Disposition Chart includes three offense

classifications: violent (Class A-E felony), serious (Class F-I felony), and minor (Class 1-3

misdemeanor); three delinquency history levels: low (0-1 points), medium (2-3 points) and high

(4 or more points); and three types of dispositions imposed: Level I (community punishment),

Level II (intermediate punishment), and Level III (YDC commitment).

Of the 5,240 juvenile delinquent dispositions in FY 2013/14, the majority of juveniles

(75%) committed a minor offense, 72% had a low delinquency history, and 83% were disposed

for a misdemeanor offense. Of those adjudicated, 63% received a community punishment, 35%

received an intermediate punishment, and 2% were committed to a YDC. Distributions for these

data have remained stable for the last five years.

Ms. Wesoloski highlighted YDC population trends from FY 2010 to FY 2014, which

show the year-to-year variations in several key components used to produce the projections.

From FY 2010 to FY 2014, admissions to YDCs, and correspondingly, releases from YDCs have

generally decreased (45% and 40% respectively). The average overall length of stay in a YDC

was 13.4 months. Over the past five years, the average overall length of stay has been fairly

stable although it has been rising slightly. North Carolina’s YDC population has long been in

decline – 51% over the past ten years and 45% over the past five years – but has leveled off over

the past two years.

Mr. Beeler mentioned the importance of continued funding for Juvenile Crime Prevention

Councils (JCPCs). Senator Daniels asked if anyone had studied what effect raising the juvenile

age would have on the YDC population. Ms. Katzenelson responded that the VERA study

indicated there would be up-front costs, but the long-term savings would be sizeable. Judge

Morrison inquired about the gender distribution of the YDC population. Ms. Wesoloski

responded that the information was available, and that 92% of YDC beds needed for each year of

the projection period were for males.

CORRECTION ENTERPRISES

Chairman Moore recognized Joe Prater, Department of Public Safety, to provide a

presentation on the Department’s Correction Enterprises (see handouts). Mr. Prater gave an

overview of Correction Enterprises and its role in the Department. Mr. Prater then introduced

Karen Brown, the Director of Correction Enterprises. Ms. Brown explained that Correction

Enterprises employs the state’s inmates to produce goods that can be used and purchased by

North Carolina state agencies, while teaching them valuable job skills that are transferable to the

private sector upon their release from prison. She reviewed the job opportunities that they

provide and the products they produce. Ms. Brown concluded by showing a video that contained

several stories of inmates who had successfully transitioned into the work force upon release.

ADJOURN

Chairman Moore informed the members that the next full Commission meeting is

scheduled for March 6, 2015.

The meeting adjourned at 2:51 p.m.

Respectfully submitted,

Shelley Kirk

Administrative Secretary

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