The Absconding Donut Hole

In 2012, a person on supervised probation for an offense that occurred before December 1, 2011 moves to another state without permission. Months later he is arrested there and brought back to North Carolina for a violation hearing. May he be revoked for absconding? I don’t think so. This post discusses why. Effective for offenses committed on or after December 1, 2011, the Justice Reinvestment Act made it a regular condition of probation that a defendant not “abscond, by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising probation officer.” G.S. 15A-1343(b)(3a). The new regular condition is the first true absconding condition in North Carolina. In fact, aside from a brief mention in the Crime Victims’ Rights Act (G.S. 15A-837), it is the first use of the word “abscond” in the criminal law statutes. Previously, offenders alleged to be “absconders” were generally violating one of two statutory conditions of probation: the “remain within the jurisdiction” condition or the “report as directed . . . to the officer” condition. The absconding terminology was derived from Community Corrections policy, not the law. The new absconding condition was initially made effective for “probation violations occurring” on or after December 1, 2011. S.L. 2011-192, sec. 4.(d). But that didn’t make sense—how could a condition become effective only upon a violation of it?—so the effective date clause was amended by a technical corrections bill to make the law applicable to offenses committed on or after December 1, 2011. S.L. 2011-412, sec. [...]