Confinement as Part of a Deferral or Conditional Discharge

May probation pursuant to a deferred prosecution or conditional discharge include incarceration? The question has come up a lot lately, both on the front end when a person is placed on probation and on the back end if he or she violates. What sort of confinement, if any, is allowed at any point in the life of such a case? First, let’s back up and make sure we’re on the same page about what sort of deferrals and conditional discharges we’re talking about. Under G.S. 15A-1341(a1), a person may be “placed on probation as provided in this Article [82]” as part of a statutory deferred prosecution. Under G.S. 15A-1341(a2), a person may be “placed on probation” to participate in Drug Treatment Court as part of a deferred prosecution. Under G.S. 15A-1341(a3), (a4), and (a5), a person may be “placed on probation as provided in this Article” as part of a conditional discharge for prostitution, misdemeanors and Class H and I felonies, and Drug Treatment Court, respectively. There is also “probation” as part of the conditional discharges described in G.S. 90-96(a) and (a1) for drug possession and G.S. 90-113.14(a) and (a1) for certain toxic vapor offenses. So clearly the person must be placed on probation; it obviously would be wrong, for example, to style something as a conditional discharge but then order a straight active sentence to a jail or prison. The harder question, though, is whether the probation referred to throughout those statutes may include the various forms of incarceration that [...]