Electing to Serve a Sentence after Justice Reinvestment

Some criminal defendants just want to serve their time. There a variety of reasons for that. Sometimes they are facing active time for another conviction and hope the new sentence can be served concurrently. Sometimes it’s a money issue. And some defendants simply find life under community supervision to be difficult. Probation can be hard, notwithstanding its popular portrayal as a slap on the wrist. As I wrote in this prior post, the law that formerly allowed a probationer to elect to serve a sentence, G.S. 15A-1341(c), was repealed in 1995. S.L. 1995-429. The change was effective for criminal offenses occurring on or after January 1, 1997. Nevertheless, court and correctional data show that a substantial (albeit declining) number of exits from probation are via “election to serve.” As part of the Justice Reinvestment process, analysts from the Council of State Governments flagged the large percentage of elections to serve (8 percent of all probationers in FY 2009 according to their report) as a concern, both in terms of cost and as a reflection on the effectiveness of community supervision in North Carolina. The Justice Reinvestment Act (JRA) made several changes that directly and indirectly impact the elect-to-serve issue. In light of those changes, it’s time for another look at the law. First, make no mistake: G.S. 15A-1341(c) is still repealed. Defendants do not at any point in the process have a statutory right to refuse probation or (as it is sometimes said) to “invoke” their sentence. The elect-to-serve check box [...]