Is G.S. 90-96(a) Mandatory or Discretionary?

Whether or not to grant a conditional discharge for an eligible defendant under G.S. 90-96(a) used to be within the discretion of the trial judge. In 2011, Justice Reinvestment made G.S. 90-96(a) mandatory for eligible defendants who consented to it. Two years later, it was once again made discretionary. Or was it? Readers of this blog are probably familiar with the general mechanics of a conditional discharge under G.S. 90-96(a). The law applies to eligible defendants (those with no prior felony convictions or misdemeanor drug or drug paraphernalia convictions) convicted of a qualifying offense (any misdemeanor or felony drug possession crime or a drug paraphernalia offense under G.S. 90-113.22 or, as of July 12, 2017, G.S. 90-113.22A). Defendants granted a conditional discharge are placed on probation without the court actually entering judgment in the case. If the defendant violates probation, the court can—after a probation violation hearing—enter an adjudication of guilt and sentence the defendant according to regular sentencing rules. If the defendant fulfills the terms and conditions of the probation, the court discharges the defendant and dismisses the conviction. Thus, the law allows a person who does well on G.S. 90-96 probation to keep his or her record clean. The question is, which eligible defendants get the benefit of G.S. 90-96(a)? And which defendants must get it? (To be clear, I’m talking here only about subsection (a) of G.S. 90-96. The separate conditional discharge available under G.S. 90-96(a1) is now and has always been discretionary.) Before Justice Reinvestment, whether to [...]