Justice Reinvestment and the "Commit no Criminal Offense" Probation Condition

Under the Justice Reinvestment Act (S.L. 2011-192), for probation violations occurring on or after December 1, 2011, the court may only revoke a person’s probation for a violation of the “commit no criminal offense” condition in G.S. 15A-1343(b)(1) or the new statutory absconding condition in G.S. 15A-1343(b)(3a). The court may revoke probation for other violations only if the probationer has already served two periods of confinement in response to violation under G.S. 15A-1344(d2). Given that most people on probation today are not actually subject to that new absconding condition (it only applies to people on probation for offenses that occurred on or after December 1, 2011, see S.L. 2011-412, sec. 2.5), and most offenders haven’t had time to notch two CRVs, the new criminal offense condition is, for now, the primary pathway to revocation. As a result, the JRA puts a spotlight on what was already a tough issue (I wrote about it here some time ago). As I traveled around the state teaching about Justice Reinvestment, I could scarcely get the revocation-limitation rule out of my mouth before someone would ask, “What do you mean by new criminal offense?” I learned that the practice around the state is split roughly 50/50 on this point, with some districts choosing not to act on a probation violation based on a new criminal offense unless there is a conviction for the crime, and others willing to consider pending charges in the probation hearing in certain circumstances. I don’t think either approach is wrong. [...]