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Changes to the Habitual Felon Law

November 10th, 2011
By Jamie Markham

As part of the Justice Reinvestment project, analysts from the Council of State Governments (CSG) looked at how the habitual felon law is used in North Carolina. In general, the analysts recognized the law as a valuable tool for prosecutors (its use was on the rise between 2005 and 2009), but they also cited some indications that the law could benefit from a little recalibration. For instance, they noted that a clear majority of defendants convicted under the law get sentenced in the mitigated range. According to N.C. Sentencing and Policy Advisory Commission data from fiscal year 2009-2010, 69 percent of habitual felons received mitigated sentences (compared to 27 percent of felonies generally), with an additional 11 percent sentenced at the very bottom of the presumptive range. That large percentage of mitigated-range sentences was viewed as an indication that the system is uncomfortable with cliff effect that exists under current law: all habitualized crimes, regardless of offense class, are sentenced as Class C felonies—even though most principal felonies triggering the law’s application are Class G, H, or I offenses. At the same time, CSG focus group meetings with prosecutors and law enforcement officials indicated that for some offenders—especially those involved in breaking or entering crimes—the habitual punishment was appropriate and couldn’t come soon enough.

Based on those findings, the Justice Reinvestment Act (S.L. 2011-192) made two key changes related to the habitual felon law. The first change is an amendment to our existing habitual felon law. The second is the creation of a new habitual breaking and entering status offense. I’ll discuss the first change today and then walk through the new habitual B & E law in a post next week.

Under the revised habitual felon law, effective for principal felonies committed on or after December 1, 2011, a habitualized crime will be punished “at a felony class level that is four classes higher than the principal felony . . . but under no circumstances . . . higher than a Class C felony.” G.S. 14-7.6. The practical result of that change is that habitualized Class I felonies will be sentenced as Class E felonies; Class H felonies will be sentenced as Class D felonies; and everything else will be Class C, just like under existing law. (A few readers may remember that the Sentencing Commission offered a similar alternative—a three-class enhancement—back in 2002.)

A novelty of the new graduated enhancement is that some Class I felons habitualized to Class E will fall into “I/A” cells on the sentencing grid, making it possible for the first time that a habitual felon could get probation. It’s not obvious how the law’s requirement that habitual sentences run consecutively to any sentence being served applies to a suspended sentence. It could mean that the probation period itself cannot begin until any other sentence being served is completed (a so-called “contingent” case under G.S. 15A-1346(a), described here). Or it could mean that the suspended sentence must be set to run consecutively to other sentences being served in the event of activation.

I have already received a number of inquiries, many of them from inmates, about whether the changes to the habitual felon law apply retroactively. The effective date clause in the Justice Reinvestment Act makes pretty clear that the changes apply only to principal (fourth or subsequent) felonies that occur on or after December 1, 2011. S.L. 2011-192, sec. 3.(e). That section goes on to state explicitly that “[p]rosecutions for offenses committed before the effective date of this act are not abated or affected by this act,” making it pretty clear to me that no retroactive application was intended. I am sometimes asked whether the “retroactive application” provision for “significant change[s] in law” in the motion for appropriate relief article (specifically, G.S. 15A-1415(b)(7)) allows a judge to apply the law to someone already convicted and sentenced. For the reasons stated in this prior post, I don’t think it does.

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6 Responses to “Changes to the Habitual Felon Law”

  1. Randy Page says:

    If a person committed a crime before December 1, 2011, would he be sentenced as a habitual felon under new law or the old habitual felon law. My brother is charged with a crime committed in September 2011. Out on bond and doing good. We are worried about him and hope he will be found not guilty when it goes to trial. I believe he is innocent. Charged with Obtained Property by false pretense. He wrote a check and something went wrong. I don’t want to say any more as he hasn’t gone to court yet. If you will please send an answer to randy.page17@yahoo.com.

  2. Kristin says:

    My husband is incarcerated as a habitual felon. He has repeat drug charges. He was sentenced with 5 years and 10 months but began his sentence in 2009. He is still incarcerated. I know that NC has harsh drug laws. I am just trying to see if there is anything that can be done to help him be released any sooner than even the minimum amount of time that he has been given. Please help!

  3. Gladys Williams says:

    Second degree Murder in 2008 she had a DWI for the second time there was a wreck people died. She became a B felon.
    Has the structure sentencing law changed will it change in our state of NC?
    My daughter got 16 years. Is there any hope of structure scenting might be amend to some point of points in the prisons system or parole or doing away with a law that is so bad it helps no one, just cost the tax payers lots of money to house these people.Who could take care of them self.

  4. Cathy Mcdowell says:

    I am currently on probation for drug charges. The first in 2010. While obviously probation got convicted of conspiracy marijuana charge, my second felony . Now still on probation got charged with possession of methamphetamine. Will I be charged habitual if convicted door current charges.

  5. Donna Powell says:

    My boyfriend is a hubutal felon and got 6.8 years can he get probation at 5.8 years just wonder

  6. A.R. Page says:

    No matter how harsh the people in politics want to be. The habitual felon law is illegal and it is wrong. The truth of the matter is, I and many others believe in rehabilitation. In the prison system you will find that there are some rehabilitation programs, but most of them are very much a joke. The entire prison system needs to be overhauled. Let the time fit the crime. If a man has been found or plead guilty and served his sentence, then that should be over and in the past. Let the Judge have a sentencing guideline for each class of crime and let the Judge sentence each case at his own discretion. What the law and politics has done is planted a deceitful seed in the media. I will tell you first hand and truthfully, most non violent criminals are not dangerous. Most suffer from some type of mental disorder and or drug addictions. I think the public should know the truth, a big part of the habitual felon get tough on crime law is and was a welfare reform and job creation law. It simply gave reason to build mega prisons in poor area’s to create jobs for the people who was too lazy to work at a real job. If you go to any prison in North Carolina you will see many fat out of shape women and men who are very unprofessional and just plain ignorant to life skills. I am not saying this to put anybody down, but to let the public know the truth. The habitual felon law should be repealed completely and replaced witha common sense law along with real rehabilitation. A big part of recidivism is the fact that there are no jobs and no help for an ex prisoner to get started and make it. When all your propagand does is deter the public from having anything to do with an ex prisoner, how do you expect them to make it. Matter of fact maybe the system is designed for men and women to repeat and repeat crime because it is job security for those welfare reform people and thier families. There is alot in this world wrong and alot of it can easily be corrected with common sense and common decent thinking. The illegal habitual felon law is one easy fix if the justice system will use common sense in their thinking. Hey its simple, those dangerous murderers and rapist and child molesters should never get free again anyway and that would be your welfare reform and job security. Those who are not violent and not dangerous should be rehabilitated to the best of their ability and should be helped as much as possible. they are human beings with problems that can or could be solved. I hope this true information will get read by someone who cares and who has enough decency to make changes. If you are a D.A. or a judge or a law official and you play part in sentencing anybody as a habitual felon, then you are just as much a criminal as the person you just sent to prison on an illegal law. Thank you for your time and if you are just a person concerned about a family member or friend, please send a letter to the Governor and your congressman, and let them know that you feel this is a wrong, bad and illegal law. It only takes and hour or so to write a couple of letters and mail them. Thank you and God Bless. A.R. Page

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