Time Actually Served

A defendant is sentenced to 10–21 months for a Class H felony. How much time will he or she actually serve? What about a Class D felon sentenced to 59–83 months?

Here is a chart showing the average percentage of minimum active sentence served for Structured Sentencing felons released from prison in fiscal year 2013/14.

Class B1    102% (estimated)
Class B2    102% (estimated)
Class C      101%
Class D      103%
Class E      105%
Class F      104%
Class G      106%
Class H      112%
Class I       113%

These numbers are for active sentences. They do not include revoked probationers.

The general trend is clear: the more serious the crime, the better the defendant does at working down toward the minimum sentence. Why is that?

The main reason is that the relatively short sentences for low-level felons do not allow those inmates much of an opportunity to accrue Earned Time. Earned Time is the primary sentence reduction credit that Structured Sentencing inmates receive for work and educational programs in prison. Earned Time reduces an inmate’s maximum sentence down toward (but never below) his or her minimum, through a process I described here (for Class B1–E felons) and here (for Class F–I felons).

Earned Time is awarded at different rates—3, 6, or 9 days per month—depending on the rating of the inmate’s work or program assignment. For example, inmates who do 4 to 6 hours of unskilled labor each day are rated Earned Time Credit Level I, and they earn 3 days off their maximum sentence each month. Inmates who do 6–8 hours of skilled labor each day are rated Earned Time Credit Level III and get 9 days deducted each month. All of the details are set out in the N.C. Department of Public Safety’s policy on sentence credits, available here.

It takes a little bit of time for an inmate to get into a job or program that accrues a lot of Earned Time. And that is time that low-level felons generally don’t have. By the time they get through classification (approximately two weeks) and settled into their ultimate correctional institution, they’re already approaching their mandatory release point (maximum sentence minus nine months). That is especially true for inmates who arrive at prison with a substantial amount of pretrial credit, as no Earned Time credit applies to the portion of the sentence served in the jail before conviction. A serious felon, by contrast, will—even after pretrial jail credit is applied—have ample time to get assigned to a job or program that accrues Earned Time at a high clip.

In 2011, the Division of Adult Correction made a policy change that mitigated this phenomenon a little bit. The revised policy increased the overall Earned Time rate from 2, 4, or 6 days per month to 3, 6, or 9 days, and provided that even “Assignment Pending” inmates (those not yet assigned to a job or program) would receive 3 days per month by default. Previously that group did not receive any Earned Time credit at all, which disadvantaged short-sentenced inmates, who spent a greater percentage of their total sentence awaiting an assignment. The revised policy helps more inmates work more time off their maximum sentence—and of course reduces the prison population in the process.

Above all, note that inmates generally are not released onto post-release supervision upon serving their minimum sentence. It would be unrealistically optimistic (from the defendant’s point of view) to advise them that they will be. If you want my advice about how to advise, it goes something like this:

Earliest possible release (absent Advanced Supervised Release): Minimum sentence.
Latest possible release: Maximum sentence minus 9, 12, or 60, depending on whether it’s a Class F–I, B1–E, or B1–E sex crime, respectively.
Typical release: Percentage of minimum indicated in the chart above.

Let’s apply that approach to the hypothetical inmates I mentioned at the outset.

Class H, 10–21 months
Earliest release: 10 months
Latest release: 12 months [MAX – 9]
Typical release: 11.2 months [112% of MIN]

Class D, 59–83 months
Earliest release: 59 months
Latest release: 71 months [MAX – 12]
Typical release: 60.8 months [103% of MIN]

Thank you to the staff of the North Carolina Sentencing and Policy Advisory Commission (who factor these numbers into their eerily accurate prison population projections) and to DAC’s office of Rehabilitative Programs and Services for helping with this post.