Changes to the Habitual Felon Law

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.

29 comments on “Changes to the Habitual Felon Law

  1. 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

  2. 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. 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. 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.

    • Get off of the dang drugs and you won’t have these problems ffs. Your parents must be so proud. smfh

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

    • really….find a new boyfriend

  6. 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

    • So if a man molests children over and over and gets caught each time he shouldn’t be considered a habitual offender and prosecuted as such?

      • If a man or woman has been found guilty by judge or jury and that individual has prior convictions for 3 or more criminal sexual offenses, then in my opinion they deserve the maximum sentence allowable by law upto 20 years on the NC 3 strikes law. The 3 strikes law applies to aggravated felonies that were comitted with a weapon of any nature as to cause serious injury or death. Sexual crimes against children are not a victimless crime and deserving of the most harsh sentence allowable by law!

        • WRONG! There does not have to be a weapon involved to be sentenced as a habitual felon. One does not have to be charged with a violent crime at all. I worked in the corrections field for over 10 years and the vast majority of people I witnessed getting a habitual felon sentence, was people that had NON VIOLENT drug charges! It doesn’t take much intelligence to understand that there is a HUGE problem with the judicial system when there is more money being poured into prisons than there is schools!!

      • Clearly you are not reading or you simply want to argue. The post stated “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”. So obviously the writer did not say anything close to what you are asking “are you serious?” about!! Read first, comment second!

      • He should get more time then a drug dealer but they don’t

    • I agree with you. my son is in under habitual felon. Yes he has/had a drug problem. And there was no rehabilitation. Why cant they get that first even if they have to stay at a rehabilitation center for a year or longer. They get no help in prison. In the county i live in a woman killed and cut up her 9 year old step daughter. And throwed her body parts out in different areas. And she got less time than my son. Theres something wrong with the system. When you can murder and get out in less time. Yes my son deserves time but not 15-22 years.

      • You are sadly absolutely correct!! The habitual felon sentencec makes absolutely NO SENSE for NON VIOLENT drug offenders! A non violent offender can get upwards of 10-15 years but a child molester or baby killer can easily get 10 years or less more times than not! NC is the worst! Think about it, it is all about money and NC loves money. Some of the highest property taxes, gas taxes, tobacco taxes and alcohol taxes in the country! So why wouldn’t they be overly harsh on non violent drug offenders when they are guaranteed approximately $60,000 per year, per inmate?!

    • I would like to speak with you more on this topic. Trying to find avenues to help someone who has already served 15 years on habitual felon sentence on nonviolent charges.

      • My heart just breaks when I see this, especially when I have personally seen (while working 10 plus years in corrections) many, many pedophiles, baby killers and rapist get a much lighter sentence! If you are a non violent drug offender being charged with a habitual felon, you might as well have killed someone, you would get sentenced to less time in most cases! By all means, do some research if you doubt my information.

      • I agree the laws are boyfriend had a drug problem for years and shoplifted to keep up his habit…sometimes being charged with felony larceny as the merchandise was over 1000…he was charged with habitual felon in several different co in nc and received a total of 15 years for shoplifting/larceny 15 years after already serving time on original charges years ago he was caught again and hit with habitual…its crazy and they get away with this double jeopardy by saying habitual is a whole new charge..the man on our street got less time for molesting his two step children than my boyfriend for felony larceny…rob a bank get less time..but shoplift and you will be laid down…smh i wpuld love to try to find a way to change his sentence..but i dont believe this habitual offender will lose out the state is naking a fortune jousing theses inmates in terrible conditions!! Change habitual law for less serious crimes..put away the real criminals

        • My name is Debbie also bf is going thru same exact thing sane amount of time…his heroin addiction and reason for commuting these crimes has never been addressed …the crimes he committed this last time were all misdemeanors enhanced to felony charges..pls direct me towards some one who may see the unjust…free these men..mine has already been gone seven years…had he robbed a bank he would have got less time….is there any help out there

    • In need of assistance. I have a love one who has served over 15 years for nonviolent habitual felon. He was sentenced to two habitual felon charges when told he would be sentenced to one. He was given 20 years for theft of around $6,000. I feel this has to be illegal. I’m searching for any help out there and resources I can get.

      Thanks in advance

    • Sorry but if you break the law over and over you are a habitual felon. After the first charge do rehabilitation and training in jail and have counseling and help after release. After that you keep getting in trouble too bad.

  7. I have a question. Not knowing how the system is here in NC, cause I’m from up north. If someone is already out on bond, no probation but goes back for a misdemeanor charge. I see the bond was doubled. IF pleading guilty, accepting the time served, does that additional bond go away after? Or does it stay?

    • Marlene, the additional bond does not go away after. it stays for instance…..

      a person gets charged with a crime and gets $50,000 bond. they get out on bond and come back in with a second charge and bond is $100,000… the mean time they plead to the 1st case. the 2nd case is not heard, his bond would be $100,000 when the sentence for 1 is completed. if there is no active sentence (prison/jail) and they get probation…..the bond will still be at $100,000 until he can make it or its lowered.

  8. I am habitual felon. I got a new charge of possession of schedule 11 (pills) which someone lefted in my truck. I gave them back to the owner but got charged with a felony. No officer searched my truck and found them! How can they charged me with possession when NO law enforcement saw them n my possession??

    • What was the premise that they charged you?? You state that they did not find them in your truck, but if they found them on you and you have no prescription for them, perhaps that is why. I would ask my attorney to get the owner to testify on your behalf that you were holding them for them, if that was the situation.

  9. My husband was hit with a habitual felon charge for 8/11 years; nonviolent. I believe that the original charge would’ve gotten him this much time. I was wondering if there is something that I can look up or look into to find out why he got this charge and this amount of time.

  10. I feel like the two counties that sentenced my husband as a habitual felon law over charged him it was non violent and he hadn’t been in no real trouble in 10 yrs i need an attorney to look into this

  11. Help!!!! My fiancee is a habitual felon . He recently did ten years and was let out on good behavior in May of 2018. While incarcerated, he received another charge possession of a cellphone in jail in 2017 which he plead not guilty. Now this charge was pending even on his release with something called a 15 month open plea stipulation. He had to go back to court in July unfortunately some miscommunication as far as info his lawyer had on him. Upon this happening, he didn’t go to court and the lawyer tried to fight for continuous but instead judge issued a warrant and a 25,000bond which is to the extreme for a failure to appear. Now they are trying to give him time for something bye can’t get in jail this one correctional officer is seeking these phones to inmates and then busted them with it and also going as far as planting it on. What i can i do to help my fiance? He has been doing the right thing since he has been home. I understand nc needs money but this is to extreme. To let him out on his behavior and look how it’s rewarded. Help on how to bring him home.

  12. Please help ive been in some trouble in my past but have been good for the most part for 3 years sense I got out from my last bid. I have been convicted of felony attempted possesion of stolen motor vehicle, then felony possesion of meth, and then felony possesion with intent for sale and deliver. All separate convitcons and recently got charged for possession of meth for 0.01 of a gram it was residue on the sides of a little tin box, the box was little about 2&1\2 inches long between 1\4 & 1\2 inch thick. I have been a wild child in my last but i have a family now and have been trying to do better but everyone makes a coule mistake
    threw life. Anyway I have been charged with habitual felon for the residue in the tin as possesion of meth, I know it’s another felony but it was so miniscule but the d.a refuses to cut me a deal. Any advise or words of encouragement would be greatly appreciated ive tried so hard to stay outta trouble to just have to go back on something so tiny for such a large amount of time I have a wife and a 6 year old . Plz help me I don’t want to miss anymore of my little girls life then I already have my emails please help