Fair Sentencing in a Nutshell

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North Carolina’s first attempt at a presumptive sentencing law was the Fair Sentencing Act (FSA). The law was in effect for offenses committed from July 1, 1981 to September 30, 1994, and it continues to apply to offenses committed during that date range. A defendant being sentenced now for a crime of that vintage is not entitled to a sentence under today’s law, even if doing so would result in a far lower sentence. State v. Whitehead, 365 N.C. 444 (2012) (holding that the legislature did not intend for Structured Sentencing to apply retroactively, and rejecting the defendant’s argument that retroactive application was required under the Eighth Amendment). Almost every week I am asked about Fair Sentencing—either for an older crime being prosecuted now for the first time, or in relation to the resentencing of an inmate serving a Fair Sentencing sentence. This post addresses some of the most frequently asked questions about the FSA.

Can you send me the FSA sentencing grid? The FSA didn’t use a grid like we have today. It did, however, organize felonies into different offense classifications based on their seriousness (Class A through J), and set presumptive and maximum sentences for each class of offense. Many offenses were the same offense class under Fair Sentencing as they are today, but if you ever need to know for sure, please don’t hesitate to ask. Here is a table of presumptive and maximum terms for each class of offense.

The presumptive sentence applies by default. The judge could deviate from the presumptive if he or she made written findings of aggravating or mitigating factors. It was mandatory under the FSA for the judge to consider the list of factors set out in G.S. 15A-1340.4(a)(1) and (2). With findings of a single aggravating factor the judge could impose a sentence up to the statutory maximum set out above. No findings were required in support of a non-presumptive sentence if (1) it was imposed pursuant to a plea agreement, or (2) the aggregate prison term of certain consolidated judgments fell between the presumptive and maximum terms for the most serious felony and did not exceed the sum of the presumptive terms of all the consolidated crimes. G.S. 15A-1340.4(a) (1983). (The first exception seems a little more user-friendly than the second!)

As written, the FSA required aggravating factors to be proved to the judge by a preponderance of the evidence. But for any case sentenced or resentenced today, the Sixth Amendment jury trial right described by the Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004), would surely require any aggravating factor other than a prior conviction to be proved to the jury beyond a reasonable doubt, unless the defendant admitted to it.

How does a person’s prior record count under the FSA? There was no formulaic calculation of a “prior record level” under the FSA. Rather, it was a statutory aggravating factor to have a prior conviction for an offense punishable by more than 60 days’ confinement. Under the FSA’s definition, judgment had to be entered before a prior conviction counted, and so a PJC did not qualify. State v. Southern, 314 N.C. 110 (1985).

How did probation work under the FSA? In general, a judge could suspend the sentence and place a defendant on probation for any crime not punishable by a minimum term of life imprisonment. G.S. 15A-1341(a) (1983). Some specific crimes also required an active term of imprisonment, like armed robbery. The longest permissible probation period was 5 years. A split sentence was allowed for any crime with a maximum penalty not exceeding 10 years, with the active portion of the split not to exceed six months or one-fourth the maximum permissible penalty for the crime, whichever was less. G.S. 15A-1351 (1983).

Does the prison system really cut FSA sentences in half? Yes. By statute, FSA non-life sentences received Good Time credit at the rate of one day deducted for every day in custody without a major infraction, which essentially cuts a sentence in half. G.S. 15A-1340.7(b) (1983). Further reductions were possible through Gain Time (awarded for working or participation in other prison programs) and Meritorious Time (for heroism or exemplary acts beyond normal expectations).

9 comments on “Fair Sentencing in a Nutshell

  1. Please talk a bit about how DWIs fit under the FSA and what the legal basis is for the DAC (formerly DOC) policy to not allow it for the new Level A1.

  2. People will often say that DWIs are covered under Fair Sentencing, but they are not–and never were. DAC has, over the years, chosen to apply the same day-for-day Good Time credit rule to DWIs that was statutorily required for Fair Sentencing felonies. But that was a discretionary choice, not something required by law. Regarding the aggravated level one DWI issue, my understanding is that DAC does not award Good Time for Level A1 inmates. In my opinion that, too, is a matter of discretionary policy, not something dictated by statute. (Not everyone agrees on that; I think some people think that the statutory prohibition on parole for Level A1 DWIs also limits the Department’s authority to award credits.) Shea and I talked about that in this post, http://nccriminallaw.sog.unc.edu/?p=4366.

  3. client sentenced pre-blakely to 2nd degree life. Appeal was not perfected until after Blakely. Could an argument be made that Blakely should apply? I made the argument to the COA and the Supremes and got nowhere. Also, is a 2nd degree life under fsa for the rest of the man’s natural life?
    Thanks

  4. A quick question pertaining to the DMV’s license reinstatement policy for infractions that occurred during the FSA period of time.

    Would the policies in effect at the time govern a reinstatement, or would current policy dictate the procedures for a reinstatement if the conviction happened post that era?

  5. Does the Good Time and Gain Time credit come off the minimum or the maximum sentence?

    • Under the FSA I was sentenced to 20 years and by the time I hit state (NC DOC) my 20 years was down to 10 years. Gain time came off the end (10 years) of my sentence that I was working. Jail credit was also deducted from the back side of the 10 I was working. Under the New Law (Structured Sentencing Act of Oct. 1, 1994, Jail Credit, Gain time and Merit Time (Working 7 days a week) all comes off the Max which you can work your Max down to your Minimum sentence. Hope this helps.

  6. My father was sentenced to life under the fair felons act. He committed a class c crime. Is there a chance he will ever come out of prison after serving 23 years?

  7. My brother committed his crime (First Degree Murder) in 1989. His sentence was “Life in Prison.” Will he ever be eligible (or potentially be considered) for supervised parole?

  8. Hi, my boyfriend was sentenced under the “Fair sentencing Act” in North Carolina and is one of a few (1.000) left that North Carolina is trying to “flush out”. My boyfriend is waiting to be moved to Minimum now after 24+ years and I was wondering if there’s more to read on this measurement and how many are actually left being sentenced under this “old law”.
    From what I’ve heard it’s possible for a lot of those felons can hope to come home at some point (at least work-release, minimum security, honor grade, etc..).
    I would appreciate as much info as possible. Thank you.

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