Frequency of Parole Reviews

North Carolina did away with parole for most crimes with the adoption of Structured Sentencing in 1994. Parole is still permitted in certain impaired driving cases, but infrequently granted in practice. Still, there are over 1,300 persons on parole in North Carolina. They are mostly former inmates who served time for serious offenses under Fair Sentencing (effective from 1981 to 1994) or other prior law. There are also over 2,000 inmates in prison serving sentences that are now or will one day be eligible for parole. Today’s post considers the law of how often those inmates are considered for parole.

Parole decisions are made by the Post-Release Supervision and Parole Commission (the Commission) in Raleigh. The baseline rule for how often the Commission must consider a parole-eligible inmate for parole is in G.S. 15A-1371(b)—or perhaps I should say was in that statute, because the portions of it applicable to crimes other than DWI was repealed over 20 years ago. Still, the law continues to apply for sentences being served for offenses committed before October 1, 1994. It’s not in the current edition of the General Statutes, but you could find it in the General Assembly’s session laws. The most recent substantive amendment was made by S.L. 2015-228, should you ever need the text of the law.

Looking at that text, you’d see that for most parole-eligible inmates, the Commission must consider the inmate for parole at least once a year until parole is granted (or the sentence is fully served).

A change to the law made in 2008 (S.L. 2008-133) allows the Commission to consider parole for inmates serving parole-eligible sentences for first or second degree murder every three years instead of annually. That change was made effective for parole reviews conducted on or after October 1, 2008.

A subsequent change to the law made in 2015 (S.L. 2015-228) created another exception to the annual-review rule, allowing the Commission to consider parole every two years for inmates serving parole-eligible sentences for sexually violent offenses, as that term is defined in G.S. 14-208.6(5). You may recognize that as the law that defines most of the North Carolina crimes that require registration as a sex offender. That change was made effective for parole reviews conducted on or after October 1, 2015.

For either of the categories of inmates exempted from the annual-review rule, the Commission may give more frequent consideration if exigent circumstances or the interests of justice demand.

These recently decreased parole review frequencies are obviously a change to the law that existed back when the inmates covered by these statutes committed their crimes (before 1994). And that type of change invites the argument that the amended statute is an unconstitutional ex post facto law to the extent that it retroactively increases a person’s punishment by decreasing the frequency of opportunities to be released on parole, and therefore the likelihood of actually being released.

The leading case on that issue is Garner v. Jones, 529 U.S. 244(2000). In Garner, the Court held that a change in Georgia law reducing the required frequency of parole reviews from at least every three years to at least every eight years for life-sentenced inmates did not, based on the record before the Court, violate the Ex Post Facto Clause. The Court found it important that the law allowed the Georgia Parole Board discretion to conduct reviews more frequently in its discretion, and to grant expedited reviews in response to a change in circumstances. See also California Dep’t of Corr. v. Morales, 514 U.S. 499 (1995) (upholding a statute increasing the permissible interval between parole reviews from one year to three when the law did not change the statutory punishment for an offense, did not change the timing of a person’s initial parole eligibility, and did not change the “basic structure” of the state’s parole laws).

In cases applying Garner and Morales, North Carolina’s revised parole review rules have been upheld against ex post facto challenges. See, e.g., Hunt v. Rand, No. 5:10-CT-3139-FL, 2011 WL 3664340 (E.D.N.C. Aug. 19, 2011) (three-year parole review for murder), aff’d, 461 F. App’x 327 (4th Cir. 2012); Atwater v. Butler, No. 5:15-CT-3229-FL, 2018 WL 4623634 (E.D.N.C. Sept. 26, 2018) (biannual parole review for sexually violent offense).

One additional statute has a bearing on how often the Commission must review certain inmates for parole. Under G.S. 143B-721.1, the Commission must analyze the sentence of every parole eligible inmate each year and compare the time served by those inmates to the time comparable inmates would serve under Structured Sentencing. If a person has served more time in custody than he or she would have served if sentenced to the maximum sentence under Structured Sentencing (defined in this context as the top of the presumptive range in Prior Record Level VI) then the Commission is required to reinitiate the parole review process for the inmate. In the lone reported case really applying that law, the court determined that an inmate who had served 27 years and 9 months (333 total months) on his 1991 life sentence for rape and sexual offense had not yet spent more time in prison than a comparable inmate sentenced under Structured Sentencing would serve, which would be 592 months under the maximum sentence rule set out in the statute. Atwater, 2018 WL 4623634 at *5.