New Criminal Offenses and New Credit Policies for Prisoners

Last year was a difficult one for North Carolina’s prison system. One correctional officer was killed by an inmate at Bertie Correctional Institution. Four staff members were killed during an attempted escape at Pasquotank. Today’s post summarizes some of the statutory and regulatory changes made in response to those incidents.

Revised criminal offenses. Each of the changes below is effective for offenses committed on or after December 1, 2018.

Malicious conduct by prisoner under G.S. 14-258.4(a), a Class F felony, is broadened to cover any prisoner who throws, emits, or uses as a projectile an unknown substance at an employee. Previously, that law only applied to bodily fluids and excrement. S.L. 2018-67.

The same legislation also creates a new version of the offense: a prisoner knowingly and willfully exposing genitalia to an employee while the employee is in the performance of his or her duties. That is a Class I felony under new G.S. 14-258.4(b).

A final new provision is added to the malicious conduct by prisoner statute saying that “[s]entences imposed under this Article shall run consecutively to and shall commence at the expiration of any sentence being served by the person sentenced under this section.” G.S. 14-258.4(d). I have to think that the intention was for the sentence for any malicious conduct committed by a prisoner to run consecutively to the sentence the defendant was serving when the malicious conduct occurred. But, as John Rubin pointed out in his 2018 legislative summary, the new provision doesn’t exactly say that. It says Article where it might have meant section, making it unclear whether the rule applies to all new sentences imposed for offenses listed in Article 33 of Chapter 14, and whether it applies to defendants serving time for any offense or just the offenses set out in G.S. 14-258.4.

The same act also rewrites G.S. 14-258, retitling it as “Providing forbidden articles or tools for escape; possessing tools for escape.” The revised law makes it a Class H felony to sell, trade, convey, or provide to a prisoner any article forbidden by prison rules or any item or message meant to aid in an escape, assault, or insurrection. The crime is elevated to a Class F felony if an escape, assault, or insurrection actually occurs. The same statute makes it a Class H felony for an inmate to possess an item meant to effect an escape or aide in an assault or insurrection. G.S. 14-258(d).

Policy changes related to sentence credits. In addition to the new crimes described above, the Department of Public Safety also amended its policies and procedures related to sentence credits and disciplinary procedures to discourage and respond to assaults on staff.

Under the revised sentence credit policy, inmates found guilty of an assault on staff resulting in physical injury are subject to having accrued credits forfeited (as determined through the disciplinary process) and to being ineligible for future credits. Similar language is added for Good Time, Earned Time, and Meritorious Time. If accrued credits are forfeited, a new provision in the policy states that they may not ever be restored.

The revised policy on offender disciplinary procedures creates a new set of response sanctions for inmates found guilty through the disciplinary process of a Class A03 violation, which is one involving an assault on a staff member with a weapon, or by any other means likely to produce injury, such as hitting, kicking, pushing, pulling, or throwing objects. Those sanctions include:

• Forfeiture of all previously accrued Good Time, Earned Time, and Meritorious Time;
• The inability to earn future credits;
• Suspension of personal visitation privileges for 12 to 24 months; and a limitation to non-contact visits thereafter;
• Consideration for out-of-state transfer through the Interstate Corrections Compact; and
• Placement in restrictive housing for a minimum of 12 months.

The new administrative policies could have a dramatic impact on many defendants found guilty of Class A03 violations. The upshot of the no-credit rule will be that felony inmates with those infractions will serve their maximum sentence (minus 9, 12, or 60 months, as the case may be), not their minimum. And impaired driving inmates with those infractions will serve twice as long, because their sentences will not be cut in half by Good Time.