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. Continue reading
Tag Archives: good time
Last week I got drawn into a discussion about a North Carolina local government official convicted of DWI. The question was whether he was getting “special treatment” when his 60-day sentences were cut in half to 30 days. As most readers of this blog know, there’s nothing special about that: most active DWI sentences (except for aggravated level one) are effectively cut in half by Good Time, pursuant to N.C. Department of Public Safety administrative policy. Today’s post considers a related wrinkle: when a DWI defendant has jail credit, should that credit be applied before or after the sentence is “cut in half”? Continue reading →
Do DWI sentences really get cut in half? Can DWI inmates be paroled? What happens when the minimum and maximum sentence for a DWI are the same? These questions and more are answered in today’s video post.
The most serious level of misdemeanor DWI is Aggravated Level One, which I generally refer to as Level A1. A defendant convicted of driving while impaired is subject to sentencing at Level A1 if three or more grossly aggravating factors apply. G.S. 20-179(c). Typically, defendants sentenced at this level are repeat offenders, though it is possible to reach Level A1 if one drives while impaired with a person under 18 in the vehicle, with a license that is civilly revoked for an earlier DWI charge that did not result in conviction, and, in the process, causes serious injury to another.
A defendant sentenced at Level A1 may be fined up to $10,000 and must be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. G.S. 20-179(f3). The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days.
Because Level A1 is a relatively new level of punishment—it applies to offenses committed on or after December 1, 2011—many litigants, judges, and defendants have questions about the legal requirements for such sentences and how the sentences are administered.
Below are the three questions I hear most often.
1. May the judge credit against a Level A1 sentence the time a defendant spent in inpatient treatment?
Yes. G.S. 20-179(k) allows a judge to credit against a term of imprisonment ordered for any level of DWI, including Level A1, the time a defendant was an inpatient at a treatment facility operated or licensed by the State for the treatment of alcoholism or substance abuse. To be eligible for credit, the treatment must have occurred after the defendant committed the DWI offense for which he or she is being sentenced.
The judge also may order that special probation (in other words, a split sentence) imposed pursuant to a suspended Level A1 sentence be served at a facility operated or licensed by the State for the treatment of alcoholism or substance abuse. The defendant must have been accepted by the facility for admission or commitment as an inpatient and must bear the expense of any treatment unless the judge orders the State to absorb the costs.
2. How much of an active Level A1 sentence will a well-behaved defendant actually serve?
The defendant will serve the maximum term of imprisonment imposed, less four months. A defendant sentenced at Level A1 is not eligible for parole. The defendant must, however, be released to post-release supervision four months before the expiration of his or her maximum term. No good time credit is being awarded to reduce Level A1 sentences, even though the applicable Division of Adult Correction (DAC) regulations, which were last amended before the enactment of Aggravated Level One sentencing, provide that inmates “convicted of Driving While Impaired” are awarded good time credit at the rate of one day deducted for each day served with good behavior. Though the regulations do not distinguish among levels of DWI, DAC has determined that the credit does not apply to Level A1 sentences.
Thus, regardless of how he or she behaves, a defendant sentenced to 36 months imprisonment for Level A1 DWI will be released to post-release supervision after serving 32 months. A defendant sentenced to 12 months imprisonment for Level A1 DWI will be released to post-release supervision after serving 8 months imprisonment.
3. May a judge allow a defendant to serve a Level A1 sentence on weekends?
Yes. A judge may order a term of imprisonment for any level of DWI to be served on weekends. G.S. 20-179(s), which applies to all levels of DWI sentencing, provides that if the defendant is ordered to a term of 48 hours or more, he or she must be required to serve 48 continuous hours of imprisonment to receive credit for time served. This means that a judge could order an entire 36-month Level A1 sentence to be served in 48-hour increments.
Split sentences for Level A1 DWIs also may be served on weekends and must likewise be served in 48-hour increments. Any non-continuous period of imprisonment for a split sentence may only be served in a designated local confinement or treatment facility rather than in a DAC prison. See G.S. 15A-1351(a).
(Editor’s note: Jamie Markham is a co-author of this post.)
Level A1 DWI. The General Assembly created Aggravated Level One sentencing for misdemeanor impaired driving in 2011. See S.L. 2011-191 (enacting G.S. 20-179(f3)). Level A1 sentences require a term of imprisonment that includes a minimum term of 12 months and a maximum term of not more than 36 months. Unlike defendants sentenced for lower levels of impaired driving, a defendant sentenced under Level A1 is not eligible for parole. Such defendants are instead subject to a term of post-release supervision to commence four months before the end of the maximum imposed term of imprisonment. They also are subject to the general provision in G.S. 20-179(p)(2) that requires a defendant to “serve the mandatory minimum period of imprisonment.”
Back when the law was passed, we wrote (here and here) about the difficulties associated with applying each of these sentencing requirements to Level A1 sentences while at the same time awarding good time credit pursuant to Division of Adult Correction policy. For sentences of certain durations, we noted that it would be a challenge to square the early release for post-release supervision with the law’s mandatory minimum period of incarceration—especially if good time credit would effectively cut the sentence in half. Given these ambiguities, we weren’t sure how DAC would administer the sentences.
Today, more than 200 inmates are serving Level A1 sentences. We thought we’d share what we know about how those sentences are playing out in practice.
Good Time Credit. Good time credit is not being applied to reduce Level A1 sentences. That’s a departure from the rule that generally applies to misdemeanor DWI sentences, which may be reduced for good behavior pursuant to regulations adopted by the Secretary of Public Safety. G.S. 148-13(b).
The regulations, which were last amended before the enactment of Aggravated Level One sentencing, provide that inmates “convicted of Driving While Impaired” are awarded good time “at the rate of one day deducted for each day served in custody for good behavior and/or without an infraction of inmate conducts [sic] rules.” Though the regulations do not specify their applicability only to certain punishment levels, the Division of Adult Correction has determined that they do not apply to Level A1 sentences.
The absence of this credit is significant. A defendant sentenced to 24 months imprisonment for a Level A1 DWI will be released to post-release supervision after 20 months of imprisonment. In contrast, a defendant sentenced to 24 months imprisonment for a Level One DWI who receives good time credit for each day served will be released outright after serving 12 months.
Moreover, in many circumstances, a defendant may serve a longer term of imprisonment for a Level A1 DWI than for habitual impaired driving, a Class F felony. A defendant who receives the maximum term for a Level A1 DWI will be released to post-release supervision after serving 32 months of imprisonment. In contrast, a Prior Record Level II habitual DWI defendant sentenced at the high end of the presumptive range will be released after 23 months at the latest.
Post-release supervision. In earlier posts we said we were unsure what DAC would do if the four-month early release for post-release supervision for Level A1 DWI sentences caused a defendant to dip below the 12-month mandatory minimum sentence of imprisonment for the crime. It turns out DAC will give full effect to the early release. So, for example, a Level A1 defendant who receives a 12 month sentence will be released onto post-release supervision after serving 8 months of imprisonment. The person will be on post-release supervision for four months with the remaining four months of imprisonment hanging over his or her head.
Shea Denning summarized S.L. 2011-191, Laura’s Law, in a prior post. To recap, the law adds a new punishment level for impaired driving sentencing, Aggravated Level One (hereinafter Level A1), for situations in which three or more grossly aggravating factors apply. Today’s post picks up on some of the points Shea mentioned in her earlier post. I especially want to focus on the law’s requirement of post-release supervision of Level A1 offenders.
The permissible punishment for a Level A1 sentence is a fine of up to $10,000 and sentence that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. The court can suspend the sentence only if it requires the offender to serve a split sentence of 120 days. Though the law appears to instruct the judge to impose a minimum sentence, the effect of that minimum is not altogether clear. Typically, the minimum imposed in a DWI sentence is for determining parole eligibility under G.S. 15A-1371 (which says that a DWI inmate is parole eligible upon completion of the lesser of the minimum or one fifth of the maximum penalty allowed by law, less good time), but Laura’s Law says that Level A1 inmates are not eligible for parole.
The law does, however, say that Level A1 inmates shall be released from the Department of Correction “on the date equivalent to the defendant’s maximum imposed term of imprisonment less four months and shall be supervised by the Division of Community Corrections under and subject to the provisions of Article 84A of Chapter 15A of the General Statutes . . . .” Article 84A of Chapter 15A is the post-release supervision article. Up to now, it has only applied to Class B1 through E felons, but come December 1—under Laura’s Law and Justice Reinvestment—it will apply to all felons and Level A1 DWI misdemeanants. Though no conforming change was made to Article 84A (G.S. 15A-1368.2(c), specifically), new G.S. 20-179(f3) indicates the period of supervised release for Level A1 DWI offenders will be the same as the amount of time the offender will have remaining on his or her active sentence when released: four months.
So when exactly does a Level A1 DWI inmate get released onto PRS? On “the date equivalent to the defendant’s maximum imposed term of imprisonment less four months,” right? The problem is that that statutory language is slightly different from the language in existing law for determining PRS release dates for felons. Under G.S. 15A-1368.2(a), a felon is released from prison for post-release supervision “on the date equivalent to his maximum imposed prison term less nine months [or 12 months for Class B1–E felons or 60 months for sex offenders, as the case may be under new law], less any earned time awarded by the Department of Correction.” DWI inmates don’t get earned time, but they do get good time under G.S. 15A-1355(c), G.S. 148-13(b), and applicable DOC regulations. And the good time rule—which applies to all DWI offenders regardless of punishment level—is more generous to inmates than the earned time rule in that it cuts DWI sentences in half. The thing is, there is no parallel provision in Laura’s Law about subtraction of good time from the offender’s “maximum imposed term of imprisonment” for determining the PRS release date. In other words, the law does NOT say the person is released four months early, less good time.
It remains to be seen how DOC and the Post-Release Supervision and Parole Commission will interpret that difference. The fiscal note accompanying the bill, prepared in consultation with DOC, figured that Level A1 offenders would serve the same average proportion of their maximum term as Level One DWI offenders, 41 percent, so they must have assumed that good time will apply. If that’s right, then any Level A1 DWI maximum sentence from 12 months to 24 months will be functionally the same from the (well-behaved) defendant’s point of view. It will be a 12-month sentence, because that’s as low as you can go without dipping below the statutory mandatory minimum under G.S. 20-179(p)(2), which says that good time credit “may not be used to reduce that mandatory minimum period.” There is no requirement that the inmate have completed substance abuse and assessment and treatment prior to release on post-release supervision; that limitation applies only to releases on parole under G.S. 20-179(p)(3).
Even if you set aside the good time credit issue, there is still a question about whether a person may be released on post-release supervision before serving the 12-month mandatory minimum for a Level A1 DWI. Different statutory provisions point in different directions. New G.S. 20-179(f3) says a person “shall be released” when he or she is four months from the maximum, but existing G.S. 20-179(p)(2) says a defendant “shall serve the mandatory minimum period of imprisonment.” G.S. 20-179(p)(3) isn’t really helpful either way; it says a person may not be paroled unless he has served his mandatory minimum, but it makes no mention of release on post-release supervision. To flesh that out a little, suppose a defendant is sentenced to a 14-month maximum. G.S. 20-179(f3) would say release him to PRS at 10 months (or 8 months if you allowed the maximum to be reduced to 12 months by good time credit). But G.S. 20-179(p)(2) says he must serve the statutory 12-month minimum. Comparable “truth-in-sentencing” principles under Structured Sentencing (G.S. 15A-1340.13(d)) would say he must serve the minimum, but Structured Sentencing minimums and maximums are designed to avoid this very problem: there is a constant 20 percent difference between every minimum and its corresponding maximum, with additional time built in to the maximum for the possibility of post-release supervision revocation. The DWI sentencing law simply isn’t set up that way. So again, we’ll need to wait to see how DOC will resolve the ambiguity.
(If it’s any consolation, release-date calculation is little more straightforward for defendants who receive a split sentence for Level A1 DWI: under G.S. 148-13(f) and DOC regulations, split sentences are not eligible for good time.)
Once a person is released onto post-release supervision, he or she will have four months of PRS under the supervision of the Division of Community Corrections. There is no such thing as “unsupervised” PRS. An offender who violates a condition of that supervision can be arrested and held for a hearing under the procedure set out in G.S. 15A-1368.6 (a preliminary hearing within 7 days, a final hearing within 45 days, etc.). Under changes made by the Justice Reinvestment Act, the Parole Commission can only fully revoke PRS for sex offenders, offenders who commit a new crime, or offenders who abscond. Offenders who violate in other ways get returned to prison for three months—which, for these DWI offenders who have four months of active time left to serve, will just about max out the sentence. In fact, if DOC awards good time to those offenders who are returned to prison, they will finish their four remaining months of active time in two months, and will thus max out and not be re-released into the community at all. It’s not clear, though, whether DOC will (or even can) do that. G.S. 15A-1368.3(c)(4) allows DOC to award earned time credit to reimprisoned Structured Sentencing offenders, but the new law does not mention any similar authority regarding good time for DWI offenders.
Last Friday, after years of litigation and months of deliberation, the Supreme Court of North Carolina issued its decision in Jones v. Keller. The case resolves the question of what sentence reduction credits, if any, apply to a group of life-sentenced inmates who were sentenced at a time when G.S. 14-2 read that a “sentence of life imprisonment shall be considered as a sentence of imprisonment for a term of 80 years in the State’s prison.” The court concluded that no credits should apply toward the inmates’ outright release date, and that their continued incarceration is thus lawful. (The court also decided a companion case, Brown v. North Carolina Department of Correction, in which it reached the same conclusion for the same reasons.)
I’ll say up front what the dissenting opinion in Jones says on the next-to-last page of a 37-page decision: “This is a hard case.”
You may recall that in State v. Bowden, 193 N.C. App. 597 (2008), discussed here, the court of appeals held that the plain language of G.S. 14-2, as it existed between April 8, 1974 and June 30, 1978, meant that a life sentence must be considered an 80-year sentence for all purposes, including calculation of the inmate’s outright release date. In light of that ruling, Alford Jones—convicted and sentenced to life in prison for a 1975 murder—petitioned in November 2009 for a writ of habeas corpus. His argument: if, under Bowden, his life sentence was actually a determinate 80-year sentence, when you take into account the good time, gain time, and meritorious time he earned under DOC regulations applicable to other determinate sentences, he had completed his sentence and was entitled to unconditional release. The trial court agreed.
A divided supreme court reversed. Citing separation of powers principles, the court said it reviews DOC’s administration of credits against sentences only to ensure that the rules the agency adopts are, first, within the agency’s statutory authority and second, that they are constitutional. The court concluded in Jones that DOC’s policies passed both tests.
As to the statutory authority, the court concluded that G.S. 148-13 gave DOC all the authority it needed to establish rules on rewards for good inmate behavior—including the authority to establish rules that might award credit to certain inmates for some purposes (e.g., parole eligibility) but not for others (e.g., determination of outright release date).
As to the rules’ constitutionality, the court rejected Jones’s due process, equal protection, and ex post facto arguments. I won’t dissect the court’s analysis, but it turned largely on a weighing of Jones’s liberty interest in the credits against the State’s “compelling interest in keeping inmates incarcerated until they can be released with safety to themselves and to the public.” Suffice it to say that the court concluded Jones’s liberty interest was “de minimus.” Justice Newby concurred in the result, elaborating on the equal protection analysis by noting that “life” sentences from this era, even if treated as 80-year sentences under Bowden, are still a separate class of sentences that could justifiably be treated differently by DOC.
Justice Timmons-Goodson, joined by Justice Hudson, dissented. She argued that DOC’s misapprehension of Jones’s sentence between the time it was entered and the time Bowden was decided does not entitle the Department to retroactively establish special rules for administering it. To the contrary, Jones’s life sentence was a determinate sentence the day it was entered, and it should thus be treated under the rules applicable to other determinate sentences. There are, the dissent points out, several exceptions to the credit rules for other categories of inmates—but none for inmates like Jones. And it is improper, Justice Timmons-Goodson concluded, to create one after-the-fact under the guise of “interpretation” of the existing regulations. Under the regulations that exist, therefore, Jones has earned his credit and is entitled to release.
Much more could be said about this case, and perhaps I’ll write more after I’ve had a chance to digest it more fully. In the meantime I welcome your thoughts.
In several prior posts (including this one) I provided a link to the Department of Correction’s administrative regulation on sentence reduction credits. I’ve written about the credits applicable in impaired driving cases, and just last week I wrote about a Supreme Court case on good time credit in the federal prison system. It occurs to me, though, that I’ve never actually written about the basic credit rules for garden-variety Structured Sentencing cases. So I thought I would do that today.
Sentence reduction credits are days of credit DOC can award to inmates as an incentive for good behavior, work, or program participation in prison. Don’t confuse sentence reduction credits with jail credit. Jail credit is time that a judge calculates and awards for time already spent in confinement as a result of the charge that culminated in the defendant’s sentence. G.S. 15-196.1 through -196.4. Sentence reduction credits, by contrast, are awarded by correctional authorities according to rules enacted by the Secretary of Correction under G.S. 148-13. For Structured Sentencing inmates, the secretary’s rules must comply with G.S. 15A-1340.13(d) for felonies and G.S. 15A-1340.20(d) for misdemeanors.” Earned time” is the primary sentence reduction credit available to those sentenced under Structured Sentencing.
For felons, earned time may not reduce the sentence below the minimum term set out on the sentencing grid. DOC rules set out three rates at which earned time may be awarded. Earned Time I is credit of two days per month for inmates who work four to six hours per day in unskilled jobs or low level activity. Earned Time II allows four days of credit per month for four to eight hours of skilled labor or moderate level activity each day. And Earned Time III is a credit of six days per month for at least six hours of skilled or high-level activity each day. It’s no coincidence that the maximum available credit (6 days, or about 20% of every month) roughly matches the differential between the minimum and maximum sentence for a felony (maximum sentences are, generally, 120% of the minimum, plus time for post-release supervision in appropriate cases, as discussed here). That means an inmate with the best possible prison job can work his or her way all the way down from the maximum to the minimum—assuming he or she starts working right away, which I’ll discuss more below. Earned time is subject to forfeiture for disciplinary infractions, but may also be restored if an inmate’s behavior improves. The Department also awards credit to disabled or medically unfit prisoners, granting four days per month to those unable to engage in any available job or program.
For misdemeanants, sentence reduction credit is capped at four days per month. That four day total includes earned time credit and any credit awarded under G.S. 162-60. That law allows the custodian of a jail, in his or her sole discretion, to award a credit to “persons convicted of misdemeanors or felonies” for “work on projects to benefit units of State or local government,” or to convicted misdemeanants who “faithfully participate” in a GED program or any other education, rehabilitation, or training program.
All inmates who are eligible for earned time are also eligible for “meritorious time.” Meritorious time can be awarded for acts of heroism or for things like working overtime, working in inclement weather, and special educational achievements like completing a degree. Meritorious credit is generally capped at 30 days for each act of exemplary conduct or degree earned, but it is also subject to the more general rule that total sentence reduction credits may not reduce a felon’s sentence below the statutory minimum, and may not reduce a misdemeanant’s sentence by more than four days per month for the total number of months of incarceration.
You can imagine that an inmate who arrives in prison with a substantial amount of jail credit under his belt will never be able to work his sentence down to his minimum through earned time alone. Suppose, for example, that an inmate arrives at DOC to serve a 20–24 month sentence after spending 10 months in pretrial confinement. That effectively leaves him with a 10–14 month sentence to serve (under G.S. 15-196.1, jail credit reduces both the maximum and the minimum). Even if he got a great (i.e., Earned Time III, 6-day-per-month) prison job right away, he would never be able to work a full four months off his maximum. His best-case scenario (absent meritorious time) would be release at 11.67 months—that’s the break point where actual time served plus credit equals the maximum.
So inmates with lengthy pretrial stints are disadvantaged when it comes to earned time credit potential. But must they be? Could a defendant ask DOC for earned time credit for work done in the jail during his or her pretrial confinement? Apparently, yes. I know there’s at least one jail that attaches a memo to a convicted defendant’s judgment informing DOC of any work performed in the jail. DOC honors the time, converting it into credit at the appropriate earned time level. This seems like a fair approach—and a win-win-win situation for the defendant, the jail, and DOC. The defendant is obviously happy to get as much credit as possible. The jail is able to offer pretrial and backlogged inmates (who make up the majority of its population) an incentive to work or complete programs. And it would surely free up some prison beds each year if more inmates arrived at DOC with some credit already in the bank. Not every jail will have the resources to offer work or programs for inmates, but those that can might consider working with DOC to see if credit is a possibility.
The Supreme Court issued its opinion in Barber v. Thomas on Monday, upholding the manner in which the Federal Bureau of Prisons (BOP) calculates “good time credits” under 18 U.S.C. § 3624(b). That law says that a prisoner who is serving a term of imprisonment of more than 1 year can receive up to 54 days of credit for good behavior at the end of each year of his or her term, plus prorated credit for the last year of the term. BOP applies that law in a way that grants well-behaved inmates 54 days for each year served, plus whatever credit the inmate has time to earn in the last year of confinement before release. In its opinion, the Court uses “some elementary algebra” to illustrate how a perfectly-behaved inmate with a 10-year sentence can, under the BOP’s approach, earn up to 470 days of good time credit. That’s 54 days for each of the first 8 years (8 x 54 = 432), plus 38 days in Year 9, which is the most the inmate could earn in that ninth year before the actual time served plus good time credit earned equals 10 years, necessitating the inmate’s release. 432 + 38 = 470. No credit is earned in Year 10 because the inmate gets released part-way through Year 9.
The petitioners, a group of federal prisoners, didn’t read the statute that way. Instead, they favored an approach in which an inmate sentenced to a 10-year term of imprisonment could earn up to 540 days of credit—that’s 54 days for every year of the sentence imposed. To hold otherwise, the inmates argued, would require “term of imprisonment” to be read to mean two different things in different parts of the same statute: the sentence imposed in one instance and the time actually served in another.
The Court sided with BOP. Writing for a 6–3 majority, Justice Breyer said that 18 U.S.C. § 3624 sets up a system of “retrospective award” based on an inmate’s actual behavior each year, not a “prospective entitlement” based on the length of sentence imposed. The inmates’ approach would “allow a prisoner to earn credit for both the portion of his sentence that he serves and the portion of his sentence that he offsets with earned good time credit”—and that would be inconsistent with the statute’s language and purpose. The Court was unpersuaded by the inmates’ appeal to legislative history and principles of lenity (the idea that statutory ambiguities should be construed in a criminal defendant’s favor). Although not a model of clarity, the statute does not, the Court said, suffer from an ambiguity sufficiently “grievous” for the rule of lenity to kick in. Indeed, the language and purpose of Section 3624 were even clear enough that there was no need to apply the administrative-law rule of deference to an agency’s interpretation of an ambiguous statute (the so-called Chevron doctrine, ably summed up in the opening sentences of this essay). The Court concluded that BOP is just implementing the statute in accordance with its clear-enough language and purpose. No ambiguity, no Chevron analysis required.
Barber had the potential to be a blockbuster—at least in terms of impact. If the Court had sided with the inmates, many thousands of federal prisoners would have been entitled to up to seven more days of good time credit each year. And seven days per inmate per year adds up when you’re talking about over 210,000 federal inmates. See slip op. at 1 (Kennedy, J., dissenting) (“[I]f the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court’s interpretation comes at a cost to the taxpayers of untold millions of dollars.”)
The case has no direct bearing on North Carolina law. (Our readers who are federal practitioners should, however, note its holding when advising clients of their earliest possible release date. Just divide the number of days in a sentence by 1.148 and you’ll get the minimum number of days the inmate must serve. Slip op. at 18. It works out to a roughly 12.9% sentence reduction.) It’s hard, though, for me to read a case from the Supreme Court of the United States dealing with good time credit and not think of the good time calculation matter pending before our own high court. Remember those 80-year life sentences from the 1970s? It will be interesting to see whether and how principles of lenity and deference to agency interpretation come into play in that case. I’ll let you know when it’s decided.