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
Tag Archives: sentence reduction credits
The Supreme Court of North Carolina decided Lovette v. Department of Correction last Friday. The case has nothing to do with Laurence Lovette—the man found guilty of killing UNC student body president Eve Carson—whose case was also recently before our appellate courts (discussed here). Rather, it concerned Clyde Vernon Lovette and fellow petitioner Charles Lynch, two inmates serving life sentences for crimes committed in the mid-1970s. They committed their crimes during a four-year time period when a life sentence was defined in North Carolina as a term of 80 years. The supreme court decided last week that the men were not entitled to any reduction credits against their 80-year sentences, despite being convicted of crimes other than first-degree murder.
To understand Lovette fully requires a look back at earlier chapters in the “80-year life” saga. Here is a review:
Bowden. In State v. Bowden, 193 N.C. App. 597 (2008), the court of appeals held that under a former version of G.S. 14-2, a life sentence entered for an offense committed between April 8, 1974 and July 1, 1978, is an 80-year sentences for all purposes, including the determination of the inmate’s outright release date. As it was written at that time, G.S. 14-2 included a provision saying 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 Supreme Court of North Carolina initially agreed to review Bowden, but then decided that discretionary review had been improvidently allowed. 363 N.C. 621 (2009). Bowden is summarized here.
Jones. In Jones v. Keller, 364 N.C. 249 (2010), the supreme court considered what sentence reduction credits, if any, can be earned by inmates in the Bowden class. The petitioner in that case, Alford Jones, was serving a life sentence for a first-degree murder committed in 1975. He argued that if he received all the credits generally applicable to an inmate serving a term-of-years sentence, his 80-year life sentence would be complete: “good time” would roughly cut the sentence in half, and “gain time” and “meritorious time” would further reduce it by another 10 years or so.
A divided supreme court disagreed with him, holding that reduction credits were an administrative matter within the discretion of the Department of Correction, and that DOC’s decision to deny credit was not unconstitutional in light of the state’s compelling interest in public safety. The three-justice majority was careful to limit its decision to the first-degree murderers within the Bowden class, Jones, 364 N.C. at 252, and sent signals that the same rule might not apply to inmates sentenced to life imprisonment for other crimes, id. at 257 (“This State interest in ensuring public safety is particularly pronounced when dealing with those convicted of first-degree murder.”). Justice Newby, joined by former Justice Brady, concurred in the result, indicating that he would have extended the rule denying credit to any life sentence, regardless of the underlying offense. Former Justice Timmons-Goodson dissented, joined by Justice Hudson. The Supreme Court of the United States denied certiorari in Jones. 131 S. Ct. 2150 (2011). Jones is summarized here.
Waddell. An inmate similarly situated to Jones—a man named Larry Waddell who was sentenced to life imprisonment for a first-degree murder committed in July of 1974—lost his petition for federal habeas corpus relief in the Western District of North Carolina. The Fourth Circuit affirmed the denial of the petition on appeal. Waddell v. Department of Correction, 680 F.3d 384 (4th Cir. 2012). The Supreme Court denied certiorari, 133 S. Ct. 451 (2011)—some 36 years after vacating the death sentence he originally received in 1975. Waddell v. North Carolina, 428 U.S. 904 (1976). Waddell is summarized here.
Lovette. That brings us to last week’s case. Like Bowden, Jones, and Waddell, Clyde Lovette and Charles Lynch were sentenced to life imprisonment for crimes committed between 1974 and 1978. Unlike those inmates, Lovette and Lynch were convicted of crimes other than first-degree murder—second-degree murder for Lovette and second-degree burglary for Lynch. Based on that distinction, the men petitioned for a writ of habeas corpus, arguing that they were not subject to the rule from Jones, and that they were thus entitled to good time, gain time, and meritorious time credits that made them eligible for immediate release.
The trial judge agreed, finding that the majority opinion in Jones was expressly limited to first-degree murderers, and that the petitioners were “part of a distinguishable subset of the Bowden class.” The writ was allowed and the men were ordered to be discharged.
The Department of Correction petitioned for a writ of certiorari to the court of appeals, where a divided panel affirmed the trial judge’s order granting the inmates’ release. Lovette v. Dep’t of Correction, __ N.C. App. __, 731 S.E.2d 206 (2012). The majority noted that in Jones, the “Supreme Court went to great lengths to distinguish the Jones defendants—those who committed first-degree murder and were sentenced to life imprisonment for first-degree murder—from other defendants serving life terms . . . .” Id. at 209.
Judge Ervin wrote a lengthy dissent, concluding that even if the court of appeals wasn’t bound by the Jones holding in Lovette’s case, it was still bound by the analytical framework set out in Jones. To evaluate an inmate’s constitutional challenge to DOC’s denial of credit, the supreme court instructed lower courts to “weigh [the inmate’s] liberty interest, if any, in having his earned time credits used to calculate his unconditional release date against the State’s interest in keeping inmates incarcerated until they [could] be released with safety to themselves and to the public.” Id. at 213 (Ervin, J., dissenting) (internal quotations omitted). If the prisoner’s interest in the credits was, as the supreme court said in Jones, “de minimis,” then even crimes less serious than first-degree murder can tip the balance to a denial of credit. Second-degree murder and second-degree burglary are serious enough, the dissent concluded, to raise the same public safety concerns at issue in Jones. And so the credits should be denied.
The Department of Correction petitioned the state supreme court for a writ of supersedeas and a temporary stay, which were allowed. The case was argued on February 14, 2013, and—as I mentioned 1,100 words ago—decided last week. In a short per curiam opinion, the court adopted Judge Ervin’s dissent and ruled against the inmates. “For the reasons stated in the dissenting opinion, we reverse the decision of the Court of Appeals and remand this matter to that court for remand to the trial court for further proceedings not inconsistent with this opinion.”
Given the divided court in Jones, I frankly did not expect the unanimous, per curiam decision that emerged from the supreme court in Lovette, which struck me as a closer case. But I suppose the makeup of the court has changed since then, with the author of the Jones dissent no longer on the court. Going forward, it seems that any life-sentenced offense from the 80-year-life era is probably serious enough to support a denial of sentence reduction credits. But after all the twists and turns of five plus years of litigation, I’m not making any predictions.
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.
When an inmate is convicted of multiple crimes and given consecutive active sentences, does the order in which the judge stacks them matter? A number of people have told me they spend considerable time thinking about the way consecutive sentences are ordered, based on a concern that the order affects the way the Department of Correction will calculate sentence reduction credits (for example, that DOC would only apply credit to the last sentence in a string).
Under G.S. 15A-1354(b), when a defendant is sentenced to consecutive terms of imprisonment, DOC must “treat the defendant as though he has been committed for a single term.” The minimum of that single term is simply the sum of all the minimum terms of the consecutive sentences. The corresponding maximum is the sum of all the maximum terms, less nine months for each of the second and subsequent sentences imposed for Class B1 through Class E felonies. That subtraction avoids overextending the maximum based on duplicative post-release supervision periods, which are built into the table of maximum sentences set out in G.S. 15A-1340.17(e)—an inmate serves only one period of post-release supervision, even if convicted of multiple serious felonies.
So, for example, if a person receives two Class F felony convictions of 13–16 months and they are run consecutively, DOC will total the minimums (13 + 13 = 26), total the maximums (16 + 16 = 32), and treat the defendant as though he or she received a single 26–32 month sentence. Depending on his or her disciplinary record, job, and program activity in prison, the defendant will have the opportunity to reduce the sentence from 32 months down to the 26-month minimum through Earned Time and Meritorious Time, described in DOC’s sentence reduction credit policy.
To provide a slightly more complicated example, suppose a person is convicted of multiple felonies and sentenced as follows: two Class C felonies (58–79 months each), a Class D felony (51–71 months), and a Class H felony (5–6 months)—all set to run consecutively. DOC will total the minimums (58 + 58 + 51 + 5 = 172), total the maximums (79 + 79 + 71 + 6 = 235), subtract 9 months each for the second and third Class B1–E felonies (235 – 9 – 9 = 217), and treat the defendant as though he or she has a single 172–217 month sentence. Again, the inmate will have the opportunity to work the sentence down from the maximum to the minimum through Earned and Meritorious time. And this defendant will be released nine months before reaching his or her maximum sentence (less any Earned Time) to serve a single 9-month period of post-release (unless any of the crimes require sex offender registration, in which case the post-release supervision period would be 5 years under G.S. 15A-1368.2(c)).
In both examples, because DOC will treat the aggregate sentence under the single-sentence rule (or, as one person at DOC Combined Records described it to me, a “one sentence theory”), the order in which the judgments are stacked doesn’t matter. The inmate will have a chance to earn credit up to the difference between the aggregate maximum and the aggregate minimum, not just the difference between the maximum and minimum of the last boxcar in the train.