Twenty-Five Year Review of Sentences to Life Without Parole

I have started to get questions about G.S. 15A-1380.5, a repealed statute that used to provide for judicial review of sentences to life without parole after 25 years of imprisonment. It’s too early for a court to be applying the law just yet—the first reviews shouldn’t happen until 2019—but we’re getting close, and people are talking about it. Today’s post describes the law.

Since 1994, sentences to life without parole in North Carolina are true “natural life” sentences. The sentence is fully served only upon the defendant’s death, and there is no possibility of parole. That was not the case under earlier law, where life sentences were eligible for parole after 10 or 20 years, depending on the crime for which they were imposed. With no outright release date and no parole, a defendant’s only chance of being released from a life sentence is via executive clemency.

For brief time, North Carolina law provided for a judicial review of life sentences designed to steer appropriate cases toward clemency. G.S. 15A-1380.5, enacted contemporaneously with Structured Sentencing and effective for offenses committed on or after October 1, 1994, entitled a life-sentenced inmate to a judicial review of his or her sentence after 25 years of imprisonment. A resident superior court judge for the county in which the defendant was convicted performs the review.

At a minimum, the judge conducting the review must consider the trial record. The judge may also review the defendant’s prison records, the position of any members of the victim’s immediate family, the defendant’s health, the degree of risk he or she poses to society, and any other information the judge deems appropriate. The statute does not expressly require any sort of hearing on the matter. The defendant is not, for example, granted a right to appear before the court. There is no statutory right to counsel.

The judge conducting the review has no authority to change or terminate the defendant’s life sentence. Rather, the upshot of the review is a recommendation to the Executive Branch on whether or not the sentence should be altered or commuted. The decision of what to recommend is in the judge’s discretion, and may be reviewed by an appellate court only for an abuse of that discretion.

The Governor or other executive agency or board that receives the recommendation shall consider it, but is not bound by it. Final authority with respect to pardons and commutation is vested in the Governor by Article III, Section 5 of the North Carolina Constitution. If the sentence is not altered or commuted, the defendant is entitled to another review every two years.

The review provision was on the books for four years before it was repealed in 1998. S.L. 1998-212, Section 19.4(q). The repeal was effective December 1, 1998, and applicable to offenses committed on or after that date. Thus, for offenses committed between October 1, 1994, and December 1, 1998, the review is still required. I don’t know of any basis for applying Earned Time or any other sentence reduction credit to the 25-year imprisonment threshold, so reviews shouldn’t commence until 2019 at the earliest. I’m not aware of any reviews being conducted yet, but please let me know if I’m wrong about that.

A few technical questions related to the review provision come to mind. First, it is not clear to me how reviews will be initiated. Must an inmate ask for the review, or will the prison system notify affected inmates when their entitlement vests? Portions of the statute are written in mandatory terms (“The defendant’s sentence shall be reviewed again every two years . . . .”), but the law does not identify how the procedure will commence as a logistical matter.

Second, if a person is serving consecutive life sentences, it seems to me that a court probably ought nonetheless to conduct a review hearing on the first sentence after 25 years. I don’t see a basis for aggregating the review periods like we do for parole eligibility for consecutive sentences, such that a person serving two life sentences wouldn’t receive a review until he or she served 50 years.

Finally, it appears that the review procedure does not apply to sentences to life with parole under North Carolina’s Miller v. Alabama fix law, G.S. 15A-1340.19A, et seq. Those inmates are eligible for parole after 25 years, but not entitled to a review hearing under G.S. 15A-1380.5. They could of course petition for executive clemency on their own.