Twenty-Five Year Reviews of Life Without Parole Sentences Are Underway

Under a law that existed from late 1994 to late 1998, North Carolina defendants sentenced to life without parole for offenses committed during that window are entitled to a judicial review after 25 years of imprisonment. I wrote about it here a few years ago, noting that the window for reviews would open in late 2019. Here we are.

The law in question is G.S. 15A-1380.5. You won’t find it in your current General Statute books because it has been repealed for over two decades. It came into effect for offenses committed on or after October 1, 1994, and it was repealed in 1998, S.L. 1998-212, Section 19.4(q), effective for offenses committed on or after December 1, 1998. There are over 200 inmates serving life without parole sentences that fall within that effective date window. The defendants with the earliest offense dates in the window are now or will soon be eligible for their first review.

The judicial review should be conducted by a resident superior court judge for the county in which the defendant was convicted after he or she has served 25 years of the life sentence. The law made no exceptions for defendants who might have multiple life sentences or other consecutive sentences, and so it appears to me that those inmates would likewise be entitled to review on the first eligible sentence after 25 years.

The potential upshot of the review is not resentencing or other relief granted by the judge (unless, of course, the review reveals some independent basis for postconviction relief). Instead, the judge is instructed to make a recommendation “to the Governor or to any executive agency or board designated by the Governor whether or not the sentence of the defendant should be altered or commuted.” Through this letter, the governor has designated the Post-Release Supervision and Parole Commission (the Parole Commission) as the executive agency to which a judge may make a recommendation as to alteration of a sentence. The letter goes on to clarify that recommendations as to whether the defendant should be made eligible for parole should be made to the Parole Commission, while recommendations as to commutations should be made to the governor.

The law doesn’t say how the review commences. Inmates are not statutorily entitled to notice that their time for review has arrived—unlike parole reviews, see G.S. 15A-1371(b)(3) (requiring 30-day notice to the defendant before a parole review of a sentence to life imprisonment), or inmates eligible for review under Florida’s similar law, Fla. Stat. § 921.1402(d)(3) (Department of Corrections must give 18-month notice to juvenile offenders entitled to judicial review of sentence). But it looks like the General Assembly intended for the review to be mandatory. Though the defendant’s first shot at review is described in the law as an entitlement (and is thus arguably not self-effectuating), the title of the bill enacting the law described it as “[a]n act to provide . . . that, after a defendant has served twenty-five years of imprisonment and every two years thereafter, the defendant’s sentence of life imprisonment without parole shall be reviewed by a resident superior court judge . . . .” S.L. 1994-21 (extra session).

As for the substance of the review itself, the only absolute statutory requirement is that the judge shall consider the trial record. Beyond that, the court may review:

• The defendant’s record from the corrections department,
• The position of any members of the victim’s immediate family,
• The defendant’s health condition,
• The degree of risk to society posed by the defendant, and
• Any other information that the judge, in his or her discretion, deems appropriate.

There is no statutory right to counsel, and no clear right to an in-person hearing (although some judges may find that to be the best way to consider the type of information they deem appropriate for review).

The statute says the judge should recommend “whether or not” the defendant’s sentence should be altered or commuted. I understand that to mean that the judge must transmit some recommendation to the Parole Commission or governor one way or the other after the review is completed. The decision of what to recommend is in the court’s discretion. The Parole Commission or the governor must then consider the recommendation made by the judge and decide what, if anything, to do. The case “shall be reviewed again every two years unless the sentence is altered or commuted before that time.”

The judge’s ultimate recommendation is appealable, but it may be reviewed only for an abuse of discretion. We don’t yet have any appellate case law examining an actual review, but the courts have assumed in other contexts that G.S. 15A-1380.5 reviews could be relatively cursory. See State v. Young, 369 N.C. 118 (2016) (concluding that G.S. 15A-1380.5 “guarantees no hearing, no notice, and no procedural rights,” and that the law therefore was not a “meaningful review” within the meaning of Miller v. Alabama). That would be consistent with the general rule for the courts’ role in clemency proceedings, see Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) (O’Connor, J., concurring) (“Thus, although it is true that pardon and commutation decisions have not traditionally been the business of courts . . . I believe that the Court of Appeals correctly concluded that some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”), although more process might be due where, as here, the legislature has expressly assigned the courts a role in the process.