Sentencing policy at center of convicts' release
Posted October 23, 2009
Updated November 19, 2009
RALEIGH, N.C. — Did the Department of Correction have the authority to make a policy more than 20 years ago granting certain inmates sentenced to life in prison time served for good behavior?
It's the question at the center of a legal quandary involving the state, 20 convicted criminals and a state Court of Appeals ruling that would have meant their unexpected release next Thursday.
On Thursday, Gov. Beverly Perdue refused to allow the inmates' release, saying legal issues involving the credits for good behavior must be resolved first.
Several factors are responsible for the issue at hand.
For a few years, starting in 1974, the state defined life in prison as 80 years.
In 1981, the Legislature passed the Fair Sentencing Act, which offered inmates the chance to shorten their sentences by crediting them with a day for each day of good behavior. It only applied to crimes committed in 1981 or later. Those serving life sentences did not qualify.
Then, in 1983, then-DOC Secretary James Woodward expanded the "day-for-a-day" rule to apply to those convicted before 1981, including those serving life terms.
That decision is where the issue lies.
"I think it was the way it was interpreted by the agency at the time," DOC spokesman Keith Acree said. "I think the question is: Did the department have the authority to do what it did? That's a question the lawyers are going to have to figure out."
Perdue said in a statement Thursday that her legal counsel believes the DOC never had the authority to change the rule.
Jamie Markham, an assistant professor at the University of North Carolina at Chapel Hill School of Law has studied the statutes and the case. He disagrees.
"It looks like the secretary did have the authority to set those rules," he said.
Woodward has since died, and it's unclear why he made the change. Then-Gov. Jim Hunt, a proponent of the Fair Sentencing Act, now says the rule has been misinterpreted.
Hunt says he was not aware that Woodward adopted the regulation but having now reviewed the policy, it was to be used to calculate parole eligibility for those serving life sentences, not their unconditional release.
"No one intended for that to be done, and we ought to find any legal way to prevent that from happening," Hunt said Friday.
Markham says anything is possible but based on the previous court rulings, some say Perdue might be delaying the inevitable.
"For what's already been in place all these years, they wouldn't be able to go back in time and change (the intent)," he said. "So, in that sense, what's done is done."
Also unclear is when the issue will be resolved.
A spokeswoman for the governor said Thursday that the DOC is verifying that the credits were "lawfully and correctly applied" and that officials are "exploring every angle."
For now, the inmates will stay in prison, and there's no deadline for their release.
Attorney General Roy Cooper said his office advised the Correction Department "that no prisoners have to be released until further direction from the courts."
The potential releases appalled victims and their advocates, partially because most of the inmates would be freed without any post-release supervision. Only one would have official supervision, although those convicted of rape would have to register as sex offenders.
Correction Department records show the 20 have racked up more than 250 infractions in prison for offenses such as fighting, weapon possession and theft. Each of the 20 inmates has at least two infractions, and combined they have 256.
Carolyn Ashburn of Wadeville, whose father was killed in 1975 by one of the prisoners scheduled for release, said the governor was doing the right thing.
Pam Hurley, whose mother was killed by another, said she thinks the reprieve may be just temporary.
"We are happy, but we are continuing to send letters and e-mails to get our message out. This should have never happened in the first place," she told The Associated Press.
"Now that this has been breached, you'd be crazy to relax and think, 'Oh, well now it's all over.' It's not over. We know it's not over."