May 23, 1984
Subject:
Re-entry Parole; Fair Sentencing; Acceleration of Parole.
Requested By: Ben G. Irons, II Senior Administrative Assistant North Carolina Department of Correction
Question:
Does the Parole Commission have the authority to select fair sentence inmates to be parole pursuant to G.S. § 148-4.1(c)?
Conclusion:
Yes.
The 1983 Session of the General Assembly passed Chapter 557, An Act to Accelerate the Parole of Certain Inmates When Necessary for Effective Prison Management, which became effective July 1, 1983. The preamble to Chapter 557, in reviewing the current and proposed inmate populations, notes that "no specific legislative authority exists for early release of inmates when necessary for the effective management and administration of the State’s prison system . . ." and provides such authority in Chapter 557. G.S. § 148-4.1, Release of Inmates, specifically provides that:
(a) Whenever the Secretary of Correction determines from data compiled by the Department of Correction that it is necessary to reduce the prison population to a more manageable level, he shall direct the Parole Commission to release on parole, over a reasonable period of time a number of prisoners sufficient to that purpose.
* * *
(c) Persons eligible for parole under Article 85A of Chapter 15A shall be eligible for early parole under this section six months prior to the discharge date otherwise applicable, and three months prior to the date of automatic 90 day parole authorized by G.S. 15A-1380.2.
Except for Committed Youthful Offenders and Class A, B and C felons sentenced to life imprisonment, parole, in the usual sense, was eliminated by the Fair Sentencing Act. The only provision of general application to all fair sentence inmates analogous to parole is contained in
G.S. § 15A-1380.2, Re-Entry Parole of Felons, which provides in subsection (a) that:
The Parole Commission shall parole each prisoner serving a prison or jail terms of 18 months or more for a felony 90 days before the expiration of his term, less credit for time already served as provided by Article 19A of Chapter 15 of the General Statutes, credit for good behavior as required by G.S. 15A-1340.7, and additional gain time credit that he may receive pursuant to the regulations of the Secretary of Correction issued under G.S. 148-13.
A comparison of these various provisions reveal that the import of G.S. § 148-4.1(c) is to authorize an additional three months in addition to the automatic 90 day re-entry parole. However, although G.S. § 15A-1380.2(a) vests a right to 90 days re-entry parole, no such right is vested by G.S. § 148-4.1(c) and the Parole Commission has been delegated unrestricted discretion in choosing those inmates whom it would favor with early parole in order to reduce the prison population by that number of inmates determined by the Secretary of Correction required to reduce the prison population to a more manageable level.
Pursuant to G.S. 148-4.1(a), the Secretary of Correction is only authorized to direct the Parole Commission to release "a number of prisoners." This would indicate that the Commission is not authorized to release more than the number specified by the Secretary. If G.S. § 148-4.1(c) were read to require automatic early parole of all fair sentence inmates who are within the eligibility pool (i.e., those within three months of the automatic ninety day re-entry parole), then the Parole Commission would be unable to limit the number of parolees to the number of prisoners specified by the Secretary.
In view of the foregoing, it is the opinion of this office that no rights are vested in the eligible inmate population when the Secretary of Correction calls for the implementation of the authority granted to him by G.S. § 148-4.1 and that the Parole Commission, in carrying out its responsibility to implement the Secretary’s directive, has unfettered discretion in its choice of otherwise eligible inmates to be included in the pool of inmates being released in order to reduce the prison population.
RUFUS L. EDMISTEN ATTORNEY GENERAL
Jacob L. Safron Special Deputy Attorney General