Prisons and Prisoners; Indeterminate sentences; parole eligibility

Subject:

Prisons and Prisoners; Indeterminate sentences; parole eligibility.

Requested By:

Mr. David Blackwell Senior Administrative Assistant North Carolina Department of Correction

Question:

Is the initial parole eligibility date of a prisoner who committed an offense prior to July 1, 1978, and was sentenced after July 1, 1978, to a sentence having a minimum and maximum term to be determined by the provisions of G.S. 148-58 as it existed prior to July 1, 1978, or by the provisions of G.S. 15A-1371(a) which became effective on July 1, 1978?

Conclusion:

The initial parole eligibility date of an inmate who committed an offense prior to July 1, 1978, and was sentenced after July 1, 1978 to a sentence having a minimum and maximum term, is to be determined by the provisions of G.S. 148-58 as it existed prior to July 1, 1978.

Section 39 of Chapter 711 of the Session Laws of 1977, the Criminal Procedure Act codified as Chapter 15A of the General Statutes of North Carolina, provides that the effective date of Chapter 15A shall by July 1, 1978, "except that the provisions of Article 85 "Parole" shall not apply to persons sentenced before July 1, 1978." However, in light of the recent United States Supreme Court decision in Weaver v. Graham, U.S. (49 L.W. 4155, February 25, 1981), it appears that the exception contained in § 39 may be unconstitutional as applied to an inmate sentenced to a minimum and maximum term for a crime committed prior to July 1, 1978.

In Weaver v. Graham, supra, Petitioner, an inmate at a Florida penitentiary, sought a writ of habeas corpus from the Supreme Court of Florida on the grounds that a new state statute reducing monthly gain time (a formula that grants deductions from a prisoner’s sentence for good behavior) was an ex post facto law. The Supreme Court of Florida denied the petition on the ground that "gain time allowance is an act of grace rather than a vested right may be withdrawn, modified or denied." The United States Supreme Court granted certiorari and unanimously reversed the Florida court’s decision.

The Supreme Court ruled that two critical elements must be present for a criminal or a penal law to be ex post facto law. It must be retrospective, i.e., it must apply to events occurring before its enactment and it must disadvantage the offender affected by it. The Supreme Court ruled that a law need not impair a "vested right" to violate the ex post facto prohibition.

Florida maintained that the statute altering gained time was not retrospective on its face because it applied only after its effective date. The United States Supreme Court reasoned that the Florida statute applied to prisoners convicted for acts committed before the provision’s effective date, "thus, the provisions attached legal consequences to a crime committed before the act took effect."

G.S.

148-58 provided that "All prisoners shall be eligible to have their cases considered for parole when they have served a fourth of their sentence, if the sentence is determinative, and a fourth of their minimum sentence, if their sentence is indeterminate." (Emphasis added.) This was changed effective July 1, 1978 to provide in G.S. 15A-1371(a) that "a prisoner whose sentence includes a minimum term of imprisonment imposed under this Subchapter is eligible for release only upon completion of that minimum term of one-fifth of the maximum penalty allowed by law for the offense for which the prisoner is sentenced, whichever is less. . . ." (Emphasis added.) and pursuant to § 39 of Chapter 711, the provisions "of Article 85 "Parole" shall not apply to persons sentenced before July 1, 1978." Thus, in the case of an inmate sentenced to a minimum and maximum term after July 1, 1978, for a crime committed before July 1, 1978, the application of G.S. 15A-1371(a) would have the possible effect of extending the inmate’s initial parole eligibility date and may possibly substantially alter the consequences attached to a crime already completed, and change ""the quantum of punishment"." Therefore,

G.S.

15A-1371(a) is a retrospective law which can be constitutionally applied only if it is not to the detriment of the inmate.

In accordance with the foregoing, it will be necessary to determine the class of inmates effected, i.e., those inmates sentenced after July 1, 1978, to minimum and maximum terms for crimes committed prior to July 1, 1978 where the initial parole consideration date has been extended because of the application of G.S. 15A-1371(a). Once the group has been determined, their parole eligibility should be computed under both formula and they should be given the benefit of the earliest initial parole eligibility date.

It is worthwhile noting that since a Committed Youthful Offender has immediate parole eligibility, see G.S. 148-49.15 (a), and that since an inmate sentenced to a "flat" sentence under

G.S.

15A-1371(a) also has immediate eligibility for parole consideration, the decision in Weaver

v.

Graham, supra, has no applicability to inmates sentenced either as a Committed Youthful Offenders or to a "flat" sentence.

Finally, in some instances the inmate may have already been considered and denied parole under

G.S. 15A-1371(a). In this situation, since the inmate has already had the parole consideration to which he is entitled, the matter is moot and does not require additional reconsideration by the Parole Consideration.

Rufus L. Edmisten Attorney General

Jacob Safron Special Deputy Attorney General