Prisoners Subject to Parole During Emergency Release Periods

4.1 as follows:

(g1) Nothwithstanding any other provision of law, whenever the Parole Commission is required to release inmates in order to meet the requirements of this section, the Parole Commission may parole nonviolent inmates who would not otherwise be eligible for parole instead of paroling violent inmates who are eligible for parole. (Emphasis added.) The above-referenced provision expires and will be replaced with a new provision, effective 1 January 1995 which reads as follows: (g1) Nothwithstanding any other provision of law except for subsection (h) of this section, whenever the Post-Release Supervision and Parole Commission is required to release inmates in order to meet the requirements of this section, the Post Release Supervision and Parole Commission may parole nonviolent inmates who would not otherwise be eligible for parole instead of paroling violent inmates who are eligible for parole. This subsection does not apply to sentences under Article 81B of Chapter 15A of the General Statutes. (Emphasis added.) Subsection (h) exempts from the emergency parole provisions prisoners sentenced under Article 81B of Chapter 15A (Structured Sentencing).

The use of the phrase, "notwithstanding any other provision of law" clearly indicates that the General Assembly intended to make all nonviolent prisoners, regardless of what provision they may have been sentenced under, eligible for parole during emergency release periods. "Notwithstanding any other provision of law" is as plain a statement of intent as one can make. Such language must be accepted at face value and there is no further room for construction (unless application of the plain language would be contrary to higher authority, e.g. the State or federal constitution or act of Congress). See State v. Williams, 74 N.C. App. 728, 729, 329 S.E. 2d 709 (1985), construing similar language in N.C.G.S. § 14-87(d).

The question is then: who are nonviolent prisoners? "Nonviolent" is an adjective describing the prisoners themselves and not the crimes for which they are incarcerated. The statute, however, gives the Parole Commission broad discretion in determining whether the prisoner is "nonviolent" and the Commission may exercise great caution in deciding to parole a prisoner under this provision. We believe the Commission may take into account the crime for which the prisoner was committed, prison behavioral record, and criminal history not related to the crime. The legislature’s primary concern was for the safety of the general public. Thus, the Commission may consider any pertinent information that would be useful in deciding whether the prisoner is in fact nonviolent.

Useful guidance for the Parole Commission is our Supreme Court’s discussion of whether a prior felony not involving force or violence may be considered by a jury as an aggravating factor in a capital case. State v. McDougall, 308 N.C. 1, 18, 301 S.E.2d 308, cert. denied 464 U.S. 865 (1983).

…The statute does not state that the jury may only consider as an aggravating circumstance those felonies in which the use or threat of violence to the person is an element of the offense. The statute contains the word "involving," which indicates an interpretation much more expansive than one restricting the jury to consider only felonies having the use or threat of violence to the person as an element. Crimes that do not have violence as an element may be committed by the use or threat of violence. By using "involving" instead of language delimiting consideration to the narrow class of felonies in which violence is an element of the offense, we find the legislature intended the prior felony…to include any felony whose commission involved the use or threat of violence to the person.

The Parole Commission has similar but broader discretion in deciding whether the prisoner is nonviolent. The Commission may consider not only the crime or crimes for which the prisoner has been convicted but also any information it has available in making its decision. It should be pointed out that the statute gives no prisoner a right to parole or to be considered for parole. The statute merely expands the Commission’s authority in granting paroles during emergency release periods to consider a new class of prisoners–all nonviolent prisoners not sentenced under Structured Sentencing.