Parole; Fair Sentencing Act

Subject:

Parole; Fair Sentencing Act

Requested By:

Luther M. Mitchell, Sr. Administrator North Carolina Parole Commission

Questions:

(1)

May prisoners eligible for "1/3 parole" under G. S. 15A-1371(g) be granted unsupervised parole by the Parole Commission?

(2)

Are inmates convicted of felonies committed on or after July 1, 1981 and sentenced to a term of less than 18 months eligible for "1/3 parole" under G.S. 15A-1371(g)?

Conclusions:

(1)

Yes.

(2)

No.

(1)

G.S. 15A-1371(g) provides that, for a person granted a "1/3 parole" under said subsection, "the conditions of parole, unless otherwise specified by the Parole Commission, are those authorized in G.S. 15A-1374(b)(4) through (10)." G.S. 15A0-1374(b), Appropriate Conditions, provides that the Parole Commission "may require" that the parolee comply with one or more conditions. Among these conditions is (b)(6):

Report to a parole officer at reasonable times and in a reasonable manner, as directed by the Commission or the parole officer.

While this supervision requirement is one of the parole conditions which is presumptively to apply, the Parole Commission has been given the discretion to act so as to specify conditions of parole different than those set out in G.S. 15A-1734(b)(4)-(10). In so doing, the Commission’s authority is not limited so as to prevent eliminating the condition of parole, (b)(6), which requires the parolee to report to a parole officer.

(2) G.S. 15A-1371(g), which authorizes the "1/3 parole" program is contained in Article 85 of Chapter 15A of the General Statutes. By its terms, Article 85 applies only to: ". . . all sentenced prisoners who are not subject to Article 85A of this Chapter." G.S. 15A-1370.1.

Article 85A of Chapter 15A, enacted as part of the Fair Sentencing Act in 1979, applies to all felony prisoners sentenced for crimes occurring on or after the effective date of said Article (i.e. July 1, 1981) and restricts parole eligibility for felons to that authorized by Article 85A with the exception of Class A and B felons (either life or death sentences) and Class C felons who received life sentences. Parole eligibility for such prisoners must be determined pursuant to Article 85. In addition, Committed Youthful Offenders are not subject to Article 85A. N.C.G.S. 15A-1380.1.

From the foregoing, it appears that the prisoners described in the question under discussion -those with sentences of less than 18 months whose sentences were received for crimes committed on or after July 1, 1981 — are subject to Article 85A of the General Statutes pursuant to N.C.G.S. 15A-1380.1. They are, therefore, excluded from coverage by Article 85 and cannot be considered for the "1/3 parole" program authorized in G.S. 15A-1371(g).

RUFUS L. EDMISTEN ATTORNEY GENERAL

David E. Broome, Jr. Associate Attorney General