Law allows for early release

Correction chief can give inmates credit, cut terms

Staff WriterOctober 27, 2009 

  • What the law says

    With respect to prisoners who are serving prison or jail terms for offenses not subject to Article 81A of Chapter 15A [crimes committed after July 1, 1981] and prisoners serving a life term for a Class C felony, the Secretary of Correction may, in his discretion, issue regulations regarding deductions of time from the terms of such prisoners for good behavior, meritorious conduct, work or study, participation in rehabilitation programs, and the like.

    North Carolina General Statutes 148-13(b), revised 1981 as legislators revised the state's sentencing laws

  • State leaders have forbidden the release of 27 inmates whose sentences have been affected by recent court rulings.

    They are awaiting more guidance from the courts, namely a ruling in the case of Bobby E. Bowden, a convicted murderer whose appeal ignited the current debate.

    Bowden's case must now be heard in Cumberland County, where a judge will determine how much credit he is due for good behavior, work release and educational programs. The hearing date has not been set.

State leaders say the secretary of correction overstepped his authority when he shortened the sentences of inmates convicted before 1981. But the secretary found that authority on page 378 of the 1981 North Carolina General Statutes.

Now, a chance at freedom for 27 inmates is tangled in what state leaders think their predecessors meant to do and what state law actually says.

In 1981, in the midst of overhauling the state's sentencing laws, legislators said the secretary of correction should control the rules to award credits given to inmates imprisoned before that year. From 1974 to 1978, state law defined a life sentence as 80 years.

That limit, combined with the credits, means that at least 27, and possibly as many as 60, murderers, rapists, burglars and arsonists could be eligible for freedom.

Inmates can earn credits -- time off their sentences-- by going a day without an infraction, participating in a work-release program and taking classes.

Some lawyers and legal experts are urging state leaders to honor the law even if they don't agree with it. That would mean immediately releasing the inmates in question.

"We respectfully call on our state leaders to respect the North Carolina and United States Constitution by following the jury instruction that our judges give to our jurors every day: apply the law as it is, not as you would like it to be," the Board of Governors for the North Carolina Advocates for Justice said in a resolution approved at a weekend meeting. The advocates are an association of trial lawyers.

Recent rulings by the state's highest courts have put these inmates in line for immediate release. The courts have held that legislators limited life sentences during those years to 80 years. Lawyers for the inmates argue that credits for good behavior could cut their prison terms to less than 40 years.

For now, though, state leaders are refusing to turn the inmates loose.

Did DOC go too far?

Last week, Gov. Beverly Perdue indicated that she would wait for more guidance from the state's courts, saying that the Department of Correction had overstepped its authority when handing out these credits.

On Monday, a spokeswoman for the governor referred questions about how the Department of Correction might have stepped beyond its authority to the state attorney general. A spokeswoman for the attorney general declined to comment.

Everything hinges on one inmate's crusade for freedom. Bobby E. Bowden, a Cumberland County man serving life for murdering two people at a store in 1975, must soon return to court in his home county and appeal to a judge. He will say that he has earned enough good behavior credits to reduce his life sentence to time he has already served.

The hearing date has not yet been set.

Lawyers for the state will have a tough case to make. Regardless of lawmakers' intentions, copies of the general statutes from 1981 are clear. The secretary of the Department of Correction was given authority to establish rules on how those sentenced before 1981 could earn credits reducing their sentences. Legislators revised sentencing laws in 1981, offering new guidelines for how certain crimes should be punished.

In those 1981 revisions, legislators forbade the most violent offenders sentenced after that year from receiving time off for good behavior. But for such offenders already in prison, the law gives the secretary of correction permission to award credits.

A 1983 department policy said that an inmate such as Bowden could earn a day off his sentence for each day spent without incident. Participating in work release and taking classes would shave off even more time. Bowden argues that, with credits, his life sentence shrank from 80 years to about 34.

Widely known process

Longtime criminal defense lawyers say the prison system's process for awarding credits for good behavior has been well-known and transparent for decades.

"That statute is very clear," said Joseph B. Cheshire V, a Raleigh lawyer who has practiced criminal law since 1973. "Every lawyer, defense and prosecutor, as well as judges, knew these were the rules."

So did inmates.

For those eligible to earn credits, many periodically check in with prison administrators to make sure their credits are being tabulated correctly, said Ken Butler, a staff lawyer with N.C. Prisoner Legal Services. Inmates learn the formula to earn credits when they enter prison.

"Many stay on top of that, and they appeal the record when they need to," Butler said.

Bowden took his credits to court, arguing in 2005 in a hand-written motion that he was due his freedom. Now, he'll be back in the same courthouse.

Cheshire said that Bowden's case represents a chance to stop state officials attempting to ignore the rules.

"This is a pure and simple attack on the rule of law," Cheshire said. "We are not a society that allows our government to retroactively undo agreements it has with its citizens."

mandy.locke@newsobserver.com or 919-829-8927

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