Nine men convicted of drug trafficking and other charges will leave prison weeks, months and years early after the Durham County district attorney and a judge agreed to reduce their sentences because of coronavirus concerns.

“They will be released from DPS (Department of Public Safety) custody as soon as the appropriate paperwork is processed,” said Ben Finholt, director of the Just Sentencing Project at N.C. Prisoner Legal Services, which represented the nine men.

And more may be coming as District Attorney Satana Deberry said she she is open to reviewing similar motions.

“We feel like we all have a duty to try to reduce the likelihood of the spread of this disease, especially amongst the most vulnerable people in our population,” she said. “That includes the people who work and live in state prison.”

In appropriate cases, Deberry said, she will consent to sentencing modifications, which still have to be signed off on by a judge, as Durham County Superior Court Judge Orlando Hudson did Wednesday.

The move comes as public health experts, criminal justice advocates and families of inmates are asking officials to reduce the prison population by releasing those vulnerable to COVID-19, the disease caused by the coronavirus.

N.C. Prisoner Legal Services and the N.C. Justice Center are part of a coalition sending lists of state prison inmates to district attorneys for consideration.

A coronavirus outbreak at Neuse Correctional Institution in eastern North Carolina has contributed to a doubling of confirmed cases in North Carolina prisons. As of Wednesday, 15 inmates had tested positive for COVID-19 statewide. Ten were at Neuse Correctional Institution.

Deberry is currently the only district attorney in North Carolina who has agreed to reduce sentences on the basis of COVID-19 and other health concerns, Finholt said.

Other DAs view situation differently

District attorneys in Mecklenburg, Wake and Orange counties aren’t currently reducing sentences.

Changing a conviction or a sentence post conviction is an extraordinary move, they said. Some also questioned whether they have legal authority to consent to such an action due to health concerns.

“A lot of different things have taken place in order for us to arrive at a conviction, and one has to be very mindful, and ought to have (a) solid basis ... to undo that for some reason,” Mecklenburg District Attorney Spencer Merriweather said.

“I don’t read our current statute broadly enough to give that authority to a prosecutor, nor do I see it for a judge to have that authority,” he said.

Motion for appropriate relief

The coalition sought to have the sentences reduced through a motion for appropriate relief.

Such motions are typically made to correct errors in the judicial process such as proof a key witness lied or if there was ineffective counsel.

Changes in state law appear to allow the court to grant the motions if the prosecutor and defendant agree, according to a UNC School of Government blog on the motion.

The School of Government cautions judges against granting the consent motions without valid grounds on error-free convictions and sentences.

Merriweather said his office consents to only a small fraction of the motions for appropriate relief it gets.

A list of 25 inmates

Merriweather said the coalition sent him 25 prisoners’ names.

He reviewed the list and found one person whose prior record classification — a part of the equation that determines a criminal sentence — was too high. The minimum sentence for the 65-year-old man, who was convicted of habitual felon and common law robbery in 2014, was reduced by about four months, he said.

Deberry said she believes the motion for appropriate relief statute allows reducing sentences in the interest of justice, which includes reducing the spread of COVID-19 and protecting vulnerable people.

“In the end, it was the judge’s decision on whether or not these folks were released,” she said.

Hudson didn’t respond to a voicemail left by a reporter on Wednesday night.

Deberry said her office thoroughly reviewed the nine men’s cases. She described their charges as nonviolent and said there were no human victims of their crimes.

“And they did not pose a public safety risk if they were released,” she said.

Deberry said she looked for cases involving nonviolent convictions and people who were older and at greater risk to the virus. The men ranged in age from 47 to 66.

Their convictions all include drug trafficking, and in some cases two or three counts. Five were convicted of trafficking a schedule I drug. Schedule I drugs are substances that have a high potential for abuse and no medical use, such as heroin, ecstasy and some opiates. Two were convicted of trafficking schedule II drugs, drugs that might have limited medical use, such as cocaine, codeine and methadone.

Another man was convicted of trafficking opium and another was convicted of trafficking cocaine and opium/heroin.

Seven were scheduled to be released between this month and December. Two more were scheduled to be released in 2022 and 2023.

One of the men who was being released was specifically mentioned in a letter to Deberry from the community coalition Durham Congregations, Associations and Neighborhoods asking her to “seriously consider” sentencing relief for an estimated 800 state prisoners whose cases originated in Durham County.

“Criteria could include, but not be limited to, individuals who are 65 or older, individuals who have served 3/4 of their sentence, or individuals serving sentences for low-level felonies or probation/post-release supervision violations,” the letter states.

Deberry and other law enforcement officials and prosecutors across the state already have acted to decrease jail populations through reducing or unsecuring bonds, reducing arrests and other actions to reduce risks during the pandemic.

Deberry was elected in 2018 on a platform of prioritizing violent crime, while using the DA’s Office to promote policies that fight bias such as cash-less bail for certain offenses and reducing mass incarceration.

Other possible actions

Other steps the state could take to reduce the state prison population center on Gov. Roy Cooper ‘s discretionary power to commute, pardon and release people from prison, Finholt said.

“We are hoping he would consider some form of broad-based action, and consider large-scale decarceration,” Finholt said.

A coalition of civil rights groups has filed a lawsuit asking the state Supreme Court to release vulnerable inmates, The News & Observer reported.

Another options would be for state officials to increase reviews for post-conviction release, he said.

Wake and Orange prosecutors

Wake County District Attorney Lorrin Freeman said the coalition sent her office about 34 names.

“In reviewing those at this time, we have not chosen to move forward with any motions for appropriate relief,” Freeman said.

A significant number had habitual felon sentences. Freeman also noted a difference between people who use drugs and people convicted of selling drugs.

“While certainly my analysis may change over time ... right now the prison seems to have a handle on mitigating the spread of the virus and treating those individuals who do contract it,” Freeman said.

“The reality of it is that many of these individuals may have better access (to care) where they currently are,” she said.

Finholt said some of the individuals have places to go, and there are “very strong re-entry resources being put in place” for others.

Orange-Chatham District Attorney Jim Woodall said about 70% of the nearly 40 people on the first list that N.C. Prisoner Legal Services sent his office had been convicted of murder or sexual assault, including a person who had been convicted of raping and murdering two girls. The least serious charges were Class C felonies, the third highest level of felony the state recognized.

“I was surprised by that,” Woodall said. “That no one vetted the list to any degree whatsoever.”

A second list that he received late last week has hundreds of names with most of them “extremely, extremely serious offenses.”

Woodall said he won’t consider those cases, but he has marked others they may consider. Prosecutors may be more comfortable with the idea of furlough for some individuals, in which prisoners leave prison but return to finish their sentence, he said.

Woodall said he has asked the coalition to send more information on the individuals and their health risks.

“I will look at it but I am not willing to make promises,” he said.