The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume V, Issue 4, December 2005

ACCESS

PAROLES TO INCREASE UNDER RECENT LEGISLATION
Under legislation passed by the
General Assembly last summer, the
Post-Release Supervision and
Parole Commission (Parole Commission) is required to
determine the identity
and number of inmates
sentenced under the Fair
Sentencing Act (FSA)
who have served longer
terms of imprisonment
than would have been
required if they had been
sentenced to maximum
terms under the Structured Sentencing Act
(SSA). Senate Bill 622,
Session Law 2005-0276,
§17.28(a) at p. 250. The
Parole Commission is
further required to consider
those prisoners for parole. Id. at
§17.28(c), p. 251. In addition, the
Parole Commission “shall make a
good faith effort to enroll at least
twenty percent (20%) of all program-eligible, pre-Structured
Sentencing felons in the Mutual
Agreement Parole Program
(MAPP) by May 1, 2006.” Id.,
§17.27 at p. 250.

3,700 prisoners were released from
prison in 2004-2005 (including
SSA prisoners who left prison on
post-release supervision). Those

According to Melita Groomes,
Executive Director of the Parole
Commission, early release was
granted to about 708 pre-SSA
prisoners last year. (An additional
989 prisoners convicted of DWI
offenses were released to treatment facilities.) A total of about

To be considered for parole, an
inmate must be in medium or
minimum custody, learn job skills,
and participate in rehabilitative
programs related to the offense for
which the inmate was convicted.
For parole to be granted, two of the
three Parole Commissioners must

releases represented about 10% of
the prison population, which today
stands at more than 37,000 people.
The new legislation is expected to
substantially increase the number
of paroles that will be granted this
year. There are 4,538 prisoners in
North Carolina being held under
convictions pre-dating the SSA
(3,952 FSA, and 586 pre-FSA
prisoners).

agree to approve the offender’s
release.
SSA Sentenced Offenders: The
Structured Sentencing
Act, which became law
October 1, 1994, eliminated the possibility of
parole, opting instead
for “post-release supervision.” Post-release
supervision begins on
the “date equivalent to
[the offender’s] maximum imposed prison
term less nine months,
less any earned time
awarded . . .” by DOC,
and further reduced by
jail credit. NC Gen. Stat.
§15A-1368.2.
In this Issue:
Paroles to Increase Under Recent
Legislation

1

NCPLS Contracts with IDS

2

In Re: Hassan

3

Foothills Opens Security Threat
Group Unit

4

4th Circuit Court of Appeals
In Re: Cabey, No. 04-277

7

New Study on Imprisonment
Urges Reconsideration

8

Commission Examines Safety &
Abuse in America’s Prisons

9

Case Report: State v. Lawson

10

Getting Smart on Crime: Facing
North Carolina’s Prison Crisis

10

Postal Delivery of Access to be
Discontinued

12

NCPLS ACCESS

Page 2
ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board
of Directors who are designated by
various organizations and institutions,
including the North Carolina Bar
Association, the North Carolina
Association of Black Lawyers, the
North Carolina Association of Women
Attorneys, and law school deans at
UNC, Duke, NCCU, Wake Forest and
Campbell.
NCPLS serves a population of more
than 36,000 prisoners and 14,000 pretrial detainees, providing information
and advice concerning legal rights and
responsibilities, discouraging frivolous
litigation, working toward administrative resolutions of legitimate problems,
and providing representation in all
State and federal courts to ensure
humane conditions of confinement and
to challenge illegal convictions and
sentences.

Board of Directors
President, Fred Williams, Esq.
Jim Blackburn
Michelle Cofield, Esq.
James A. Crouch, Esq.
Dean Ronald Steven Douglas
Professor Grady Jessup
Barry Nakell, Esq.
Susan Olive, Esq.
Gary Presnell, Esq.
Professor Ronald F. Wright
Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA

PLEASE NOTE: ACCESS is published

four (4) times a year.

Articles, ideas and suggestions are
welcome: tsanders@ncpls.org

Volume V, Issue 4, December 2005

NCPLS CONTRACTS
WITH IDS
As readers of ACCESS will recall,
legislation passed by the General
Assembly last summer transferred
the authority to contract for
prisoner legal services from the
Department of Correction to the
Office of Indigent Defense Services
(IDS). Senate Bill 622, Session
Law 2005-0276, §14.9. IDS representatives stated an intention to
administer the contract in a manner
that ensured the delivery of legal
services of at least the same quality, and at least to the same extent
as those services were then being
provided.
Negotiations between NCPLS and
IDS were concluded on September
29, 2005, when the parties executed
a new contract. The contract provides a term of five months. The
financial terms of the new contract
are based upon the legislative
appropriation, derived from rates
agreed in 2002. But since 2002,
the prison population has increased
almost 12% (from 33,104 prisoners in 2002, to more than 37,000
today). A further 2.8% increase
(more than 1,000 additional prisoners) is projected this year. With the
increasing prison population, there
is a corresponding increase in the
demand for legal services. And the
cost of providing those services has

also increased by 4.7% per year
since October 2002, according to
the Consumer Price Index. IDS
expressed regret that no additional
funding had been appropriated.
As a consequence of inadequate
funding, it appears that NCPLS
will be forced to adopt measures
consistent with the financial constraints of our new contract. Balancing the value to our clients of
the services we presently provide
against the available funding, we
will have to identify the kinds of
services that can be eliminated.
These difficult decisions will be the
subject of deliberations at the next
meeting of the NCPLS Board of
Directors this month. In the meantime, we have submitted a request
to the Department of Correction
for supplemental funding which is
presently under consideration.
During the coming months, we will
be working with IDS to develop
information and materials that
will help the General Assembly to
understand the services NCPLS
provides, as well as the value of
those services to our clients and
the citizens of North Carolina. We
hope to report further developments in future editions of ACCESS.

Volume V, Issue 4, December 2005

NCPLS ACCESS

Page 3

IN RE: HASSAN
[Editor’s note: For the past decade,
NCPLS has provided limited assistance to inmates in connection with
immigration matters. For instance,
we have successfully represented
prisoners who were United States
citizens, but who were erroneously
being considered for deportation,
non-English speaking prisoners
who were convicted without the
benefit of an interpreter, and noncitizens who were not advised of
the immigration consequences of
entering a guilty plea. As in this
case, NCPLS has also successfully
represented non-citizen prisoners
who faced persecution, torture, or
murder upon removal.]
NCPLS Staff Attorneys Lisa Chun
and Hoang Lam successfully
defended a client in immigration
court on removal proceedings in
which the Bureau of Immigration
and Customs Enforcement (BICE)
(formerly known as the Department
of Immigration and Naturalization
(INS)) attempted to deport our
client to his native country, Somalia. In re: Hassan, File No. A
76 413 781 (U.S. Department of
Homeland Security, Bureau of
Immigration and Customs Enforcement) (October 25, 2005).
Having been granted political
asylum, our client was legally
residing in the United States.
However, he was subsequently
convicted of embezzlement and
sentenced to 8 to 10 months to
be served in the North Carolina
Department of Correction.
While our client was incarcerated,
BICE filed an immigration detainer

Staff Attorneys Lisa Chun and Hoang Lam

against him alleging that he was
deportable due to his conviction of
an aggravated felony. In response,
NCPLS filed a claim in immigration court asserting that there was
a clear probability that our client
would face persecution and torture
if he were forced to return to
Somalia. Therefore, despite his
conviction of an aggravated felony,
NCPLS argued that our client was
entitled to remain in the United
States under a procedure known as
Withholding of Removal.
In the early 1990’s, Somalia was
gripped by a civil war in which the
government was overthrown by
clan warlords. Our client’s family
had held prominent positions in the
former government and were members of a minority clan traditionally
discriminated against by the clan
headed by the warlords who had
overthrown the government.
Because of his family’s involvement in the former government and
his membership in a minority clan,
our client suffered severe persecu-

tion and torture in the aftermath of
the civil war, until he was able to
escape to the United States where
he was granted political asylum.
Conditions in Somalia have not
improved for the minority clan
since the civil war – the country
continues to be plagued by clan
warfare and rampant human rights
abuses. With no central government to protect those who are
vulnerable in these circumstances,
our client faced grave and perhaps
mortal danger if he were forced
to return to Somalia. This critical
point was established with expert
testimony and was argued on our
client’s behalf. The immigration
judge found the argument persuasive and ruled in our client’s favor.
As a result, our client is permitted
to remain and work in the United
States. Upon his release, our client
has reunited with his family (who
also escaped from Somalia). They
have made the United States of
America their new home.

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Page 4

Volume V, Issue 4, December 2005

FOOTHILLS OPENS SECURITY THREAT GROUP UNIT
A “Security Threat Group” unit
(designated the STGU) opened this
summer at Foothills Correctional
Institution that houses inmates who
have been identified as prison gang
members.
Not every inmate validated as a
gang member is eligible for placement at the STGU, but must meet
additional criteria. A prisoner is
initially “validated” as a gang
member by the Facility Intelligence
Officer, based upon a determination that the prisoner meets one
of twelve criteria that are used to
establish membership in a Security
Threat Group. To be eligible for
placement at the STGU, an inmate
must meet two of those criteria.
(Most states operating similar
programs only require that one of
the criteria be met.) A validated
inmate’s status is reviewed at a
hearing every six months.
NCPLS met with DOC officials to
gain information about this program, conducted research into
the law governing such designations and the operation of similar
programs, and a team of NCPLS
advocates has visited the STGU.
The STGU is a 192-bed unit made
possible by a $770,000 federal
grant to the North Carolina Department of Correction. The DOC’s
stated purpose for the STGU unit
is not to subject gang members to
more onerous restrictions, but to
educate gang members through
cognitive behavior therapy. The
goal of cognitive behavior therapy
is to help achieve a change in the
way people think, feel, and behave.

Several states have implemented
similar programs and report positive results. Not only has gangrelated violence decreased, but
prison violence within their entire
systems declined in those states
that implemented an STGU. North
Carolina’s program is modeled on
a similar program in Connecticut,
one that has had excellent results.
Validation and
Legal Standards
Many state prisons, including those
in North Carolina, “validate,” or
identify, gang members. If identified as a gang member, the inmate
faces more restrictions than members of the general population of
prisoners. The practice of placing
additional restrictions on those validated as gang members was challenged in federal court by inmates
in South Carolina. The South
Carolina Department of Correction
developed a policy that provided
for the identification of members
of a “Security Threat Group,” and
required housing assignments in a
segregation unit with limitations on
their privileges.
In the case, In re Long Term Admin.
Segregation of Inmates Designated as Five Percenters, 174 F.3d
464, 471 (4th Cir.), cert. denied,
Mickle v. Moore, 528 U.S. 874,
145 L.Ed.2d 151, 120 S. Ct. 179
(1999), the U.S. Court of Appeals
for the Fourth Circuit upheld the
policy and practice. According
to the court, the transfer of an
inmate to less amenable and more
restrictive quarters for non-punitive reasons is “well within the

terms of confinement ordinarily
contemplated by a prison sentence.
Hewitt v. Helms, 459 U.S. 460, 468
(1983).”
Thus, there appears to be no legal
basis to oppose a policy or practice
involving the identification and
segregation of prisoners designated
as members of a security threat
group. That conclusion is consistent with previous decisions of the
courts. For example, there is no
constitutional right to be housed
in a particular prison. Meachum v.
Fano, 427 U.S. 215 (1976). The
courts allow correctional officials
wide discretion in determining how
to classify and house inmates.
Background and Mission
By comparison with other states,
North Carolina has relatively few
gang members. The DOC has
identified only about 470 prisoners
as gang members, out of a population of 37,000 inmates. North
Carolina prison officials said they
confirmed that eleven assaults were
gang-related last year. During
the same period, there were 552
assaults on officers and 165 inmateon-inmate assaults.
The idea behind the STGU in
North Carolina, as expressed by
DOC officials, is to prevent growth
in gang-related violence. Some
states, like New Jersey, experienced
a rapid increase in gang members,
and prison violence, over a relatively short period of time. Those
states had to create solutions in the
(Continued on Page 5)

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Volume V, Issue 4, December 2005

Page 5

SECURITY THREAT GROUP UNIT
(CONTINUED)

(Continued from Page 4)

midst of crisis, something North
Carolina seems to have avoided
with this pro-active approach.
Assignments to the
STGU are Limited
To be assigned to the STGU, an
inmates who has been validated
previously as a member of a gang
must be referred
for placement
by their Facility Intelligence
Officer. There
are four criteria (which the
DOC has not
disclosed) which
the inmate must
meet in order
to be referred
for placement.
Additionally, the
placement must
be approved by
the Superintendent of the referring prison.
The reasons for the referral must
be fully documented for the review
of the Regional Director. If the
Regional Director approves the
recommendation, he forwards it to
the Chief of Security, who provides
a fourth level of review before the
inmate is finally selected for the
STGU. The inmate is then notified
of the decision. If the prisoner
objects to the decision (either
because he will be transferred or
the referral was disapproved), he
can request a hearing on the issue

before the Classification Committee at the unit. If the inmate is not
satisfied with the outcome of that
proceeding, he can appeal.
The Program
Once admitted to the program, the
prisoner will be required to complete three phases. Each phase

is designed to take three months,
and completion of the entire program can be accomplished in nine
months. A Classification Committee meets and decides when an
inmate is eligible for “promotion”
to the next phase. Incentives,
in terms of increased privileges
(contact visits, increased out-of-cell
time, phone use), are provided as
the inmate progresses through each
phase.
If the inmate completes the program successfully, he is returned

to regular population and loses his
“gang member” validation status.
However, an inmate who fails to
progress through all three stages
can remain at the unit indefinitely.
An inmate can be “demoted” from
one phase to a lower one for misconduct, and could presumably be
kicked out of the program altogether (with a consequent negative
impact on classification and
housing).
In the first phase,
conditions are
restrictive and
controlled.
Members of rival
gangs are not
permitted to be
housed together.
The inmates
receive orientation about the
program and also
receive an anger
management and
a stress management program.
The inmate has some privileges,
but a “no-contact” visitation policy
is in effect.
In the second phase, inmates from
rival gangs are permitted to intermingle. They form “teams” in
which they participate in nearly
every activity. The team members
exercise together and participate
together in other classroom activities (including cognitive behavior
(Continued on Page 6)

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Volume V, Issue 4, December 2005

SECURITY THREAT GROUP UNIT
(CONTINUED)

(Continued from Page 5)

classes). The inmates are also
required to keep journals during
this phase.
In the third phase, the inmate
is prepared for his return to the
general prison population. In this
phase, prisoners receive most of the
privileges enjoyed by general population inmates, including contact
visits. Relapse prevention instruction is also provided in this phase.
Staffing
The STGU employs a full-time
psychologist who can conduct
tests, track results, and monitor the
program. There are a number of
program counselors, and in addition, there are two “Behavioral
Specialists” employed at the unit.
These are cognitive behavior therapists whose goal is to help those
assigned to the unit to change their
thinking and behavior related to
gang membership.
Every correctional officer at the
unit has to undergo cultural diversity training and other specialized
training. The idea is for program
and security personnel to work
closely together so that the correctional officers understand the goals
of the program and do not send
mixed signals to the inmates.

The Facility

Conclusion

The STGU comprises one unit of
Foothills Correctional Institution,
a close custody prison located in
Morganton. The unit, divided into
different cell blocks, will hold 192
inmates at peak capacity.

NCPLS appreciates the opportunity
extended by DOC officials to tour
the STGU and to offer suggestions for safeguarding the rights
of prisoners who will be confined
there. During the tour, and in conversations before and afterward, it
seemed clear that these correctional
professionals were sincerely committed to the humane treatment of
people who have been validated
as gang members, as well as to
measures that have been implemented to ensure the protection of
their legal rights. We were also
impressed by the careful planning
that went into the development of
the program.

NCPLS staff visited the STGU
shortly before it became operational. The cell blocks have been
re-fitted to contain additional bars
on the upper and lower levels of
the two-tier cell blocks. There is a
small classroom on the top tier of
each cell block.
Outside the STGU cellblocks, but
within the facility, is an area for
counseling services specifically for
the inmates assigned to the STGU.
This is where the “teams” (in
Phase Two) will meet and receive
training, classroom instruction,
and behavior modification classes.
STGU inmates will take their
meals in the regular dining area at
Foothills, but will have little or no
contact with the other inmates at
the Institution.

The program has a worthy goal
– promoting the safety of both
inmates and DOC personnel, and
offering prisoners an opportunity
to prepare for success upon release.
This goal is to be achieved through
a forward-thinking program of
education, treatment, and therapy.
However, organizations can sometimes lose sight of their missions,
and people with responsibility can
sometimes abuse their authority.
NCPLS will monitor the STGU to
be sure that any questionable policies or practices receive appropriate attention.

Volume V, Issue 4, December 2005

NCPLS ACCESS

Page 7

4TH CIRCUIT COURT OF APPEALS
In Re: Cabey, No. 04-277
(4TH CIR., NOVEMBER 15, 2005)
Last month, the U.S. Court of
Appeals for the Fourth Circuit
ruled that a North Carolina inmate
has the right to prosecute his petition for habeas corpus. NCPLS
Senior Attorney J. Phillip Griffin
was appointed by the court to represent the inmate.
In 1982, our client was convicted
of five counts of armed robbery.
He was sentenced to four concurrent sentences of 20-25 years, and
one consecutive sentence for life.
He filed two habeas petitions, one
in 1987 challenging his conviction,
and another in 1996, challenging
the computation of his good time
credits. Both petitions were denied
by the federal courts.
In 1992, the Parole Commission
granted our client a “paper parole”
from the life sentence and he began
serving the 20-25 year concurrent
sentences. (“Paper parole” was a
practice of the Department of Correction (DOC) by which an inmate
was considered to have completed
the term of one sentence, while
being retained in custody to serve
additional consecutive sentences).
Our client’s parole from the life
sentence expired in 1997, and the
Parole Commission issued to our
client an unconditional discharge
from the terminated sentence.
However, also in 1997, the N.C.
Court of Appeals ruled that there
was no statutory authorization for
paper paroles. Robbins v. Freeman, 127 N.C. App. 162, aff’d

per curiam 347 N.C. 664 (1998).
Rather, the court held that the DOC
should aggregate consecutive sentences and determine parole eligibility based upon the sum of the
sentences. On the basis of the Robbins decision, our client’s discharge
and parole were rescinded, and his
life sentence was reinstated.
In 2000, our client filed a motion
for appropriate relief in state court,
arguing that the reinstatement of a
discharged sentence was illegal and
that he had completed the 20-25year sentences and was entitled to
immediate release. When the N.C.
courts denied his motion, he filed
a third petition for a writ of habeas
corpus in federal district court.
Under federal law, a “second or
successive habeas corpus application” raising issues which were not
raised in the earlier petition must
be dismissed unless the court of
appeals determines that it is either
based upon a new rule of law made
retroactive by the Supreme Court,
or upon facts which would be sufficient to establish actual innocence
of the offense. The district court
dismissed our client’s petition
without prejudice to allow him to
seek authorization from the Fourth
Circuit Court of Appeals to file a
second or successive petition. Our
client appealed the dismissal. The
Fourth Circuit initially treated the
appeal as an application for authorization to file a second or successive petition and appointed NCPLS
to represent the client.

Under cases from the Supreme
Court and other circuit courts of
appeal, “second or successive
habeas corpus application[s]”
refers to petitions that raise issues
which had either been raised
unsuccessfully in earlier petitions,
or which could have been raised
but were not. Therefore, we argued
that since our client’s petition
concerned the legality of a change
in his sentences which took place
after he had filed the earlier petitions, the new petition did not raise
issues that could have been raised
in an earlier filing. We argued that
authorization was not necessary
under the circumstances and that
the court should remand the petition to the district court and treat it
as an initial application.
The State contended that the plain
meaning of the statutory phrase
“second or successive,” encompassed the circumstances of this
case. Even though the facts that
our client challenged did not exist
and could not have been raised in
an earlier petition, the State argued
that it was the intention of Congress generally to preclude judicial
review of claims brought by a
prisoner in second or successive
petitions.
By a vote of two-to-one, the Fourth
Circuit Panel which heard the case
agreed with our client’s position.
Because our client raised for the
first time facts that did not exist
(Continued on Page 8)

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Volume V, Issue 4, December 2005

In Re: Cabey
(Continued)

(Continued from Page 7)

when earlier petitions had been
filed, the matter should be treated
as an initial application for habeas
review.
The dissenting judge argued that
the terms, “second or successive,” were to be taken literally;
that our client’s petition should

be dismissed since he had filed
earlier habeas petitions. The
dissenting judge suggested that
the court should hear the case en
banc, a procedure by which all
the judges on the court decide
the appeal anew. (A rehearing en
banc may be requested by either
party, or by “an active judge of the

court.” The day after the opinion issued, the State submitted a
motion for rehearing. The matter
will be decided by the vote of a
majority of active circuit judges.
F.R.App.P. 35, Local Rule 35(b).
We will report in future issues of
ACCESS whether the panel decision
becomes final or is heard en banc.

NEW STUDY ON IMPRISONMENT
URGES RECONSIDERATION
The spiraling trend toward everincreasing numbers of prisoners
over the past 30 years continues
with no end in sight. In 1972,
the total prison population in the
United States numbered about
330,000 people. Today, there are
more than 2,250,000 people in
prison.
That enormous growth has been
spawned by the notion that a “get
tough” approach to crime will
better protect society and reduce
lawlessness. But a new study by
the Sentencing Project, a Washington, D.C. based policy advisory
group, concludes that there appears
to be little correlation between
crime rates and the harsh penalties
that have fueled unprecedented
growth and unparalleled rates of
incarceration in the United States.

“Incarceration and Crime: A
Complex Relationship,” analyzes
research conducted on the relationship between incarceration
and crime. The popularly held
belief that incarceration reduces
the crime-rate appears to be a
gross over-simplification. While
crime rates have dropped significantly in the past decade, only
about 25% of the reduction can be
attributed to incarceration. Threequarters of the decline is attributable to other factors, including
a growing economy, changes in
the market for illegal drugs, law
enforcement strategies such as
community policing, and community responses to crime. According to the report, there are more
effective ways to fight crime than
incarceration. For example, drug

treatment, interventions with atrisk families, and school completion programs all have a greater
impact on crime-prevention and
are much more cost-efficient.
As our society bears the exorbitant and escalating costs of incarceration, as communities struggle
with the decimation of misguided
criminal justice policy, and as
families are ripped apart by punishments that are unduly harsh and
counter-productive, there is “an
urgent need for the reconsideration of the punitive sentencing
and parole policies that currently
dominate the criminal justice
landscape.” This report provides a
well considered starting point for
that reconsideration.

Volume V, Issue 4, December 2005

NCPLS ACCESS

Page 9

COMMISSION EXAMINES SAFETY & ABUSE
IN AMERICA’S PRISONS

Each year America spends over $60 year in four public hearings, the
billion on corrections. In 2005,
Commission will explore violence,
more than 13.5 million people will sexual abuse, degradation, severe
have spent time in prison or jail,
overcrowding, inhumane treatment
and on any given day, the incarcer- for the mentally-ill, and insufficient
ated population will total more than support for the men and women
2,225,000 people. Over 750,000
who staff facilities. The Commispeople are employed by correcsion will produce a report includtional agencies across the country.
ing practical recommendations
Yet, there is little understanding
that local, state, and federal policy
among the general public about
makers can act on.
what goes on inside correctional
facilities, or the problems and dan- At the Commission’s hearing in
gers faced by those who live and
St. Louis on November 1, Theowork in a correctional setting.
dis Beck, Secretary of the North
Carolina Department of Correction,
In an effort to promote better
described how the job of a correcunderstanding of the correctional
tions officer has become increassystem, the Vera Institute of Jusingly complex and challenging
tice, a nonprofit organization that
as the prison and jail population
has worked for more than 40 years has expanded and grown more
to improve the administration of
diverse and troubled. “Today’s
justice, provided funding to create
correctional officer must be able to
the National Commission on Safety look at situations from an inmate’s
& Abuse in America’s Prisons.
perspective,” said Beck. “He must
The Commission is co-chaired
be in tune to the changing situaby former United States Attorney
tion of aging inmates, know how
General Nicholas de B. Katzento deal with offenders who may be
bach, and the Honorable John J.
suicidal, be able to recognize gang
Gibbons, former Chief Judge of
signs and colors, speak foreign lanthe Third Circuit Court of Appeals. guages, and be sensitive to issues
The 21-member, nonpartisan Com- involving supervision of offenders
mission includes other respected
of the opposite sex.” Secretary
civic leaders, seasoned corrections
Beck advocated greater support for
professionals, advocates for the
correctional professionals and the
rights of prisoners, former prisoncommitment of public resources
ers, and members of the religious
necessary to accomplish the correccommunity. Over the course of a
tional mission.

On day-two of the St. Louis hearing, Michael S. Hamden, executive director of NCPLS, addressed
the need for the need for sound
operational standards and oversight
in the correctional setting. There
are no mandatory national standards for prisons and jails, but the
American Correctional Association – a professional association
largely composed of correctional
professionals – develops standards and accredits facilities that
meet their standards. Hamden has
served since 1998 as a member of
ACA’s Standards Committee and
as a member of the Commission
on Accreditation for Corrections.
Initially a skeptic of accreditation, Hamden is now a believer in
the accreditation process, but he
described the limits of the process
and distinguished between professional accreditation and other
necessary forms of oversight.
The Commission is seeking information and accounts from people
who are or have been incarcerated,
and from people who work in a
correctional facility. Accounts may
be submitted to the Commission at
601 Thirteenth Street, N.W., Suite
1150 South, Washington, D.C.
20005. The Commission’s final
report and recommendations are
expected in March 2006.

NCPLS ACCESS

Page 10

Volume V, Issue 4, December 2005

CASE REPORT: STATE V. LAWSON
By Lynne Rupp, NCPLS Senior Staff Attorney

[Editor’s note: Ms. Rupp, a former
public defender and private practitioner, leads the NCPLS Post-Conviction Team. The following is a
brief account of one of Ms. Rupp’s
recent successes.]
NCPLS accepts a limited number
of court appointments to represent
defendants in criminal appeals. One
of the most recent of those appeals
was the case of State v. Lawson
(COA04-564), in which the defendant was convicted of assault with
a deadly weapon inflicting serious
injury. The brief filed on behalf
of the defendant argued that the

State failed to present adequate
evidence on the element of the
deadly weapon. In a decision filed
20 September 2005, the North
Carolina Court of Appeals ruled
in favor of the defendant, arresting judgment on the felony assault
and remanding the case to the trial
court for entry of judgment on the
lesser included offense of assault
inflicting serious injury, a misdemeanor.
On 30 September 2005, counsel for
Mr. Lawson received an addendum
to the opinion in the case. On that
date, the Court of Appeals granted

the defendant’s Motion for Appropriate Relief, filed in the Court of
Appeals after Mr. Lawson’s brief
had been filed, but prior to the
Court’s decision in the case. The
argument in this motion was that
Mr. Lawson’s aggravated sentence
on the felony assault violated the
requirements of Blakely v. Washington, 542 U.S. 296 (2004). The
Court of Appeals agreed, again
vacating the aggravated sentence
and remanding for resentencing.
The State has appealed these
decisions to the North Carolina
Supreme Court.

GETTING SMART ON CRIME:
NORTH CAROLINA’S PRISON CRISIS
By: Kira Weiss, NCPLS Law Clerk

On Monday, November 14, 2005,
two North Carolina social justice
organizations, N.C. Families
Against Mandatory Minimums
(NCFAMM) and N.C. Policy
Watch, hosted an event in Raleigh
called “Getting Smart on Crime:
Facing North Carolina’s Prison
Crisis.” The focus of the forum
was sentencing law and policy in
North Carolina. Key-note speakers included the Honorable Burley
Mitchell, Former Chief Justice
of the N.C. Supreme Court, Dan
Blue, Former Speaker of North
Carolina House of Representatives,
and Mark Mauer, Executive Director of The Sentencing Project in
Washington, D.C. Following
opening remarks by NCFAMM’s
LaFonda Jones, Mr. Mauer delivered an expert presentation on the

complex relationship between incarceration and crime. Among the
startling statistics he shared were:
— 1 in 3 Blacks, in 6 Hispanics,
and 1 in 16 whites can expect to
go to prison sometime during their
lifetimes
— 1 in 6 prisoners is mentally ill
— 3 of 4 prisoners has a substance
abuse problem
These numbers raise questions
about whether further tightening
our criminal laws and building
more prisons can be an effective
approach to addressing crime.
Mr. Mauer’s message was clear:
Policy makers need to adopt a balanced approach to crime control,
including alternatives to incarceration; programming, and treatment

for offenders; and community support of ex-offenders.
Over-reliance on incarceration and
prison construction has proven
costly and comparatively ineffective. One recent study conducted
by The Sentencing Project concluded that there appears to be little
correlation between crime rates and
the harsh penalties that have fueled
unprecedented growth and unparalleled rates of incarceration in the
U.S. According to the study, “the
length of time an offender remains
behind bars has a negligible effect
on whether or not he or she will
[re-offend].” R. King, M. Mauer,
& M. Young, Incarceration and
Crime: A Complex Relationship,
The Sentencing Project (2005).
(Continued on Page 11)

Volume V, Issue 4, December 2005

(Continued from Page 10)

NCPLS ACCESS

Page 11

GETTING SMART ON CRIME (CONTINUED)

Most of the people who go to
prison return to live in society. But
criminal justice policy provides too
little help in preparing prisoners to
succeed, and too little support once
they are released. According The
Sentencing Project, “studies show
that community supervision combined with some form of rehabilitative program following a prisoner’s
release helps reduce recidivism,
[yet] more than 100,000 prisoners
are being released each year without any form of community correctional supervision.”
The cost of housing one inmate in
a N.C. prison for a year averages
$23,199. According to Mr. Mauer,
the cost of providing the kind of
supportive and rehabilitative services advocated by The Sentencing
Project, FAMM, and many correctional professionals costs about
$2,000 per year per inmate.
While there is no question that
these issues are important, another
critical piece of the prison crisis
was conspicuously missing from
the dialogue (at least to the prisoner rights advocates in the audience). What about the impact that
conditions of confinement have on
the future health and well-being of
inmates? Not a day goes by that
NCPLS does not receive a candid
letter from an inmate asking “Why,
since I obviously need _________
(e.g. substance abuse treatment, an
education, a trade, mental health
treatment), can’t I get into a program while I’m incarcerated?”
Many prisoners know they need
help if they are to have a realistic
prospect of success after release.
Certainly, it would be “smart on

crime” to ensure that every prisoner who wants and needs help
receives it.

controversial subject in a meaningful way which deserves serious
consideration.

The Honorable Burley Mitchell
followed Mr. Mauer taking an unexpected and courageous stand on
a controversial topic. The solution
to North Carolina’s prison crisis,
he explained, is the decriminalization of street drugs. Mr. Mitchell,
a former Chief Justice of the N.C.
Supreme Court, predicted that such
an approach would “considerably
decrease the number of murders
and robberies” that occur in N.C.
It would also have a profound impact in reducing the prison population and the cost of our correctional
system. While he did not provide
hard data, some in the audience
appeared receptive to the idea.

But perhaps the most profound
exchange heard during the event
came at the end. When the floor
was opened to comments from the
audience, a man asked the panel
the following questions:

The following day, N.C. Policy
Watch’s Chris Fitzsimon wrote that
“Mitchell is far from the only voice
advocating decriminalization of
drugs. Many other law enforcement
officials and judges agree. That
doesn’t mean it is the right thing to
do, but it does mean that the proposal deserves some honest
debate.” “The discussion of decriminalization,” Fitzsimon went
on to say, “forces us to consider the
role of substance abuse in crime
and may lead to more support for
drug treatment programs as an
alternative to prison.” Fitzsimon
endorsed Mitchell’s break from the
conventional approach to policy
debate that makes controversial
ideas and creative solutions to
social issues off-limits to politicians. In his remarks, Justice
Mitchell advocated an unconventional approach to addressing a

1. “Do you believe offenders can
be rehabilitated?”
2. “If so, do you personally know
any who have been rehabilitated?”
3. And, “If you do know any, why
aren’t they sitting up there on the
panel with you?”
The panel’s answer? Silence.
About the Sponsors:
N.C. Policy Watch monitors public policies and state budgets to protect human
services for people in need in N.C.. You
can write to this organization at P.O. Box
12800, Raleigh, NC 27605. On the web:
www.ncpolicywatch.org
NCFAMM supports flexible sentencing
laws that give judges the discretion to
distinguish between defendants and
sentence them according to their culpability. For more information about
NCFAMM, write to 115 Market Street,
Suite 360-C, Durham, NC 27701.
FAMM (the national organization) on the
web: www.famm.org.
The Sentencing Project promotes reduced
reliance on incarceration and increased
use of more effective and humane alternatives to deal with crime. It is a nationally recognized source of criminal justice
policy analysis, data, and program information. The Sentencing Project can be
reached at 514 Tenth Street, NW, Suite
1000, Washington DC 20004. On the
web: www.sentencingproject.org.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.
1110 Wake Forest Road
P.O. Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: tsanders@ncpls.org

Visit our website at:
http://www.ncpls.org

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