Can North Carolina's Parole Commission grant a prisoner eligible for '1/3 parole' under G.S. 15A-1371(g) an unsupervised parole, and does the '1/3 parole' rule reach Fair Sentencing Act felons (those with sentences under 18 months for crimes committed on or after July 1, 1981)?
Plain-English summary
Luther M. Mitchell, Sr., Administrator of the North Carolina Parole Commission, asked the AG two questions about the "1/3 parole" program established in G.S. 15A-1371(g). First, could the Commission grant unsupervised parole to prisoners eligible for 1/3 parole? Second, did the 1/3 parole rule reach felons sentenced to less than 18 months for crimes committed on or after July 1, 1981 (the date the Fair Sentencing Act came into effect)?
The 1984 AG answered yes to question 1 and no to question 2.
Unsupervised 1/3 parole. G.S. 15A-1371(g) says that for a person granted 1/3 parole, "the conditions of parole, unless otherwise specified by the Parole Commission, are those authorized in G.S. 15A-1374(b)(4) through (10)." The phrase "unless otherwise specified by the Parole Commission" is the discretion key. The presumptive conditions include a supervision requirement under G.S. 15A-1374(b)(6) (report to a parole officer at reasonable times). But the statute's reservation of "otherwise specified" power is broad enough to let the Commission eliminate the supervision condition entirely and produce an unsupervised parole.
Fair Sentencing Act exclusion. G.S. 15A-1371(g) sits in Article 85 of Chapter 15A. 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 is the Fair Sentencing Act, enacted in 1979 and effective for crimes committed on or after July 1, 1981. Article 85A applies to all felons sentenced for post-effective-date crimes, with carve-outs for Class A and B felons (life or death), Class C felons (life), and Committed Youthful Offenders (G.S. 15A-1380.1). Everyone else who committed a felony after July 1, 1981 falls under Article 85A and is therefore excluded from Article 85's 1/3 parole program.
The practical consequence for the inmate the question described, a person serving under 18 months for a crime committed after July 1, 1981, is that the 1/3 parole program is unavailable. Parole eligibility for that inmate is governed entirely by Article 85A.
Currency note
This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's parole and sentencing law has been comprehensively rewritten since 1984. The Structured Sentencing Act (effective October 1, 1994) replaced the Fair Sentencing Act and eliminated traditional parole for most offenses committed after its effective date. The 1/3 parole program, Article 85, and Article 85A have been substantially modified or replaced. A current question about parole eligibility, supervision conditions, or program access should be referred to a North Carolina criminal defense attorney and the current statutes.
Historical context: what the AG concluded
The 1984 opinion sits at the transition between the older general-parole regime and the newer Fair Sentencing Act regime, and its analytical work is mostly about navigating that boundary.
The discretion-to-waive reading was straightforward. The phrase "unless otherwise specified by the Parole Commission" is a delegated-discretion clause. The opinion read it without restriction: the Commission can specify any conditions different from the presumptive (b)(4)-(10) set, including specifying no condition at all. That gives the Commission flexibility to tailor 1/3 parole to specific cases.
The Article 85 / Article 85A division was harder. The Fair Sentencing Act was new in 1979 and effective in 1981. By 1984, the corrections system was still working out which inmates fell where. The AG read G.S. 15A-1370.1's "not subject to Article 85A" clause as a clean default rule: if Article 85A applies, Article 85 does not.
It explicitly listed the Article 85A exclusions. Class A and B felons, Class C lifers, and Committed Youthful Offenders remain under Article 85. Everyone else with a post-1981 felony is under Article 85A. This is helpful clarification for the Commission, because the exclusion list is easy to misread.
It tied sentence length to article applicability, but only indirectly. The asked-about inmate was sentenced to less than 18 months. The opinion does not treat sentence length as an Article 85A trigger. The trigger is felony status plus crime-date plus not-falling-within-the-exclusions. An under-18-month sentence does not lift the inmate out of Article 85A.
Background and statutory framework
The 1/3 parole program in G.S. 15A-1371(g) was a discretionary release mechanism for prisoners who had served one-third of their maximum sentence. The Parole Commission could grant 1/3 parole at any time after the threshold was met, subject to its general criteria for parole.
Under G.S. 15A-1374(b), the Commission had a menu of conditions it could impose on a parolee. Subsections (b)(4) through (10) included financial restitution, employment requirements, residence stability, restricted activities, regular reporting to a parole officer, drug and alcohol abstinence, and other conduct-related obligations. The Commission could pick from the menu or, under G.S. 15A-1371(g)'s "otherwise specified" language, depart from the presumptive set.
The Fair Sentencing Act (Article 85A of Chapter 15A) was the major North Carolina sentencing reform of 1979, effective July 1, 1981. It introduced presumptive-sentence ranges, narrowed parole eligibility, and aimed to produce more uniform sentencing across cases. Article 85A applied to all felons except those listed in the carve-outs.
G.S. 15A-1370.1 was the dividing-line statute: Article 85 applied only to inmates not subject to Article 85A. The two articles operated as complementary, non-overlapping regimes once the Fair Sentencing Act took effect.
Common questions
Why does the Fair Sentencing Act exclude inmates from 1/3 parole?
The Fair Sentencing Act narrowed parole eligibility as part of a broader move toward determinate sentencing. The 1/3 parole program was a feature of the older indeterminate-sentencing regime under Article 85. By replacing Article 85 for most felonies, Article 85A also replaced the 1/3 parole rule for those felonies. Different post-conviction release mechanisms applied.
Could the Parole Commission impose conditions stricter than the presumptive set?
The opinion does not address stricter conditions, only the question of whether the Commission could waive a presumptive condition. The "otherwise specified" language reasonably permits both waiving and adding conditions, subject to whatever general constraints existed on the Commission's authority. The opinion's narrow question was about the supervision condition specifically.
Did unsupervised 1/3 parole mean the parolee had no obligations at all?
No. The opinion's reasoning was that the Commission could waive the supervision condition (b)(6) specifically. Other conditions from the (b)(4)-(10) set could still apply. The parolee remained on parole, subject to revocation for new offenses, but did not have to report to a parole officer.
What happened to Committed Youthful Offenders under Article 85?
G.S. 15A-1380.1 excluded Committed Youthful Offenders from Article 85A, leaving them under Article 85's older parole regime. The 1984 opinion does not analyze their 1/3 parole eligibility specifically, but presumably they were eligible because they remained in Article 85.
Has any of this survived into modern North Carolina law?
The Structured Sentencing Act (effective October 1, 1994) replaced both Article 85 and Article 85A for offenses committed after its effective date and eliminated traditional parole. Modern North Carolina inmates serve under structured sentencing's combination of active sentencing, post-release supervision, and discretionary credits. The 1/3 parole program is a historical artifact, not a live mechanism.
Source
- Landing page: https://ncdoj.gov/opinions/parole-fair-sentencing-act/
Citations
- N.C.G.S. § 15A-1370.1
- N.C.G.S. § 15A-1371(g)
- N.C.G.S. § 15A-1374(b)
- N.C.G.S. § 15A-1380.1
Original opinion text
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. 15A-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-1374(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