Did defendants convicted of drug trafficking under the first version of G.S. 90-95 (offenses between July 1, 1980 and June 30, 1981) qualify for good time and gained time credits, and were they eligible for parole after serving the statutory minimum?

Plain-English summary

Ben G. Irons, II, a Senior Administrative Assistant at the NC Department of Correction, faced a calendar-driven puzzle. The General Assembly had enacted two versions of G.S. 90-95 (the drug trafficking statute). The first version covered offenses committed between July 1, 1980 and June 30, 1981. The second version replaced it on July 1, 1981, when the Fair Sentencing Act took effect. The two versions were parallel except for one structural difference: the first-version prisoners were eligible for parole, while the Fair Sentencing prisoners under the second version were not.

The AG was asked four questions about prisoners sentenced under the first version. Assistant Attorney General James Peeler Smith, in an opinion issued under AG Rufus L. Edmisten, answered them:

1. Are first-version defendants eligible for good time? Yes.

2. Are they eligible for parole? Yes, but not until they have served the applicable minimum sentence (less earned good and gained time credit).

3. How is the parole eligibility date computed? The defendant must serve the statutory minimum, reduced by earned good and gained time, before becoming parole-eligible.

4. Does a substantial-assistance finding under G.S. 90-95(h)(6) affect parole eligibility dates? Yes. A defendant who cooperated may have received a lesser minimum sentence from the judge under (h)(6); that lesser minimum (also reduced by good and gained time) is the date the defendant becomes parole-eligible.

The analytical move was statutory construction by absence. The drug trafficking statute did not address good time or gained time. The General Assembly had elsewhere authorized the Secretary of Correction to set good-time and gained-time regulations for non-Fair Sentence prisoners (G.S. 148-13) and provided that those credits reduce parole eligibility (G.S. 15A-1355(c)). Where the General Assembly wanted to deny credits (as in the burglary statute G.S. 14-52 and the armed robbery statute G.S. 14-87), it said so explicitly. The drug trafficking statute did not, so the AG concluded the standard credits applied.

The (h)(5) subsection in the first version provided that drug trafficking defendants had to serve their applicable minimum before unconditional release or parole, except as provided in (h)(6) (the substantial assistance subsection). The AG read (h)(5) as restricting parole eligibility (so the inmate could not get out before the minimum) rather than as denying good time and gained time. So the minimum gets reduced by good time and gained time, and parole eligibility is the day the inmate has served that reduced minimum.

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.

The Fair Sentencing Act was eventually replaced by Structured Sentencing for offenses committed on or after October 1, 1994. Parole was abolished prospectively for Structured Sentencing offenders. G.S. 90-95 has been amended many times since 1984. Anyone applying credit and parole rules to a current sentence should look at the version of the law in effect at the time of the offense; for offenses today, the controlling regime is Structured Sentencing under Article 81B of Chapter 15A.

Common questions

Q: Why were there two versions of G.S. 90-95?
A: The General Assembly passed the Fair Sentencing Act in 1979 with a delayed effective date. The drug trafficking statute was passed in 1980. To keep the trafficking statute in sync with whichever sentencing regime was in force, the General Assembly enacted two versions: one for the period before the Fair Sentencing Act took effect (July 1, 1980 to June 30, 1981) and one for after.

Q: What is the difference between good time and gained time?
A: Good time was a deduction from the inmate's sentence for compliance with prison rules. Gained time was an additional deduction for participation in approved work or programming. Both reduced both the maximum sentence and the parole eligibility date for non-Fair Sentence prisoners.

Q: Why did Fair Sentencing eliminate parole?
A: Fair Sentencing was a truth-in-sentencing reform. The judge would set a presumptive sentence based on the offense and prior record, and the defendant would serve that sentence (with limited good time deductions) rather than be released early on parole at the parole board's discretion.

Q: What was substantial assistance under (h)(6)?
A: A defendant who provided "substantial assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals" could ask the sentencing judge to depart from the statutory minimum. The judge had to make a finding in the record that the assistance was substantial. The departure could be a reduced fine, a sentence below the minimum, or a suspended sentence with probation.

Q: Why couldn't the judge just suspend the sentence for cooperators?
A: For first-version drug trafficking defendants who were committed youthful offenders, the judge could not suspend or impose probation, even with substantial assistance. The (h)(6) language carved out a narrower form of relief.

Q: What is State v. Crabtree?
A: A 1984 NC Court of Appeals decision (filed 21 February 1984) that noted the structural difference between the two versions: the second version omitted the (h)(5) parole-eligibility-after-minimum language because Fair Sentencing prisoners weren't parole-eligible at all. Crabtree helped the AG read (h)(5) as a parole-restriction provision rather than a good-time-and-gained-time provision.

Q: Did this opinion affect anyone who was actually serving time?
A: Yes. The first-version drug trafficking sentences were unusually high. Without good time and gained time, prisoners would serve every day of the statutory minimum. With the AG's reading, they could earn their way out earlier. The Department of Correction needed the opinion to compute correct parole eligibility dates.

Background and statutory framework

In 1979, the General Assembly enacted "An Act to Establish a Fair Sentencing System in North Carolina Criminal Courts" (1979 Session Laws, ch. 760). The effective date was postponed several times and ultimately set at July 1, 1981.

In 1980, the General Assembly enacted "An Act to Control Trafficking in Certain Controlled Substances" (1979 Session Laws (2d Session), ch. 1251). This added the trafficking thresholds and mandatory minimum sentences to G.S. 90-95. To accommodate the Fair Sentencing Act transition, the General Assembly wrote two parallel versions of the trafficking provisions. The first version, effective July 1, 1980, would govern offenses through June 30, 1981. The second version, effective July 1, 1981 (when the Fair Sentencing Act became operative), replaced the first.

The AG's analytical key was that the drug trafficking statute did not speak to good time or gained time at all. Good time and gained time for non-Fair Sentence prisoners were governed by G.S. 148-13 (Secretary of Correction's authority to establish regulations) and G.S. 15A-1355(c) (effect on parole eligibility). The Secretary's regulations were at 5 NCAC 2B.0100. So the default rules from the general sentencing statutes governed unless the drug trafficking statute provided otherwise. (h)(5) made clear that the trafficking defendant had to serve the minimum before parole, but did not say good time and gained time could not reduce that minimum.

The AG also pointed to two affirmative legislative examples (G.S. 14-52 for burglary and G.S. 14-87 for armed robbery) where the General Assembly had explicitly denied good and gained time credits. Their absence from G.S. 90-95 was meaningful: had the General Assembly intended to deny credits for drug trafficking, it knew how to say so. The expressio unius reasoning sealed the AG's conclusion.

Citations

• N.C.G.S. § 90-95 (Drug Trafficking; both first and second versions of subsection (h))
• N.C.G.S. § 90-95(h)(5) (first version: parole eligibility tied to minimum sentence)
• N.C.G.S. § 90-95(h)(6) (substantial assistance departure, both versions)
• N.C.G.S. § 15A-1355(c) (good and gained time reduce parole eligibility)
• N.C.G.S. § 15A-1371 (parole eligibility generally)
• N.C.G.S. § 14-52 (burglary; explicitly denies good and gained time)
• N.C.G.S. § 14-87 (armed robbery; explicitly denies good and gained time)
• N.C.G.S. § 148-13 (Secretary of Correction's authority to regulate good and gained time)
• 5 NCAC 2B.0100 (DOC implementing regulations)
• State v. Crabtree, No. 8327SC474 (N.C. App. Feb. 21, 1984) (recognizing structural difference between first and second versions)
• 1979 Session Laws (2d Session), ch. 1251 ("An Act to Control Trafficking in Certain Controlled Substances")
• 1979 Session Laws, ch. 760 ("An Act to Establish a Fair Sentencing System in North Carolina Criminal Courts")

Source

• Landing page: https://ncdoj.gov/opinions/good-time-gained-time-parole-drug-trafficking/

Original opinion text

Requested By:

Ben G. Irons, II

Senior Administrative Assistant N.C. Department of Correction

Questions:

• Are defendants convicted of drug trafficking under the first version of G.S. 90-95 eligible for good time?
• Are such defendants sentenced under this statute eligible for parole?
• If any defendants sentenced under this statute are eligible for parole, how are applicable parole eligibility dates computed?
• Does the court's finding that a defendant cooperated with law enforcement authorities during their investigation (see G.S. 90-95(h)(6)) have any effect on parole eligibility dates?

Conclusion:

• Yes.
• Yes, but not until they have served the applicable minimum sentence less earned good or gained time.
• See answer to 2 above.
• Yes. A defendant who has cooperated may receive a lesser minimum sentence, which must be served before becoming eligible for parole, but this minimum may be reduced by earned good time and gained time.

The answer to the above questions requires a careful study of the two versions of G.S. 90-95. In 1980 the General Assembly enacted "An Act to Control Trafficking in Certain Controlled Substances." 1979 Session Laws (2d Session), ch. 1251. The year previous the legislature had enacted "An Act to Establish A Fair Sentencing System in North Carolina Criminal Courts." 1979 Session Laws, ch. 760. The effective date of ch. 760 was postponed several times and ultimately became effective July 1, 1981. Hence the General Assembly enacted two versions of G.S. 90-95. The first version was to provide for the period between July 1, 1980, and the date when "The Fair Sentence Act" was to be effective, at which time the second version was to replace the former statute. The two versions are parallel except that prisoners under the first version are eligible for parole; whereas Fair Sentence prisoner, sentenced under the second version are not. Because it does not appear that the General Assembly intended any substantive difference between the two versions other than to make the "Drug Trafficking Act" conform to the concepts of the "Fair Sentencing Act," it is necessary to consider both versions of G.S. 90-95 to respond to your inquiries.

As noted in State v. Crabtree, N.C. App., No. 8327SC474 (decided 21 February 1984), the second version of G.S. 90-95 does not contain the subsection (h)(5), which reads as follows:

Notwithstanding any other provision of law, except as provided in G.S. 90-95(h)(6), any person who has been convicted of a violation of this subsection shall serve the applicable minimum term provided by this subsection before either unconditional release or parole.

Subsection (h)(6) in the first version is indentical in the second version except for numbering and reads as follows:

A person sentenced under this subsection is not eligible for early release or early parole if the person is sentenced as a committed youthful offender and the sentencing judge may not suspend the sentence or place the person sentenced on probation. However, the sentencing judge may reduce the fine, or impose a prison term less than the applicable minimum prison term provided by this subsection, or suspend the prison term imposed and place a person on probation when such person has, to the best of his knowledge, provided substantial assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals if the sentencing judge enters in the record a finding that the person to be sentenced has rendered substantial assistance.

For convenience, we will use the numbering of the first version in making reference to the substantial quote immediately above.

G.S. 90-95(h)(6) makes no reference to good time or gain time. In the absence of a clear provision to the contrary, it must be presumed that the General Assembly intended prisoners sentenced under that subsection to receive good time and gained time. See G.S. 15A-1355(c) and G.S. 148-13(c) and (d). For this reason we are of the opinion that prisoners sentenced under the second version are entitled to earn good time and gained time. Unless G.S. 90-95(h)(5) imposes a different standard, prisoners sentenced under the first version would also be entitled to good time and gained time. We do not believe that subsection (h)(6) imposes a different standard. The purpose of that subsection is to restrict parole eligibility for prisoners who otherwise would be eligible for parole under G.S. 15A-1371. We believe that the General Assembly intended to eliminate the discretion of sentencing judges to impose any or even no minimum sentence and to require that judges impose sentences for conviction of drug trafficking not less than the minimum provided by the statute.

Neither version of G.S. 90-95 speaks of good time or gained time. The General Assembly has authorized the Secretary of Correction to establish regulations for the granting of good time and gained time for non-Fair Sentence prisoners, G.S. 148-13, and has provided that good time and gained time may reduce parole eligibility dates. 15A-1355(c). The Secretary has established regulations implementing the statutory authorization. 5 NCAC 2B.0100.

If it had intended to preclude defendants sentenced under the first version of G.S. 90-95 from eligibility for good time and gained time, the legislature would have dealt with the matter explicitly as it did in the statutes concerning burglary, G.S. 14-52, and armed robbery, G.S. 14-87. We do not believe that the General Assembly intended to provide by implication that prisoners convicted of drug trafficking offenses committed between July 1, 1980 and, June 30, 1981, should be denied good time and gained time, whereas prisoners who committed similar acts before July 1, 1980, or after June 30, 1981, would receive these benefits. Furthermore, we can see no other way to reconcile the various statutes pertaining to good time, gained time, and parole eligibility.

Thus we conclude that prisoners sentenced under the first version of G.S. 90-95 are entitled to good time and gained time under regulations established by the Secretary of Correction. Such prisoners are also eligible for parole, but not until they have served the statutory minimum sentence less good time and gained time credit. Sentencing judges may impose a lesser minimum sentence for prisoners who have provided substantial assistance in drug trafficking investigations, and this sentence may be reduced by good and gained time.

RUFUS L. EDMISTEN ATTORNEY GENERAL

James Peeler Smith Assistant Attorney General