Under G.S. 148-4.1(c) and the 1983 Acceleration Act, when the Secretary of Correction directs parole acceleration, does the Parole Commission have to release every Fair Sentence inmate within the eligibility window, or can it choose which inmates to release?
Plain-English summary
In 1983 the NC General Assembly enacted Chapter 557, "An Act to Accelerate the Parole of Certain Inmates When Necessary for Effective Prison Management." The preamble noted: "no specific legislative authority exists for early release of inmates when necessary for the effective management and administration of the State's prison system." The Act gave that authority by enacting G.S. 148-4.1, "Release of Inmates."
The mechanism worked in two steps:
Step 1: The Secretary of Correction triggers acceleration. Under G.S. 148-4.1(a), "Whenever the Secretary of Correction determines from data compiled by the Department of Correction that it is necessary to reduce the prison population to a more manageable level, he shall direct the Parole Commission to release on parole, over a reasonable period of time a number of prisoners sufficient to that purpose."
Step 2: The Parole Commission chooses who to release. Under G.S. 148-4.1(c), "Persons eligible for parole under Article 85A of Chapter 15A shall be eligible for early parole under this section six months prior to the discharge date otherwise applicable, and three months prior to the date of automatic 90 day parole authorized by G.S. 15A-1380.2."
The Parole Commission asked the AG whether (c) gave individual inmates within the eligibility window a right to be paroled, or whether the Commission had discretion to choose which inmates to release. The answer mattered because the Fair Sentencing Act had eliminated parole in the usual sense for most felony inmates. The only general analog to parole for fair-sentence inmates was the 90-day automatic re-entry parole under G.S. 15A-1380.2, which is a vested right.
Special Deputy Attorney General Jacob L. Safron concluded:
No vested right under (c). The automatic 90-day re-entry parole under G.S. 15A-1380.2(a) is a right. The additional three months made eligible by G.S. 148-4.1(c) is not. The (c) provision merely defines who is in the eligibility pool when the Secretary triggers acceleration.
Commission has unfettered discretion. The Secretary's direction under (a) is to release "a number of prisoners," not "all eligible prisoners." That phrasing necessarily implies the Commission can choose which from the larger eligible pool to actually release in order to hit the target number. The Commission also is not authorized to release more than the number specified by the Secretary.
Practical effect. The acceleration mechanism gave the Department of Correction a controlled population valve. When prison crowding made management difficult, the Secretary could direct a release of, for example, 200 inmates. The Parole Commission would look at all the inmates within three months of their automatic 90-day re-entry parole date and pick 200 to release. Inmates outside that window were not eligible. Inmates inside the window had a shot at early release but no guarantee.
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 replaced by Structured Sentencing for offenses committed on or after October 1, 1994. Structured Sentencing largely abolished parole and the automatic 90-day re-entry parole for offenses under it. The Parole Commission's modern role is much narrower. The acceleration framework under G.S. 148-4.1 has been amended several times. Anyone applying current sentencing or parole law should consult current law, not this 1984 framework.
Common questions
Q: Why did the General Assembly need to write a special acceleration statute?
A: Because the Fair Sentencing Act had eliminated traditional parole for most felony inmates. When prisons got crowded, the old tool (parole release) was no longer available. The 1983 Act created a narrow, targeted alternative: when the Secretary of Correction certified that crowding required relief, the Parole Commission could release inmates close to their automatic re-entry parole date a little earlier.
Q: What is "automatic 90-day re-entry parole"?
A: Under the Fair Sentencing Act (G.S. 15A-1380.2(a)), each prisoner serving 18 months or more for a felony was released on parole 90 days before the expiration of his term, less credits. This release was automatic; it did not depend on Parole Commission discretion. It was designed to give inmates a structured transition back to the community.
Q: How much earlier could the acceleration push the release?
A: Up to three months earlier than the automatic 90-day date, so up to six months total before the discharge date. So an inmate scheduled for automatic re-entry parole on January 1 could be released as early as October 1 if the Secretary triggered acceleration and the Parole Commission picked that inmate.
Q: What did "unfettered discretion" mean for the Commission's choice?
A: The opinion did not lay out specific criteria. The Commission could presumably consider any factor (institutional record, nature of offense, time until automatic re-entry, individual circumstances) in choosing whom to release. The opinion's point was that the Commission was not legally required to release every eligible inmate or to use any particular methodology.
Q: Did the inmates have any due-process rights?
A: The opinion did not address due process directly. Standard parole-eligibility cases generally hold that an inmate has no liberty interest in early release unless the statute creates one through mandatory language. The opinion's reading of G.S. 148-4.1(c) as creating only eligibility (not entitlement) suggests no liberty interest attached to the discretionary choice.
Q: Could the Secretary order a large release that exceeded the eligibility pool?
A: No. The opinion explained that the Commission "is not authorized to release more than the number specified by the Secretary," but if the number specified exceeded the pool of inmates within the three-month acceleration window, the Commission could only release the people in the pool. The Secretary could not direct more releases than the eligibility framework permitted.
Q: Did this opinion get challenged?
A: The opinion does not record any litigation history. Inmates who were not selected for acceleration would have had standing to challenge if (c) had created a vested right; the AG's reading of (c) as merely defining eligibility likely insulated the Commission's discretionary choices from due-process attack.
Background and statutory framework
NC moved to the Fair Sentencing Act for offenses committed on or after July 1, 1981. Fair Sentencing was a structured-presumptive-range system that eliminated traditional parole for most felonies. The automatic 90-day re-entry parole under G.S. 15A-1380.2(a) was a transition-back-to-community mechanism, not a discretionary parole.
Prison populations grew through the early 1980s, partly as a consequence of Fair Sentencing's longer effective sentences. By 1983, NC was running out of bed space. The 1983 General Assembly enacted Chapter 557 to give the Department of Correction a population-management tool that would not require a full restoration of traditional parole.
The mechanism was deliberately narrow. Only inmates within three months of their automatic re-entry parole date were eligible. Only the Secretary could trigger acceleration. Only the Commission could pick who to release. The number released was capped by what the Secretary said was necessary.
The AG's reading of (c) as eligibility-only rather than vested-right tracks the statute's structural division between (a) (Secretary's trigger) and (c) (Commission's eligibility pool). Reading (c) to require automatic release of all eligible inmates would have collapsed the two-step mechanism into a one-step automatic release whenever the Secretary triggered, which would have prevented the Commission from limiting releases to the Secretary's specified number.
Citations
- N.C.G.S. § 148-4.1 (Release of Inmates; acceleration framework)
- N.C.G.S. § 148-4.1(a) (Secretary's direction triggers parole acceleration)
- N.C.G.S. § 148-4.1(c) (eligibility window for acceleration parole)
- N.C.G.S. § 148-13 (Secretary's authority over good time and gained time)
- N.C.G.S. § 15A Art. 85A (parole framework)
- N.C.G.S. § 15A-1340.7 (good behavior credit)
- N.C.G.S. § 15A-1380.2 (Re-Entry Parole of Felons; automatic 90-day release)
- N.C.G.S. § 15A-1380.2(a) (vested right to 90-day re-entry parole)
- N.C.G.S. § 15 Art. 19A (credit for time served)
- 1983 N.C. Sess. Laws ch. 557 ("An Act to Accelerate the Parole of Certain Inmates When Necessary for Effective Prison Management")
Source
Original opinion text
Question:
Does the Parole Commission have the authority to select fair sentence inmates to be parole pursuant to G.S. § 148-4.1(c)?
Conclusion:
Yes.
The 1983 Session of the General Assembly passed Chapter 557, An Act to Accelerate the Parole of Certain Inmates When Necessary for Effective Prison Management, which became effective July 1, 1983. The preamble to Chapter 557, in reviewing the current and proposed inmate populations, notes that "no specific legislative authority exists for early release of inmates when necessary for the effective management and administration of the State's prison system . . ." and provides such authority in Chapter 557. G.S. § 148-4.1, Release of Inmates, specifically provides that:
(a) Whenever the Secretary of Correction determines from data compiled by the Department of Correction that it is necessary to reduce the prison population to a more manageable level, he shall direct the Parole Commission to release on parole, over a reasonable period of time a number of prisoners sufficient to that purpose.
(c) Persons eligible for parole under Article 85A of Chapter 15A shall be eligible for early parole under this section six months prior to the discharge date otherwise applicable, and three months prior to the date of automatic 90 day parole authorized by G.S. 15A-1380.2.
Except for Committed Youthful Offenders and Class A, B and C felons sentenced to life imprisonment, parole, in the usual sense, was eliminated by the Fair Sentencing Act. The only provision of general application to all fair sentence inmates analogous to parole is contained in G.S. § 15A-1380.2, Re-Entry Parole of Felons, which provides in subsection (a) that:
The Parole Commission shall parole each prisoner serving a prison or jail terms of 18 months or more for a felony 90 days before the expiration of his term, less credit for time already served as provided by Article 19A of Chapter 15 of the General Statutes, credit for good behavior as required by G.S. 15A-1340.7, and additional gain time credit that he may receive pursuant to the regulations of the Secretary of Correction issued under G.S. 148-13.
A comparison of these various provisions reveal that the import of G.S. § 148-4.1(c) is to authorize an additional three months in addition to the automatic 90 day re-entry parole. However, although G.S. § 15A-1380.2(a) vests a right to 90 days re-entry parole, no such right is vested by G.S. § 148-4.1(c) and the Parole Commission has been delegated unrestricted discretion in choosing those inmates whom it would favor with early parole in order to reduce the prison population by that number of inmates determined by the Secretary of Correction required to reduce the prison population to a more manageable level.
Pursuant to G.S. 148-4.1(a), the Secretary of Correction is only authorized to direct the Parole Commission to release "a number of prisoners." This would indicate that the Commission is not authorized to release more than the number specified by the Secretary. If G.S. § 148-4.1(c) were read to require automatic early parole of all fair sentence inmates who are within the eligibility pool (i.e., those within three months of the automatic ninety day re-entry parole), then the Parole Commission would be unable to limit the number of parolees to the number of prisoners specified by the Secretary.
In view of the foregoing, it is the opinion of this office that no rights are vested in the eligible inmate population when the Secretary of Correction calls for the implementation of the authority granted to him by G.S. § 148-4.1 and that the Parole Commission, in carrying out its responsibility to implement the Secretary's directive, has unfettered discretion in its choice of otherwise eligible inmates to be included in the pool of inmates being released in order to reduce the prison population.
RUFUS L. EDMISTEN ATTORNEY GENERAL
Jacob L. Safron Special Deputy Attorney General