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

The Attorney General was asked whether the Parole Commission could choose which fair-sentence inmates to release under G.S. 148-4.1(c). The opinion answered yes. When the Secretary of Correction determines that reducing the prison population is necessary, subsection (a) directs the Commission to release “a number of prisoners” over a reasonable period. Subsection (c) defines when inmates become eligible for accelerated parole.

The opinion distinguishes two rules. Under G.S. 15A-1380.2(a), qualifying prisoners had a right to automatic 90-day re-entry parole. G.S. 148-4.1(c) authorized eligibility for early parole three months before that automatic date, but did not give each eligible inmate a right to be chosen. The Attorney General says the Commission had “unfettered discretion” to select otherwise eligible inmates for the number the Secretary specified.

The opinion also says the Commission is not authorized to release more than the number specified by the Secretary. It does not decide whether the Secretary could specify a number larger than the eligible population or what should happen if that occurred. Those were not the question presented.

Currency note

This opinion interprets the parole provisions quoted in 1984. Check the law governing the sentence at issue before applying its eligibility rule to a person today.

Background and statutory framework

Chapter 557 of the 1983 Session Laws enacted G.S. 148-4.1. The opinion quotes subsection (a), which lets the Secretary direct a release when Department data show a need to reduce the prison population to a more manageable level. It quotes subsection (c), which makes eligible persons eligible for early parole six months before the otherwise applicable discharge date and three months before automatic 90-day parole.

The Attorney General reasoned that if every eligible inmate had to be released automatically, the Commission could not limit releases to the number specified by the Secretary. Thus subsection (c) creates eligibility, while the Commission selects among eligible inmates when implementing the Secretary's direction. The opinion provides no selection criteria or rule about the maximum number the Secretary may specify.

Common questions

Q: Does eligibility under G.S. 148-4.1(c) guarantee early parole?
A: No. The opinion says no individual right vests under that subsection, and the Commission has discretion to choose among otherwise eligible inmates.

Q: What was the difference from automatic 90-day re-entry parole?
A: The opinion says G.S. 15A-1380.2(a) vested a right to 90-day re-entry parole for qualifying prisoners. It says the extra three months of eligibility under G.S. 148-4.1(c) did not vest the same right.

Q: Could the Commission release more inmates than the Secretary specified?
A: The opinion says no. It reads the Secretary's direction to release “a number of prisoners” as a cap on the Commission's releases under that direction.

Q: Did the opinion cap the number the Secretary could direct?
A: It did not address that. The quoted limitation concerns what the Commission may release after the Secretary specifies a number; it does not set a rule for the Secretary's number relative to the eligible pool.

Q: Did the opinion list criteria for choosing among eligible inmates?
A: No. It describes the Commission's choice as unfettered discretion and does not identify specific factors to use.

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-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)
• 1983 N.C. Sess. Laws ch. 557 ("An Act to Accelerate the Parole of Certain Inmates When Necessary for Effective Prison Management")

Source

• Landing page: https://ncdoj.gov/opinions/re-entry-parole-fair-sentencing-acceleration-of-parole/

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