During North Carolina's emergency prison-cap releases, which inmates can the Parole Commission grant parole to under the 1994 amendments to G.S. 148-4.1?

Plain-English summary

In 1994 the General Assembly, in an Extra Session, raised the statutory prison cap to 24,500 and rewrote the emergency-release mechanism. The amended G.S. 148-4.1(g1) gave the Parole Commission new authority. When prison population pressure forced release of inmates to stay within the cap, the Commission could parole "nonviolent inmates who would not otherwise be eligible for parole instead of paroling violent inmates who are eligible for parole." The General Counsel of the relevant agency asked the AG which inmates this expanded class included.

The AG focused on three pieces of statutory language. First, the opening phrase "notwithstanding any other provision of law" was as plain a statement of legislative override as one could write, citing State v. Williams construing similar language. The legislature meant the Commission could reach inmates ordinarily ineligible for parole. Second, the post-January-1-1995 version of the same subsection (replacing the spring 1994 version) carried a single express exception in subsection (h) for inmates sentenced under Article 81B of Chapter 15A, the Structured Sentencing Act. That single carve-out made the scope clear: everyone except Structured Sentencing inmates was reachable. Third, the statute used the adjective "nonviolent" to describe the prisoners themselves, not their crimes, which committed the determination to the Parole Commission's judgment.

The opinion gave the Commission practical guidance on how to evaluate "nonviolent." The Commission could consider the crime of conviction, the prison behavioral record, and any other criminal history not tied to the offense. The AG drew the analogy to State v. McDougall's discussion of whether a prior felony "not involving force or violence" could still be considered an aggravating factor when the felony's commission involved violence. The same expansive interpretive principle let the Commission look at the whole person, not just the crime label. The legislature's overriding concern was public safety, and a careful Commission was entitled to err on the side of caution.

The opinion closed with two important reminders. No prisoner had a right to parole or even a right to be considered for parole under this provision. And the subsection was not an across-the-board liberalization. It was an emergency tool, triggered only when the prison cap forced action, and it expanded only the Commission's eligible-class authority, not its substantive parole criteria.

Currency note

This opinion was issued in 1994. 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 sentencing and parole framework has been overhauled multiple times since 1994. Structured Sentencing has matured. The Parole Commission has been reorganized as the Post-Release Supervision and Parole Commission. The emergency-cap mechanism has been amended. Anyone working on a current parole eligibility question should pull the current Chapter 148 and Chapter 15A provisions and recent case law.

Common questions

Q: Did this opinion expand parole eligibility for any specific class of inmates?
A: The AG said the 1994 amendment expanded the Commission's authority to consider nonviolent inmates who, under their original sentences, would not normally have been parole-eligible. Structured Sentencing inmates remained outside the expansion.

Q: Who decided whether a particular inmate was 'nonviolent'?
A: The Parole Commission, exercising broad discretion. It could look at the conviction offense, prison conduct, and any other criminal history. The AG explicitly endorsed cautious, person-specific judgment.

Q: Did the emergency provision give any inmate a right to release?
A: No. The AG emphasized the statute conferred no right to parole or even to consideration. It enlarged Commission authority; it did not create individual entitlement.

Q: Why did Structured Sentencing inmates fall outside the expansion?
A: Subsection (h) of G.S. 148-4.1 specifically exempted Article 81B sentences from the emergency parole provisions. Structured Sentencing was designed as a no-parole determinate framework, and the legislature preserved that design even under emergency pressure.

Background and statutory framework

Three legal pieces locked the analysis together:

• The 1994 Extra Session amendment. Chapter 15 of the Session Laws of the 1994 Extra Session raised the prison cap to 24,500 and rewrote G.S. 148-4.1(g1). The original (1994) text and the January 1, 1995 replacement text both used the "notwithstanding any other provision of law" phrasing, signaling override of all other parole-eligibility statutes.
• Subsection (h) exception. The January 1995 replacement carried a single express limit: the subsection did not apply to sentences under Article 81B of Chapter 15A. That preserved the no-parole nature of Structured Sentencing.
• Definitional question on 'nonviolent.' The statute used the adjective without a statutory definition. The AG read the term to describe prisoners, not offenses, and concluded the Parole Commission could exercise broad discretion in classifying.

The interpretive backstop was State v. Williams, 74 N.C. App. 728 (1985), which had held that "notwithstanding any other provision of law" in G.S. 14-87(d) had to be accepted at face value as a complete override unless application would conflict with constitutional or federal-act authority. The AG transplanted that holding to G.S. 148-4.1(g1).

The discretion guidance leaned on State v. McDougall, 308 N.C. 1 (1983), which held that the word "involving" in an aggravating-factor statute allowed the jury to consider any felony whose commission involved the use or threat of violence, not just felonies in which violence was a statutory element. By analogy, the Parole Commission could look behind the offense label to the actual circumstances of the crime, the inmate's record while incarcerated, and unrelated criminal history.

Citations

• N.C.G.S. § 148-4.1 (prison cap and emergency release)
• N.C.G.S. § 148-4.1(g1) (Parole Commission emergency authority; both 1994 and post-1995 versions)
• N.C.G.S. § 148-4.1(h) (Article 81B Structured Sentencing exception)
• N.C.G.S. § 14-87(d) ("notwithstanding any other provision of law" precedent)
• N.C. Gen. Stat. ch. 15A, art. 81B (Structured Sentencing Act)
• Chapter 15, 1994 Extra Session Session Laws (the amendment)
• State v. Williams, 74 N.C. App. 728, 329 S.E.2d 709 (1985) (override-phrase precedent)
• State v. McDougall, 308 N.C. 1, 301 S.E.2d 308 (1983) (looking behind offense label to actual conduct)

Source

• Landing page: https://ncdoj.gov/opinions/prisoners-subject-to-parole-during-emergency-release-periods/

Original opinion text

TO: LaVee Hamer, General Counsel

FROM: William N. Farrell, Jr., Senior Deputy Attorney General
James Peeler Smith, Special Deputy Attorney General

DATE: 13 April 1994

SUBJECT: Advisory Opinion: Interpretation of N.C.G.S. § 148-4.1 as amended by the 1994 Extra Session

Your question is which prisoners are subject to parole under N.C.G.S. § 148-4.1(g1) during emergency release periods when the Parole Commission is required to grant parole to prisoners in order to meet the prison cap. Applying the rules of statutory construction, we conclude that the General Assembly has explicitly allowed the parole of all nonviolent prisoners except for those who will be sentenced under Structured Sentencing, during emergency release periods.

Chapter 15 of the Session Laws of the 1994 Extra Session amends N.C.G.S. § 148-4.1 to authorize the Governor to raise the prison cap to 24,500. The act further amends N.C.G.S. § 148-4.1 as follows:

(g1) Notwithstanding any other provision of law, whenever the Parole Commission is required to release inmates in order to meet the requirements of this section, the Parole Commission may parole nonviolent inmates who would not otherwise be eligible for parole instead of paroling violent inmates who are eligible for parole. (Emphasis added.)

The above-referenced provision expires and will be replaced with a new provision, effective 1 January 1995 which reads as follows:

(g1) Notwithstanding any other provision of law except for subsection (h) of this section, whenever the Post-Release Supervision and Parole Commission is required to release inmates in order to meet the requirements of this section, the Post Release Supervision and Parole Commission may parole nonviolent inmates who would not otherwise be eligible for parole instead of paroling violent inmates who are eligible for parole. This subsection does not apply to sentences under Article 81B of Chapter 15A of the General Statutes. (Emphasis added.)

Subsection (h) exempts from the emergency parole provisions prisoners sentenced under Article 81B of Chapter 15A (Structured Sentencing).

The use of the phrase, "notwithstanding any other provision of law" clearly indicates that the General Assembly intended to make all nonviolent prisoners, regardless of what provision they may have been sentenced under, eligible for parole during emergency release periods. "Notwithstanding any other provision of law" is as plain a statement of intent as one can make. Such language must be accepted at face value and there is no further room for construction (unless application of the plain language would be contrary to higher authority, e.g. the State or federal constitution or act of Congress). See State v. Williams, 74 N.C. App. 728, 729, 329 S.E. 2d 709 (1985), construing similar language in N.C.G.S. § 14-87(d).

The question is then: who are nonviolent prisoners? "Nonviolent" is an adjective describing the prisoners themselves and not the crimes for which they are incarcerated. The statute, however, gives the Parole Commission broad discretion in determining whether the prisoner is "nonviolent" and the Commission may exercise great caution in deciding to parole a prisoner under this provision. We believe the Commission may take into account the crime for which the prisoner was committed, prison behavioral record, and criminal history not related to the crime. The legislature's primary concern was for the safety of the general public. Thus, the Commission may consider any pertinent information that would be useful in deciding whether the prisoner is in fact nonviolent.

Useful guidance for the Parole Commission is our Supreme Court's discussion of whether a prior felony not involving force or violence may be considered by a jury as an aggravating factor in a capital case. State v. McDougall, 308 N.C. 1, 18, 301 S.E.2d 308, cert. denied 464 U.S. 865 (1983).

…The statute does not state that the jury may only consider as an aggravating circumstance those felonies in which the use or threat of violence to the person is an element of the offense. The statute contains the word "involving," which indicates an interpretation much more expansive than one restricting the jury to consider only felonies having the use or threat of violence to the person as an element. Crimes that do not have violence as an element may be committed by the use or threat of violence. By using "involving" instead of language delimiting consideration to the narrow class of felonies in which violence is an element of the offense, we find the legislature intended the prior felony…to include any felony whose commission involved the use or threat of violence to the person.

The Parole Commission has similar but broader discretion in deciding whether the prisoner is nonviolent. The Commission may consider not only the crime or crimes for which the prisoner has been convicted but also any information it has available in making its decision. It should be pointed out that the statute gives no prisoner a right to parole or to be considered for parole. The statute merely expands the Commission's authority in granting paroles during emergency release periods to consider a new class of prisoners–all nonviolent prisoners not sentenced under Structured Sentencing.