The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

ACCESS

Apprendi v. New Jersey:
Constitutional Requirements for “Enhanced” Sentences
By Senior Attorney J. Phillip Griffin

It is difficult to predict what issues
will become important as the courts
deal with new kinds of cases.
Some legislatures have passed laws
to limit the disparities in sentencing
that appear when individual judges
have a lot of discretion in setting
sentences. Some statutes, such as
the federal sentencing guidelines,
list various factors and prescribe
a sentence based
upon which of those
factors are present
in a given case. In
other kinds of statutes, the legislature
has decided that
it wants to punish
certain crimes more
severely, such as
crimes committed with a racial
motive or committed with a firearm. Both kinds of
statutes can require the judge to
base the sentence on factors shown
to be present by a preponderance
of the evidence. Over the last few
Supreme Court terms, sentences
based upon factors found by the
judge have come into question.
Jones v. United States, 526 U.S.
227 (1999), involved a provision of
the federal car-jacking statute that
increased the maximum sentence
from 15 to 25 years if a serious
injury resulted from the crime.
When the defendant was arraigned,
he was advised that the maximum

sentence was 15 years. After the
jury found him guilty, the judge
found that his victim was seriously
injured and sentenced him to 25
years. The Supreme Court held
that this procedure violated the
Fifth and Sixth Amendment rights
to notice of the charges and to trial
by jury. The Court held that every
fact that increases a sentence for a

based upon a provision of New
Jersey law that increases the maximum sentence if a crime is motivated by racism. The trial court
found that the defendant shot at the
house to frighten his neighbors because of their race, and imposed an
enhanced sentence. The Supreme
Court held that the Due Process
Clause of the Fourteenth Amendment imposed upon the
states the same requirements of notice and
jury trial that applied to
the federal government.
Those requirements
were announced in
Jones. Since the racial
motive for the crime
was not proven to a
jury and not admitted in
the guilty plea, it could
not serve as a basis for
an enhanced sentence.

crime, other than prior convictions,
must be treated as an element of the
(Continued on page 2)
crime, alleged in the indictment,
and proven to the jury beyond a
In this Issue:
reasonable doubt.
In the following term, a state prosecution raised the same issues. In
Apprendi v. New Jersey, 530 U.S.
466 (2000), the defendant had fired
shots into a house and was charged
with possession of a firearm for an
unlawful purpose. The charged
crime had a maximum sentence
of ten years. After the entry of a
guilty plea, the prosecution asked
for an enhancement of the sentence

Apperndi v. New Jersey:
Constitutional Requirements for
“Enhanced” Sentences
Update: State v. Hearsh IMPACT Credit
A Report on NCPLS Activities:
2000-2002
Update: The Unauthorized Practice
of Law
Limits on Consecutive Sentences
for Misdemeanors
The Due Process Clause in the
Prison Context - A Brief Overview
NCPLS Hosts Representatives
of FAMM

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NCPLS ACCESS

Page 2

ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board of
Directors who are designated by various
organizations and institutions, including
the North Carolina Bar Association, the
North Carolina Association of Black
Lawyers, the North Carolina Association of Women Attorneys, and law
school deans at UNC, Duke, NCCU,
Wake Forest and Campbell.
NCPLS serves a population of more
than 33,500 prisoners and 14,000 pretrial detainees, providing information
and advice concerning legal rights and
responsibilities, discouraging frivolous
litigation, working toward administrative resolutions of legitimate problems,
and providing representation in all State
and federal courts to ensure humane
conditions of confinement and to challenge illegal convictions and sentences.
Board of Directors
President, Gary Presnell
Senator Frank W. Ballance, Jr.
Jim Blackburn
James A. Crouch, Esq.
Professor Adrienne Fox
Paul M. Green, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.P.A.
Fred Williams, Esq.
Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA
ACCESS is published four (4) times
a year. Articles, ideas and suggestions
are welcome: tsanders@ncpls.org

Volume II, Issue 4, December 2002

Apprendi v. New Jersey (Continued)
(Continued from page 1)

Since the decisions in Jones and
Apprendi, various provisions of the
federal sentencing guidelines have
come under attack. In particular,
the quantity of drugs involved in
an offense, if in dispute, cannot be
the basis for an enhanced sentence
unless it was alleged in the indictment and found beyond a reasonable doubt by the jury. United
States v. Cotton, 535 U.S. 625
(2002).
However, the implications for
state laws are more complicated,
partly because the Supreme Court
has never held that state criminal
prosecutions require an indictment at all. Hurtado v. California,
110 U.S. 516 (1884) (the Supreme
Court refused to require that states
initiate criminal prosecution by
grand jury indictment). For example, some crimes in North Carolina
are charged in “short form” indictments, which do not include all the
elements of the crime. The North
Carolina courts have refused to
apply Apprendi’s requirement that
the elements of the crime must be
included in the indictment. See
State v. Braxton, 352 N.C. 158,
174-175 (2001) (upholding the
short form murder indictment);
State v. Love, ___ N.C. App. ___
(September 3, 2002) (upholding the
short form sexual offense indictment).
Thus far, the federal courts have
not applied Apprendi to invalidate
a conviction based upon a “short
form” indictment, partly based
upon the authority of Hurtado.

However, the North Carolina Supreme Court has applied the rule in
Apprendi to require indictment and
jury conviction before the application of the firearm enhancement
penalty. State v. Lucas, 353 N.C.
568 (2001). N.C. Gen. Stat. §15A1340.16A purports to authorize a
sentencing judge to add 60 months
to the minimum term of imprisonment if the defendant is convicted
of a Class A, B1, B2, C, D, or E
felony in which he used a firearm.
In State v. Lucas, 353 N.C. 568,
598, the court ruled that “in every
instance where the state seeks an
enhanced sentence pursuant to
N.C. Gen. Stat. §15A-1340.16A,
it must allege the statutory factors
supporting the enhancement in the
indictment, which may be the same
indictment that charges the underlying offense, and submit those
factors to the jury.” The North Carolina Court stated it would limit the
effect of its ruling to cases which
were not yet final at the time (June
20, 2001). Of course, the ruling in
Apprendi would be applicable to
the unconstitutional application of
the firearm enhancement from its
own date, a year earlier.
Obviously, the federal and state
courts both have a long way to go
before the full implications of the
decisions in Jones, Apprendi, and
Lucas are spelled out. This report
provides only general information. If you have a question about
the validity of your own sentence,
let us know and we can provide
an individual application of these
principles to your case.

Volume II, Issue 4, December 2002

NCPLS ACCESS

Page 3

UPDATE: STATE V. HEARST - IMPACT CREDIT
By Managing Attorney Kari L. Hamel

This is to update you about a case
we reported in the September
2002 issue of ACCESS. As you may
recall, the North Carolina Supreme
Court recently ruled that anyone
who spent time in the Intensive
Motivational Program of Alternative Correctional Treatment
(IMPACT) while
on probation
is entitled to
receive credit
against their
active sentence.
State v. Hearst,
356 N.C. 132,
567 S.E. 2d
124, 2002 N.C.
LEXIS 679
(August, 2002).
Many DOC
inmates have
already benefited from the
Hearst decision. NCPLS
has successfully
advocated that
IMPACT credit
be awarded to
reduce activated
sentences for
many of our clients in Superior
Courts throughout North Carolina. Since the
Hearst decision, NCPLS has been
able to help almost 100 individuals obtain orders providing credit
against their active sentences.
Inmates entitled to such credit generally serve relatively short terms
of incarceration. Consequently,

NCPLS legal staff has had to work
quickly to contact those with the
earliest projected release dates,
investigate each persons= particular situation to determine whether
there is a meritorious legal claim,
and then approach the Superior

Courts seeking an Order providing credit. During our investigations, NCPLS also discovered that
some inmates who are entitled to
IMPACT credit were also entitled
to additional jail credit under N.C.
Gen. Stat. §15-196.1.
Our efforts have been helped by
hearing directly from individuals

who are incarcerated, as well as the
Department of Correction, which
provided us a list of IMPACT
participants. However, people
who entered the DOC after August
2002, and went to IMPACT as part
of the terms of their probation are
not listed.
IMPACT
operations
closed in July
2002. We
know that
more than
900 people
participated
in IMPACT
annually, but
many of those
individuals
are still on
probation.
IMPACT
credit for
those individuals will only
become an
issue if their
probationary
sentences are
revoked. We
will learn
about people
in that situation only if
they contact
us.
If you participated in the IMPACT
program as part of the terms of
your probation and you believe
you were not provided credit for
that time against your activated
sentence, you should write to us at:
NCPLS, P.O. Box 25397, Raleigh,
NC 27611.

NCPLS ACCESS

Page 4

Volume II, Issue 4, December 2002

A REPORT ON NCPLS ACTIVITIES: 2000-2002
In preparation for negotiations to
renew the contract with the Department of Correction, NCPLS has
reviewed program activities for the
period of October 1, 2000 through
September 30, 2002. This article
reports on highlights of that period.
During this period, the inmate
population increased by 7.9%,
from about 31,500, to over 34,000.
Inmate requests for legal assistance increased by about 17% over
calendar year 2000. In 1999, we
received 9,146 requests for legal
assistance; this year, we project
that we will receive approximately
11,300 requests. In doing this
work, we expended more than
75,000 hours. The contract called
for 43,467 attorney hours; more
than 48,867 hours were actually
spent, about 12% more than the
allocated number. Paralegal hours
allocated under the contract totaled
21,733; more than 26,907 hours
were billed, exceeding the contract
requirement by almost 24%. In
addition, NCPLS has a dynamic
program for legal interns through
which we employ an average of
six law students per year to assist
in our work. Through the Intern
Program, we contributed more than
3,800 hours of legal assistance
to inmates. Although law clerks
are generally compensated in the
market at rates comparable to those
paid paralegals, the contract provides no compensation for any of
that time.
NCPLS staff continues to learn,
grow and improve their skills. Our
attorneys participate in dozens of
training events on an annual basis

(both as students and teachers).
Our paralegals have made tremendous strides in professional development. Eight have been accredited
by the National Association of
Legal Assistants (NALA) as Certified Legal Assistants; two have
gained further NALA recognition
as specialists -- one has specialty
certification in civil litigation, and
the other has achieved specialty
certification in both civil litigation
and criminal law and procedure.
All of the remaining paralegals are
nearing completion of the course
work necessary to take the twoday examination. Certification
provides objective assurance that
the recipient has a command of
fundamental legal principles and a
mastery of basic paralegal skills.
In litigation, literally hundreds of
inmates have been represented by
NCPLS attorneys. We have reported in detail on some of that litigation in previous issues of ACCESS.
Significant victories include: Thebaud v. Jarvis, 5:97-CT-463-BO(3)
(E.D.N.C. 1997) (class action to
improve health care for women);
State of North Carolina v. William
Anthony Hearst, No. 684PA01
(N.C., filed Aug. 16, 2002) (class
action to require sentence reduction
credit for time spent in IMPACT);
Hamilton, et al. v. Theodis Beck,
et al., COA00-1470 (NCCt.App.
2002) (class action that reversed
a DOC practice and required that
sentences be entered by Combined
Records as specifically stated on
a judgment and commitment);
Bates v. Jackson, 5:98-HC-915BR(2) (October 19, 2000), Fields v.
Chavis, 5:00-HC-9-BR(3) (January

29, 2001) and Milligan v. McDade,
5:00-HC-8-H (February 15, 2001)
(individual habeas corpus actions
brought in federal court for the
Eastern District of North Carolina
finding violations of the Double
Jeopardy Clause, and resulting in
the immediate release of all three
clients); and In re: Bullis, 00-J-139
(October 3, 2001) (gaining and
enforcing client’s right of visitation
with minor child).
Pending litigation includes: Vereen,
et al. v. Beck, et al. (No. 01-CVS15053) (Wake Co. Superior Ct.,
Dec. 7, 2001) (class action seeking
declaration that inmates serving
Class C life sentences under Fair
Sentencing Act are entitled to have
sentence reduction credits toward
calculation of their parole eligibility date); and Harris v. Thompson Contractors, No. 122P002
(NCSCt) (NCPLS appears as a
friend of the court in a case involving the right of a work release
inmate to recover workers’ compensation for injuries suffered on
the job).
NCPLS staff members have been
involved in a host of other activities related to our mission. For
example, our Executive Director,
Michael Hamden, served two terms
on the American Correctional Association’s Standards Committee.
As a result, standards governing
operations at all kinds of accredited
correctional facilities now include
requirements that inmates have
access to reasonably priced telephone services, and that facilities
comply with the Americans with
(Continued on page 5)

NCPLS ACCESS

Volume II, Issue 4, December 2002

Page 5

ACTIVITIES 2000-2002 (CONTINUED)
(Continued from page 4)

Disabilities Act in all programs,
services, and activities. Hamden
is presently serving a second
four-year term as a member of the
Commission on Accreditation for
Corrections. He also serves as a
member of the Advisory Board
for the Women’s Prison Writing
Project, and as a consultant for the
protection of prisoners in research
projects at Research Triangle Institute.
Staff Attorney Ellie Kinnaird was
recently elected to a fourth term
in the State Senate, where she will
continue efforts to create the Prison
Nursery Project. The nursery
would provide intense pre-natal
services in health care, nutrition,
drug addiction treatment, personal
dysfunction therapy, and parenting
skills for pregnant, incarcerated
women. After the child is born,
the best available child care would
be provided through Early Head
Start and Smart Start. Mothers
would learn about how their infants
develop and how to interact appropriately with them. Mothers and
infants would bond in the healthiest environment possible. Mothers
would also be provided support
through instruction in important
parenting and life skills. Two years
of after-care, including the best
available child care and housing,
employment, education and addiction treatment, would be part of the
continuum of services.
Certified Legal Specialist Billy
Sanders serves as a Commissioner
on the North Carolina Sentencing
and Policy Advisory Commission.
As a Commissioner, Sanders has

been actively involved in refining
policies regarding criminal justice
and sentencing structure.
Senior Attorney Letitia C. Echols
is a member of the American Bar
Association’s Corrections and
Sentencing Committee, a body
that studies the justice system and
recommends reform. This year, the
Committee has worked to develop
a recommendation on sentence
reduction in “extraordinary and
compelling” circumstances. If
approved by the Criminal Justice
Section Council at its November
16 meeting, the recommendation

will be considered by the ABA’s
Board of Governors for adoption
as official policy. The Corrections
and Sentencing Committee has also
been working across the country to
reinstate the right of former felons
to vote.
Senior Attorney Linda B. Weisel
serves as a member of the Carolina
Justice Policy Center’s Board of
Directors. The Center is a well
regarded “think tank” that has
successfully advocated the use of
community punishment as an alternative to incarceration.
(Continued on page 10)

Page 6

NCPLS ACCESS

Volume II, Issue 4, December 2002

Update: The Unauthorized Practice of Law
By Managing Attorney James W. Carter

NCPLS continues to receive requests for information about certain
individuals and organizations
offering legal services to inmates
and their families. Generally,
these questions concern whether a
particular service provider is legitimate. Unfortunately, we usually
get these questions too late. Often,
money has already been paid, but
the promised service has not been
delivered. Once a person is in this
position, recovering a loss can be
a long trip down a road with few
promising results. If the person
to whom the money was paid
was running a scam, there is little
chance of recovering the money.
The best advice we can offer is to
use common sense and check out
the individual or organization offering the service. First, and foremost, if someone offers you a deal
to good to be true, proceed with
extreme caution. This is especially
true where there is a guarantee that
you will prevail. Whether you are
filing in a post-conviction matter,
a tort claim, or a civil rights suit,

there are few, if any, guarantees
that can be made to a client regarding the outcome of a case. This is
especially true where the person
making the guarantee has not thoroughly investigated all of the available facts or researched the law.
Secondly, know who you are dealing with. With few exceptions, it is
unlawful for any person or organization, except licensed members
of the North Carolina State Bar,
to practice law in North Carolina.
N.C. Gen. Stat. §84-4. Therefore,
any person who offers to represent
you, advise you of your rights,
or give you a legal opinion about
your rights should be a member of
the North Carolina State Bar and
should have a valid Bar number.
Ask the person or organization
who is offering the legal advice or
legal services for their Bar number.
If they refuse, they most likely
cannot deliver legal services.
Third, some individuals may
claim that they are working with
a licensed attorney. If that is the

case, get the attorney’s name and
address. Write the attorney and ask
for written verification of what you
have been told about the services
to be provided, the expected results
and the fees to be charged. If you
do not get a response, you may
have avoided losing your money.
If you believe someone is practicing law without a license, consider
contacting the Authorized Practice
Committee at the North Carolina
State Bar with all of the relevant
information that you have. You can
contact the Committee at:
North Carolina State Bar
Authorized Practice Committee
P.O. Box 25908
Raleigh, NC 27611-5908
Also, based on the number of
complaints we receive, we highly
recommend that you share this
information with your family and
friends and encourage them to be
on their guard.

Workers’ Compensation For Work Release Inmates?
The N.C. Supreme Court Will Decide
On October 16, 2002, NCPLS
Director Michael Hamden and
Senior Attorney Linda Weisel filed
an amicus brief in Harris v. Thompson Contractors and United States
Fidelity in the N.C. Supreme Court.
This case deals with the important
issue of an inmate=s eligibility for
workers= compensation if he is
injured on a work release job for a
private employer.

Following a favorable ruling for
the inmate before the Full Industrial Commission and the Court of
Appeals, the employer asked the
N.C. Supreme Court to review the
issue. The employer argued that
former inmate Harris was being
worked by the state when he was
injured on his work release job for
a private employer. Because of
the importance of this issue to our

clients on work release, NCPLS
consulted with Mr. Harris= attorney
and requested permission from
the N.C. Supreme Court to file a
“friend of the Court” brief.
NCPLS’s brief argued that inmates
on work release jobs are not being
worked by the state, but are working to further the business of the
(Continued on page 7)

Volume II, Issue 4, December 2002

NCPLS ACCESS

Page 7

LIMITS ON CONSECUTIVE SENTENCES
FOR MISDEMEANORS
by Staff Attorney Elizabeth Hambourger

As many inmates already know,
North Carolina law limits the
number of consecutive sentences
a defendant may receive when
convicted of misdemeanors. Many
inmates believe that they cannot
serve consecutive sentences for
more than two misdemeanors.
However, the law is more complicated than that.
N.C. Gen. Stat. §15A-1340.22(a),
titled ALimits on Consecutive Sentences,@ reads:
If the court elects to impose
consecutive sentences for
two or more misdemeanors
and the most serious misdemeanor is classified in
Class A1, Class 1, or Class
2, the cumulative length of
the sentences of imprisonment shall not exceed twice
the maximum sentence
authorized for the class and
prior record level of the
most serious offense.
Consecutive sentences shall
not be imposed if all
convictions are for Class 3
misdemeanors.

To examine how this statute applies, we will consider an example.
Suppose defendant is convicted of
three Class 1 misdemeanors and
he has a prior record level of III.
According to the Structured Sentencing grid, the maximum he can
receive on any one of those sentences is 120 days. Twice 120 days
is 240 days. Therefore, defendant=s
total sentence for all three misdemeanors cannot be more than 240
days. If defendant receives three
consecutive sentences of 120 days
each, that equals 360 days, and it
violates the statute.
However, if defendant receives
three consecutive sentences of 30
days each for a total of 90 days,
this would not violate the statute
because the total amount of time
would not exceed 240 days (twice
the maximum). In this way, it is
possible to have three consecutive
misdemeanor sentences that do not
violate the statute.
The statute is generally interpreted
to mean that all three sentences
must be imposed on the same day
for the statute to be given effect. In

other words, if defendant receives
two consecutive sentences on one
day and then receives another consecutive sentence on another day,
this sentence structure does not
violate the statute. That interpretation may not be consistent with the
language of the statute.
NCPLS Attorneys Tracy Wilkinson
and Elizabeth Hambourger were
successful in challenging consecutive misdemeanor sentences that
were imposed at the time of the
revocation of probation. State v.
Wester, 01-CR-3590 (2002); and
Williams v. Beck, et al., 01-CR60650 (2002). In these two cases,
defendants originally received
suspended sentences. When their
sentences were activated, the judge
chose to run multiple sentences
consecutively in a way that violated the statute. In both cases, the
suspended sentences had not been
imposed on the same date, although
the revocations had all occurred
on the same day. In each case, the
court granted relief based upon an
argument that §15A-1340.22(a)
applies to sentences imposed upon
revocation of probation.

Workers’ Compensation (Continued)
(Continued from page 6)

private employer for whom they
are working. NCPLS further
argued that the principles of the
Workers= Compensation Act and
the work release policies of North
Carolina require an employer who

uses inmate labor in its private
business to compensate an injured
inmate employee in the same
manner the employer would compensate any non-inmate employee
of the business.

The Department of Correction
also filed a brief in support of Mr.
Harris. The Supreme Court has
not yet set the case for oral argument. The outcome will be reported in a future addition of Access.

Page 8

NCPLS ACCESS

Volume II, Issue 4, December 2002

The Due Process Clause in the Prison Context –
A Brief Overview
By Staff Attorney Ken Butler

The Due Process Clause of the
Fourteenth Amendment to the
U.S. Constitution provides that
no state shall “deny any person of
life, liberty, or property, without
due process of law.” U.S. Const.
Amend XIV, Sec. 1. Due process,

ticular circumstances at issue. See
Mathews v. Eldridge, 424 U.S. 319,
334, 47 L.Ed.2d 18, 96 S.Ct. 893
(1976) (holding that due process
requires “such procedural protections as the particular situation
demands”). In Wolff v. McDonnell,

particular interest or benefit. The
fact that he may hope to obtain a
particular benefit is not sufficient
to create this interest. Similarly,
where the decision to confer the
benefit is discretionary with prison
administrators, no protected inter-

CJfo person Jball ~ deprio~ of1* Ilhe~, or prope~
I

wllboul dueprocess ofImp.!
at its most basic level, involves
protecting individuals from arbitrary governmental action. Wolff
v. McDonnell, 418 U.S. 539, 558,
41 L.Ed.2d 935, 94 S.Ct. 2963
(1974). This includes insuring both
defining procedural fairness and in
setting boundaries as to the types of
actions that governments can take,
either legislatively or through the
acts of individual government officials. See County of Sacramento v.
Lewis, 523 U.S. 833, 140 L.Ed.2d
1043, 1053-54,118 S.Ct. 1708
(1998). These two areas are known
as procedural and substantive due
process.
Procedural due process, as might
be gathered from the name, focuses
on the adequacy of procedures
which must be employed for the
government to deprive someone
of life, liberty, or property. Procedural due process is a flexible
concept and depends upon the par-

for example, the U.S. Supreme
Court recognized that inmates can
be protected by the Due Process
Clause, but that the scope of this
protection is properly restricted by
the nature of their status as lawfully convicted persons. 418 U.S.
at 556.
The first step in a procedural due
process claim is to determine
whether an individual has been
deprived of a protected “liberty”
or “property” interest. Tigrett v.
Rector & Visitors of the Univ. of
Va., 290 F.3d 620 (4th Cir. Va.
2002). Such interests arise under
either the Constitution itself, federal law, or the laws of the various
states. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454,
104 L.Ed.2d 506, 109 S.Ct. 1904
(1989). In order for either a liberty or property interest to exist,
an individual must be able to show
that he has an entitlement to a

I
est arises. By example, the courts
have rejected claims that the
Constitution provides a protected
interest in remaining in a particular
prison, or in being transferred to a
different unit. Meachum v. Fano,
427 U.S. 215 (1976). Furthermore, the Fourth Circuit Court of
Appeals has stated that placement
in administrative segregation and
the reclassification of inmates “are
discretionary administrative acts in
which an inmate obtains no liberty
interest under North Carolina law.”
O’Bar v. Pinion, 953 F.2d 74, 84
(4th Cir. 1991).
One area in which inmates most
commonly voice due process
concerns is that of prison disciplinary hearings. In Sandin v. Conner,
515 U.S. 472, 115 S.Ct. 2293, 132
L.Ed.2d 418 (1995), the Supreme
Court addressed due process
requirements in prison disciplin(Continued on page 9)

Volume II, Issue 4, December 2002

NCPLS ACCESS

The Due Process Clause (Continued)

Page 9

(Continued from page 8)

ary proceedings. In determining
whether a protected liberty interest
existed, the Court focused on the
particular deprivation at issue and
whether the punishment “imposes
atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” 515
U.S. at 484. Sandin involved an
inmate who had been convicted of
a disciplinary offense and placed
on disciplinary segregation for 30
days, but he had not lost any good
time. The Supreme Court found
that the conditions of disciplinary
segregation were similar to those in
administrative segregation and protective custody, both statuses that
any inmate could reasonably expect
to be subject to during incarceration. Thus, the 30-day disciplinary
confinement did not constitute an
“atypical or significant hardship.”
Following Sandin, courts have
looked to both the conditions of
confinement and the length of time
that the inmate is confined to them,
in assessing whether a liberty interest exists. The Fourth Circuit has
held that a six-month segregation
stay does not implicate a protected
liberty interest. See Beverati v.
Smith, 120 F.3d 500, 503 (4th Cir.
1997) (finding that six-month stay
in administrative segregation for
violation of prison rules did not
constitute an atypical hardship).
From these cases, we can see that a
transfer to disciplinary segregation
is not, by itself, sufficient to invoke
due process protections. Instead,
something more must be shown.
Specifically, according to Sandin,
due process is required only when
a prison official intends to impose a
punishment that “imposes atypical

and significant hardship.” Sandin,
515 U.S. at 484. For example, the
deprivation of earned sentence reduction credits (i.e., gain time) will
have the effect of prolonging the
term of imprisonment. Thus, such
a deprivation may be viewed by the
courts as the type of interest that
requires due process protections.
However, even where a protected
liberty or property interest is
involved, there are other obstacles
to overcome in prosecuting due
process claims. In Wolff v. McDonnell, the Supreme Court recognized
that inmates are entitled to certain
due process protections when they
are being deprived of good time
credits to which they are entitled
under state law. However, under
Wolff, the due process protections
applicable to disciplinary hearings
are minimal. They consist of:

3. A written statement by the
factfinder as to the evidence relied
upon and the reasons for the disciplinary action taken.
Wolff did not engraft the right of
cross-examination into disciplinary proceedings. Nor are inmates
entitled to be represented by attorneys at such hearings, although
an inmate may be entitled to the
assistance of a staff member if the
inmate is illiterate or is otherwise
unable to prepare a defense to the
charges.

1. Written notice of the charges,
given at least 24 hours in advance
of the hearing.

The burden of proving a disciplinary offense is less demanding than
in a criminal case. A prison disciplinary conviction that is supported
by “some evidence” will not be disturbed by the courts. Superintendent, Mass. Corr. Inst. v. Hill, 472
U.S. 445, 454 (1985). This means
that a court will not re-weigh the
evidence or overturn a disciplinary
officer’s determination as to the
credibility of witnesses.

2. An opportunity for the inmate
to tell his side of the story. Generally, the inmate should be allowed
to present documentary evidence
in his defense and to call witnesses when that will not threaten
institutional safety or correctional
goals. However, prison authorities have the discretion to keep
hearings within reasonable limits
and to refuse to call witnesses that
may create a risk of reprisal or
undermine authority. Additionally,
prison officials may limit access to
other inmates to collect statements
or to compile other documentary
evidence.

A reading of the plain language of
the Fourteenth Amendment might
lead one to believe that due process
must be provided before the state
can deprive a person of property.
But there are some circumstances
under which the courts allow due
process proceedings after the
deprivation. In the prison context,
for example, the Supreme Court
has held that the negligent deprivation of property through the acts of
a state or federal employee is not
actionable under 42 U.S.C. §1983.
See Daniels v. Williams, 474 U.S.
327, 333-34, 88 L.Ed.2d 662, 106
S.Ct. 662 (1986). According to the
(Continued on page 11)

Page 10

NCPLS ACCESS

NCPLS HOSTS REPRESENTATIVES OF FAMM
By Staff Attorney Ken Butler

On October 25, 2002, the NCPLS
At the meeting with NCPLS staff,
legal staff met with representatives Ms. Sager spoke about FAMM=s
of Families Against Mandatory
role in pursuing legislative and
Minimums (FAMM). Speaking
administrative reforms in several
at this meeting were Laura Sager,
states and at the federal level to
FAMM=s Executive Director, Ange- eliminate the harshest aspects of
lyn Frazier,
mandatory
the State
minimum
Organizing
sentences,
Director,
particularly
and Bruce
in the area of
Cunningdrug related
ham, a disoffenses.
tinguished
FAMM
North Carois studylina crimiing North
nal defense
Carolina=s
attorney
habitual
who helped
felon senorganize
tencing laws,
FAMM=s
among other
visit to
aspects of
North Carolina.
our sentencing structure. There
was discussion about previous
As explained on their website,
challenges that have been brought
FAMM.org., AFAMM is a national
regarding the habitual felon laws,
nonprofit organization founded
none of which have yet been sucin 1991 to challenge inflexible
cessful in the courts. We also reand excessive penalties required
viewed the ways in which habitual
by mandatory sentencing laws.
sentencing laws can be manipuFAMM promotes sentencing polilated to the disadvantage of defencies that give judges the discretion
dants, and the unnecessarily harsh
to distinguish between defendants
sentences that can result. FAMM
and sentence them according to
is currently seeking information
their role in the offense, seriousabout North Carolina defendants
ness of the offense and potential
who have been harshly punished
for rehabilitation. FAMM=s 25,000 under the habitual felon laws.
members include prisoners and
their families, attorneys, judges,
Inmates and others can contact
criminal justice experts and conFAMM at the following address:
cerned citizens. FAMM does not
argue that crime should go unpunFAMM
ished - but the punishment must fit 1612 K Street, N.W., Suite 1400
the crime.@
Washington, D.C. 20006
Tel: (202) 822-6700

Volume II, Issue 4, December 2002

ACTIVITIES 2000-2002
(CONTINUED)
(Continued from page 5)

The Wake County Chapter of the
American Civil Liberties Union has
been active in the fight to uphold
the Bill of Rights and to preserve
basic freedoms for all North Carolinians. Senior Attorney Susan H.
Pollitt serves as a member of the
Board of Directors for this organization.
Perhaps the most significant work
performed by the NCPLS staff
was handled predominately by our
paralegals and involved efforts to
have sentences properly structured.
(Obviously, neither the Department
of Correction nor the taxpayers of
North Carolina have any desire to
incur the expense of incarcerating individuals longer than the law
requires.) Excessive time on a sentence arises from sentencing errors,
a failure to properly calculate
sentence structure, and a failure to
properly calculate or apply jail time
or sentence reduction credits (merit
time, good time, gain time, etc.).
From October 1, 2000 through
September 30, 2002, NCPLS advocates have succeeded in having at
least 183,120 days of credit applied against our clients= sentences.
At an average cost of $65.29 per
inmate day, the Department will
save a total of $11,955,904.80.
More importantly, as a result of
these efforts, our clients will enjoy
501 years, 8 months, and 15 days
of freedom.
At NCPLS, we appreciate the opportunity to be of service and we
look forward to the next two years.

Volume II, Issue 4, December 2002

NCPLS ACCESS

Page 11

The Due Process Clause (Continued)
(Continued from page 9)

Court, state law provides adequate
post-deprivation remedies for such
claims. (For example, if an officer
lost or misplaced your personal
property, you might have a remedy
through the tort claim procedure.)
Similarly, the intentional deprivation of property through the
random and unauthorized acts of
a state or federal employee does
not constitute a deprivation of due
process if “a meaningful post-deprivation remedy for the loss is
available.” Hudson v. Palmer, 468
U.S. 517, 533, 82 L.Ed.2d 393, 104
S.Ct. 3194 (1984).
In contrast to procedural due process, substantive due process is intended to limit the arbitrary use of
government authority, “barring certain government actions regardless
of the fairness of the procedures
used to implement them.” Daniels
v. Williams, 474 U.S. at 331; see
also Collins v. Harker Heights,
503 U.S. 115, 126, 117 L.Ed.2d
261, 112 S.Ct. 1061 (1992) (noting
that the Due Process Clause was
intended to prevent government
officials from abusing their power,
or employing it as an instrument of
oppression). It almost goes without
saying that there are many aspects
of day-to-day prison life, and actions or decisions by prison administrators and correctional staff,
which strike inmates as unfair or
oppressive. However, a subjective,
personal feeling about the conduct
of state officials does not determine
whether a substantive due process
claim exists. Instead, there are two
important elements which must be
shown in any attempt to bring a
substantive due process claim.
Because substantive due process

is not a precisely defined concept,
the courts are reluctant to expand
its scope and applicability. Where
a particular constitutional provision already covers the type of
government conduct complained
of, the courts will not interpret the
claim under substantive due process grounds. Graham v. Connor,
490 U.S. 386, 395, 104 L.Ed.2d
443, 109 S.Ct. 1865 (1989). What
this means for DOC inmates is that
conduct covered by specific provisions of the Constitution cannot be
pursued as substantive due process
claims. Eighth Amendment claims
(excessive force, denial of medical care, conditions of confinement), Fourth Amendment claims
(unreasonable searches), and First
Amendment claims (freedom of
speech, religion, association) are
all examples of matters for which a
substantive due process claim may
not be available. However, some
types of claims that might have
arisen prior to an inmate’s conviction are governed by the Due Process Clause. These include claims
of excessive force against, or
conditions of confinement imposed
upon, a pretrial detainee. Martin
v. Gentile, 849 F.2d 863 (4th Cir.
1988). Such claims may encompass a “substantive” element.
A second factor to consider in any
substantive due process claim is
that “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’”
County of Sacramento v. Lewis,
523 U.S. at 846 (quoting Collins v.
Harker Heights, 503 U.S. at 129).
The standard applied in such cases
is whether the official conduct at
issue can be said to “shock the con-

science.” Id.; Breithaupt v. Abram,
352 U.S. 432, 435, 1 L.Ed.2d 448,
77 S.Ct. 408 (1957) (conduct that
“shocked the conscience” and was
so brutal and offensive that it did
not comport with traditional ideas
of fair play and decency in violation of substantive due process
principles). As with other aspects
of due process, there is no standard
test to be applied, and the level of
conduct that can be said to “shock
the conscience” will have much to
do with the particular circumstances at issue. However, under any
test, a mere claim of negligence
by a government official will not
rise to the level of a constitutional
violation. County of Sacramento v.
Lewis, 523 U.S. at 849 (liability for
negligently inflicted harm is categorically beneath the threshold of
constitutional due process).
Due process is a complex and
evolving area of the law. This
article introduces its basic principles. While due process protections apply in the prison context,
such protections are often narrowly
construed. Nevertheless, if you
believe you may have suffered a
violation of your constitutional
rights, whether in the due process
context or some other area, write to
NCPLS for a review of your claim.
Also, please be aware that federal
law requires inmates to exhaust administrative remedies before seeking relief under the federal civil
rights laws. 42 U.S.C. §1997e(a).
Therefore, in order for our office
to fully review a particular claim,
we will need to see copies of your
inmate grievances concerning the
claim, as well as all administrative
responses and appeal results.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.
224 S. Dawson Street
PO Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: psanders@ncpls.org

c
Visit our website at:
http://www.ncpls.org

North Carolina Prisoner Legal Services, Inc.
224 S. Dawson Street
PO Box 25397
Raleigh, NC 27611