The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume V, Issue 1, March 2005

ACCESS

RESEARCH INVOLVING
PRISONERS RE-EXAMINED
The National Academies of Science, Institute of Medicine recently
commissioned a study to
re-examine the ethical considerations for the protection of prisoners involved
in research. Regulations
that presently govern such
research have been criticized
as out-of-date, unduly restrictive, and overly protective of
prisoners.
The history of the use of
prisoner subjects in research
is relatively short and deeply
troubling. Following the
widely publicized abuses of
Nazi experimentation in the
concentration camps of the
1930’s and ‘40’s, European
countries adopted conventions that essentially banned
the use of prisoners
in research. For example, the
Nuremberg Code (1949) required
that human subjects “be so situated
as to be able to exercise free power
of choice.” The Declaration of
Helsinki, which was adopted by the
American Medical Association in
1966, included similar requirements, but they were deleted in
1975. Nonetheless, countries other
than the United States do not generally permit prisoners to participate in biomedical research.
However, beginning in World
War II American prisoners were

recruited as subjects of medical
research to develop treatment for

infectious diseases that afflicted
people in the armed forces. In the
years and decades that followed,
the use of prisoners in research
became increasingly common. By
the mid 70’s, as much as 85% of
research involving cosmetics and
drugs was conducted on prisoners.
Many abuses were documented,
including the deliberate infection of
prisoners with disease in order to
test the efficacy of treatments.
But beginning in the 60’s, the ethical propriety of involving prisoners
in research has been the subject
of inquiry. As a result, Congress

passed the National Research Act,
P.L. 93-348, 88 Stat. 348 (July 12,
1974) and created the
National Commission for the
Protection of Human Subjects of Biomedical Research.
The Commission identified
and weighted competing
considerations regarding the
use of prisoners in research.
On the one hand, the principle of respect for persons
requires that an individual
be permitted to exercise
independent judgement and
that freely made choices be
honored. On the other hand,
prisoners are subjected to
an inordinately restrictive
environment, they are subject
to coercion, and an appropriate expression of respect in
such a context requires a high
(Continued on Page 2)

In this Issue:

Research Involving Prisoners
Re-Examined
MAR Results in Sentence Reduction
Ex Post Facto Appeal
Supreme Court Report
Hold Yourself Accountable
Filing Fee Increases for Federal
Civil Cases
IOLTA Awards NCPLS $5,000
Matching Grant
Failure to Protect Settlement
(Re-Visited)
Booker and North Carolina:
A Policy Perspective

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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, Fred Williams, Esq.
Jim Blackburn
Representative Alice L. Bordsen
Michelle S. Cofield, Esq.
James A. Crouch, Esq.
Dean Ronald Steven Douglas
Professor Grady Jessup
Barry Nakell, Esq.
Susan Olive, Esq.
Gary Presnell, Esq.
Professor Ronald F. Wright
Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA
PLEASE NOTE: ACCESS is published

four (4) times a year.

Articles, ideas and suggestions are
welcome: tsanders@ncpls.org

Volume V, Issue 1, March 2005

RESEARCH RE-EXAMINED
(Continued from Page 1)

(CONTINUED)

degree of protection from exploitation.
After months of fact-finding,
study, and deliberation the National
Commission issued a 1976 report
containing recommendations and
principles governing the use of
prisoners in medical research.
Those recommendations were
incorporated into regulations
adopted by the Department of
Health and Human Services
(DHHS) at 45 C.F.R 46 Subpart C
(1978). In essence, the regulations
permit the use of prisoners who
knowingly and voluntarily consent
to participate in research of four
types. Research involving “minimal risk” (that is, risk not greater
than that “ordinarily encountered in
daily life”) is permitted when the
research examines “the possible
causes, effects, and processes of
incarceration, [or] of criminal
behavior;” or the “study of prisons
as institutional structures or of prisoners as incarcerated persons.” 45
C.F.R. 46.306(2)(A) & (B).
Other types of research involving prisoners include “research on
conditions particularly affecting
prisoners as a class,” and “research
on practices, both innovative and
accepted, which have the intent and
reasonable probability of improving the health or well-being of the
subject.” 45 C.F.R. 46.306(2)(C)
& (D). However, these latter
categories of research require the
approval of the Secretary of DHHS
after consultation and publication
in the Federal Register. Id.

There are several concerns about
these regulations. First, they apply
only to research funded by DHHS
or other agencies of government
that have expressly agreed to be
bound by the rules. 45 C.F.R.
46.101. Second, the regulations
have been criticized as overly protective, preventing the participation of people who would benefit
greatly from research into the treatment of HIV/AIDS, or Hepatitis C,
for example. Third, researchers
have complained that the regulations are too restrictive and that
they frustrate efforts to expand
knowledge. Finally, much has
changed during the two-and-a-half
decades since the rules were promulgated and some observers
question whether they are continue
to be in keeping with the realities
of prison life, societal perceptions
about research, and the need for the
protection of well-informed and
consenting participants in research.
As a result, the National Academies
of Science, Institute of Medicine
has created the Committee on Ethical Considerations for Revisions to
the Department of Health and
Human Services (DHHS) Regulations for Protection of Prisoners
Involved in Research. Among
those named to the Committee is
NCPLS Executive Director
Michael Hamden.
The Committee will examine
whether the conclusions reached by
the 1976 Commission remain
appropriate today. This examina(Continued on Page 7)

NCPLS ACCESS

Volume V, Issue 1, March 2005

Page 3

MAR RESULTS IN SENTENCE REDUCTION
On behalf of a man sentenced for
second degree rape from Forsyth
County, NCPLS Staff Attorney
Elizabeth ColemanGray filed a
Motion for Appropriate
Relief (MAR). The Honorable Lindsay R. Davis,
Jr., Resident Superior
Court Judge for Guilford
County, was the visiting
judge who heard the case,
granted the MAR and resentenced the Petitioner.

tion. According to court records,
one of the prior convictions was
for attempted misdemeanor break-

Following trial and
conviction, the Petitioner
had been found to have
a Class C felony and a
Prior Record Level of III.
He was determined to have five
prior record points based on four
misdemeanor convictions, and the
fact that the offense was committed while Petitioner was on proba-

ing and entering. The defendant’s
prior record level was calculated
based upon the mistaken application of misdemeanor breaking
and entering, which is a Class 1
misdemeanor. N.C. Gen. Stat.
§14-54. Under N.C. Gen. Stat.

§14-2.5, attempted misdemeanor
breaking and entering is a Class 2
misdemeanor. But, according to
N.C. Gen. Stat. §15A1340.14(b)(5), Class 2
misdemeanors are not
countable as prior record
points. Thus, Petitioner
should not have received
a point for the attempted
misdemeanor breaking
and entering conviction.
His prior record points
should have been calculated at four points, resulting in a Prior Record
Level of II. Petitioner
was originally sentenced
to 105-135 months. The MAR
court re-sentenced him to 91-119
months to reflect the correct Prior
Record Level. State v. Thomas,
No. 99-CRS-036198, Forsyth
County Superior Court (2005).

EX POST FACTO APPEAL
By NCPLS Senior Attorney Richard E. Giroux

Prisoner Larry Eugene Smith filed
a pro se petition in Wilson County
Superior Court. Changes in DOC
rules were adopted after the dates
of Smith’s criminal offenses.
Those changes increased the
amount of good time that could be
lost for certain prison disciplinary
infractions. Smith challenged those
changes as violative of due process
and the Ex Post Facto Clause.
Formerly, major infractions could
result in the loss of up to 30 days
of good time credits. Under the
new regulations, this was increased
to 40. Minor infractions, which
formerly could not result in the loss

of any good time, now can result
in the loss of up to 20 days. Smith
alleged that such rule changes
violate the Ex Post Facto Clause
of the U.S. and N.C. Constitutions,
the Due Process Clause of the U.S.
Constitution, and state statutes.
The Superior Court appointed
NCPLS to represent Smith. The
DOC’s lawyers filed a motion to
dismiss, and NCPLS filed a motion
for summary judgment. On February 14, 2005, a hearing was held
on the motions. The court denied
Smith’s motion and dismissed the
action, citing only a Fourth Circuit
case that held that prison officials,

consistent with the Ex Post Facto
and Due Process Clauses, could
increase the penalties for prospective violations of prison regulations, even though the increased
penalties involved the loss of good
time credits. Ewell v. Murray, 11
F.3d 482 (4th Circuit 1993), cert.
denied, 51 U.S. 1111 (1994).
Because this case could affect the
release date of so many prisoners,
NCPLS has decided to offer Smith
representation on appeal to the
North Carolina Court of Appeals.
The record on appeal is being prepared, and briefs will be filed later
in the spring.

NCPLS ACCESS

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Volume V, Issue 1, March 2005

SUPREME COURT REPORT
Death Penalty
Seventeen years ago, the U.S.
Supreme Court considered whether
the Eighth Amendment barred execution of people who were younger
than 16 years old when they committed the crimes for which they
were sentenced to death. Thompson v. Oklahoma, 487 U.S. 815
(1988). The decision of a closely
divided Court turned on the opinion of Justice O’Connor that there
was no clear national consensus
against imposing the death penalty against juveniles and, thus,
such executions did not violate
the Eighth Amendment. A similar
result was reached a year later in
Stanford v. Kentucky, 492 U.S. 361
(1989)(death penalties imposed on
16- and 17-year-old defendants not
unconstitutional).
This term, in Roper v. Simmons,
__ U.S.__, 125 S.Ct.1183 (2005),
the Supreme Court reconsidered its
decision in Stanford v. Kentucky.
In another 5-4 decision, the Court
found that, in light of evolving
societal standards, the Eighth
Amendment now prohibits the execution of defendants who were
under 18 at the time that the crimes
were committed. In reaching this
result, the majority noted that 30
states had rejected the death penalty for juveniles, including 12
states that had abandoned capital
punishment altogether. 125
S.Ct. at 1192. The Court also
pointed to distinctions between
juveniles and adults, such as the
lower maturity level, greater susceptibility to negative influences
and outside pressure, and the fact
that a juvenile’s character is not as
fully formed as an adult’s, which

rendered juveniles less culpable
than an adult. 125 S.Ct. at 11951196. Finally, the Court observed
that the United States was the only
country that gave official sanction
to the juvenile death penalty. 125
S.Ct. at 1198.
Sentencing
A series of Supreme Court cases
construes the right of an accused
person to a jury’s determination
beyond a reasonable doubt of any
fact (other than prior conviction)
that increases the maximum penalty for a crime, and the limitations
upon judicial sentencing discretion.
See, for example, AlmendarezTorres v. United States, 523 U.S.
224 (1998); States v. Jones, 526
U.S. 227 (1999); Apprendi v. New
Jersey, 530 U.S. 466 (2000); and
Blakely v. Washington, __ U.S. __,
124 S.Ct. 2531 (2004).
The most recent decision in that
line of cases was announced by the
Supreme Court in United States v.
Booker, 125 S.Ct. 738 (2005). In
Booker, the Court held that the
Federal Sentencing Guidelines
were unconstitutional, at least to
the extent that they required a
sentence to depend upon facts
neither charged in the indictment
nor proven to a jury. Booker’s
sentence was increased ten years
because the judge found by a
preponderance of the evidence that
he possessed more cocaine than he
was tried for possessing.
The remedy for this Sixth Amendment violation was not the remedy
urged by the plurality of the Court,
which had championed the cause
for years. Rather, a new “reme-

dial” majority of the Supreme
Court held that the solution was
simply to make the Guidelines
“advisory,” and not binding on the
sentencing judge.
The “remedial majority” reasoned
that non-mandatory guidelines
would be consistent with the Sixth
Amendment, so long as judges are
allowed to take any number of factors into account when imposing a
sentence within the statutory range.
But that does not seem consistent
with the logic of Apprendi, which
held that any factor (other than a
prior conviction) that changes the
sentencing range should be understood as an element of the crime
and must be proven to a jury
beyond a reasonable doubt. In
Booker, only Justice Ginsburg
found both that the Guidelines
violated the Constitution and that
rendering them advisory was the
proper remedy for the constitutional infirmity. The remainder
of the Court was equally divided
as to whether the Guidelines were
unconstitutional, and as to whether
the constitutional violation could
be remedied by treating the Guidelines as advisory.
It seems clear that Booker is not a
final resolution of the tension
between the desire for consistency
(reflected in determinate sentencing
schemes such as the Federal Sentencing Guidelines) and fairness
(encompassed by the jury trial
imperative). The response of
Congress and the legislatures of the
states will doubtless occasion new
litigation before a fully satisfactory
balance is struck between these
competing interests.
(Continued on Page 5)

Volume V, Issue 1, March 2005

(Continued from Page 4)

NCPLS ACCESS

Page 5

SUPREME COURT REPORT (CONTINUED)

Classification
In California, prisoners newly
admitted to a correctional institution (whether as the result of a
transfer, or upon admission) were
segregated by race for a two-month
period. The California
Department of Corrections (CDOC) argued
that this measure was
necessary to prevent
violence among racial
gangs. That practice
was the subject of a legal
challenge which came
before the Supreme
Court this term. Johnson
v. California, __U.S.__,
2005 WL 415281 (February 23, 2005).
The CDOC provided
evidence of numerous
incidents of racial violence and
identified five separate gangs separately comprised of racially distinct
members. The CDOC argued that
the unwritten segregation policy
was equally applicable to prisoners
of all races and, therefore, was not
discriminatory.
The central question in the case
was the standard of review to be
applied by the courts in assessing
whether the segregation policy
violated the Constitution. Under
Turner v. Safley, 482 U.S. 78
(1987), the Court held that prison
regulations that infringe upon the
constitutional rights of prisoners
are to be evaluated by determining
whether the regulation was “reasonably related” to a “legitimate
penological interest.” Under this
deferential standard, prison offi-

cials are accorded broad discretion
over regulating virtually all aspects
of prison life.
In the Johnson Case, however, the
Supreme Court found an earlier
decision to be controlling. In Lee

v. Washington, 390 U.S. 333 (1968)
(per curiam), without publishing a majority opinion, the Court
affirmed a decision that held
unconstitutional Alabama’s policy
of segregation in its prisons. Id., at
333-334. By implication, the Johnson Court viewed Lee as precedent
for the application of a heightened
standard of judicial review in cases
involving racial segregation.
According to the Court, the Turner
standard applies when assessing
the infringement of rights inconsistent with the status of prisoners,
because “certain rights must necessarily be limited in the prison context.” For example, the Turner test
has been applied in cases involving
First Amendment rights. See, for
example, Overton v. Bazzetta, 539
U.S. 126, 131 (2003)(restrictions

on freedom of association; visitation); Lewis v. Casey, 518 U.S.
343 (1996)(restrictions on inmates’
access to courts); Thornburgh v.
Abbott, 490 U.S. 401 (1989)
(restrictions on receipt of subscription publications); O’Lone v. Estate
of Shabazz, 482 U.S. 342
(1987)(limitations on
prisoners’ attendance at
religious services);
Washington v. Harper,
494 U.S. 210 (1990)
(involuntary medication
of mentally ill prisoners); and in Turner, itself.
Turner v. Safley, 482 U.S.
78 (1987)(restrictions on
the right to marry).
The Court explained:
“The right not to be
discriminated against
based on one’s race is .
. . a right that need [not] necessarily be compromised for the sake
of proper prison administration.
On the contrary, compliance with
the Fourteenth Amendment’s ban
on racial discrimination is not
only consistent with proper prison
administration, but also bolsters the
legitimacy of the entire criminal
justice system.”
Thus, the Court concluded that the
CDOC policy must be examined
under “strict scrutiny” to “guard
against invidious [racial] discrimination.” On remand to the trial
court, prison officials “must demonstrate that race-based policies are
‘necessary to further a compelling
governmental interest,’ and that the
policies are ‘narrowly tailored to
that end.’”

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Volume V, Issue 1, March 2005

HOLD YOURSELF ACCOUNTABLE
By Michael G. Santos - Reg. No. 16377-004

Editor’s Note: The following article, “Hold Yourself Accountable,” follows a series of articles republished in ACCESS by
permission of the author, Inmate Michael G. Santos. Mr. Santos was convicted of drug distribution and sentenced to serve
45 years in Federal prison. He is scheduled for release in 2013. While in prison he has earned Bachelors and Masters
Degrees. He has also written three books available for review and purchase on his web site: www.MichaelSantos.net.
Although Mr. Santos does not have direct access to the internet, he can be reached by email at: info@michelsantos.net
Mr. Santos can also be reached by writing to him at the following address: Michael G. Santos, Reg. No. 16377-004, FCI –
Florence, Teller 6-212, P.O. Box 5000, Florence, CO 81266-5000.

Those of use who serve time in
prison cannot change the past. We
do have it within our power to
anticipate the future. As prisoners
it is incumbent upon each of us to
expect challenges and obstacles to
follow our release. Many will
come. We should make preparations while inside these cages
so that we leave prison with
the skills, values, and resources
necessary to succeed. Statistics
suggest that success will not
come easily.
My own imprisonment began in
1987. I have come into contact
with tens of thousands of other
prisoners, and I have tried to
learn from my observations. I
do not need newspapers to tell
me that recidivism rates are
high. I only have to look at the
men around me. Most all of them
have histories of previous confinement.
Some people return to prison with
new criminal charges and new
lengthy sentences only months
after their release. They frequently
have a few new stories and someone to blame for their failure to live
among the broader society. The
truth about their inability to make
it usually comes down to their own
bad decisions. All too often those
decisions began during their original term of confinement.

In my book, About Prison, I wrote
about Redneck Rick. I met him
soon after I was assigned a cell in
the United States Penitentiary in
Atlanta. Rick was about 30, and he

was in his ninth year of a lengthy
sentence for bank robbery. He had
been convicted under a sentencing scheme that would make him
eligible for release on parole after
he served ten years in prison. Like
most prisoners, Rick enthusiastically anticipated his release.
Many prisoners serve their time
by breaking their days into steady
routines, and Redneck Rick was no
different. Each morning he would
leave his cell for breakfast, then
walk to work in the prison factory
where he sewed canvas mailbags
that were used by the U.S. Postal
Service. Rick’s shift earned him

approximately $150 each month.
It ended at 3:30 in the afternoon,
at which time he would return to
his cell for the daily census count.
After that, Rick would accompany
his friends for dinner in the chow
hall, then return to the cellblock
for a few hours of card playing
or television until the evening’s
lockdown. He was a model
prisoner.
Since he had been assigned to a
cell near mine, I observed Rick
following this daily routine for
over a year. The night before he
was schedule for release, several
guys chipped in a few items from
the commissary for the customary send-off. Rick walked out of
USP Atlanta’s gates just after the
New Year. But he returned to my
same cellblock with a new 25-year
sentence before the following holiday season rolled around. Rick did
not stay out long enough to enjoy a
single Christmas as a free man.
It did not take Rick long to settle
back into the routine he had come
to know during the first decade he
spent in confinement. His former
supervisor assigned him to the
same job he had held before his
release, and after he was able to
maneuver his way back into the
identical bunk assignment to which
he had grown accustomed during
(Continued on Page 7)

NCPLS ACCESS

Volume V, Issue 1, March 2005

Page 7

HOLD YOURSELF ACCOUNTABLE
(CONTINUED)

(Continued from Page 6)

his first decade, Rick resumed his
evening card game. I asked Rick
what happened, and he narrated the
difficulties of living on parole.

accountability systems. Despite
the many years Rick had served in
prison, he was not prepared for the
new structure.

Because Rick did not have any
family support, the parole board
required him to spend his first six
months after release in a halfway
house. It is a system to help longterm prisoners find stability after
their release. Generally, those prisoners who have over a year to serve
spend the last ten percent of their
sentence, or up to six months, in a
halfway house. Participants in the
program agree to pay 25 percent of
their gross earnings for room and
board, but they also must abide by
strict rules, curfews, and personal

After several weeks of struggling,
Rick became frustrated with his
ability to secure employment.
That and a combination of pressures from both his parole officer
and administrators of the halfway
house pushed him to a catastrophic
decision. He purchased a handgun from a street peddler, then
impulsively walked into a bank
with the intention of robbing it.
Despite Rick’s firearm, security
guards quickly foiled the robbery
attempt and brought Rick into
custody before he was able to cause
physical harm to any of the people

inside. That was the end of Rick’s
attempt at living outside prison
gates.
Rick’s story is not unusual. Many
prisoners revert to crime after their
terms expire. In spite of the enthusiasm they once felt for release,
many prisoners return to these
caged communities with new sentences to serve.
The books I write describe steps
prisoners can take to ensure that
when they leave prison, they do so
permanently. Success is a matter
of choice and making adequate
preparations for the frustrations and
obstacles that are certain to follow
release.

RESEARCH RE-EXAMINED
(CONTINUED)

(Continued from Page 2)

tion will consider the impact of
developments since that time in
correctional systems and the societal perceptions of the balance
between research burdens and
potential benefits of research.
More specifically, the committee
will consider whether the ethical
bases for research with prisoners
differ from those for research with
non-prisoners; develop an ethical
framework for the conduct of

re-search with prisoners; based
on the ethical framework developed, identify considerations or
safeguards necessary to ensure
that research with prisoners is
conducted ethically; and identify
issues and needs for future consideration and study.
The Committee’s first meeting was
held in Washington, D.C. at the
Institute of Medicine on March 16

and 17, 2005. The Committee welcomes comments from the public,
which should be directed to:
Tracy G. Myers, Ph.D.
Senior Project Officer
Institute of Medicine
500 Fifth Street, NW
Washington, DC 20001.

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Volume V, Issue 1, March 2005

FILING FEE INCREASES FOR FEDERAL CIVIL CASES
By Staff Attorney Ken Butler

On February 7, 2005, the civil case
filing fee in federal court increased
from $150.00 to $250.00. 28
U.S.C. §1914(a). This fee applies
to all civil cases filed in federal
court, including civil rights complaints under 42 U.S.C. §1983.
Under the Prison Litigation Reform
Act (PLRA), prisoners are obligated to pay the full amount of the
filing fee when filing a civil rights
claim. If a prisoner does not have

the full amount of the fee at the
time of filing, an application to

proceed in forma pauperis (IFP)
can be filed with the complaint.
Prior to the PLRA, a prisoner who
was granted IFP status could be
excused from paying some, or all,
of the fee. However, under current
law, a grant of IFP status simply
means that the prisoner may proceed by paying an initial partial
filing fee, and the remainder will be
collected in monthly installments
from the prisoner’s trust account.
28 U.S.C. §1915(b).

IOLTA AWARDS NCPLS $5,000 MATCHING GRANT
The North Carolina State Bar is the
organization that governs lawyers
in the practice of law. The State
Bar has many functions, probably
the most familiar of which is the
responsibility to enforce the Rules
of Professional Conduct and to
discipline attorneys who transgress
those rules. But the State Bar also
has other roles. For example, the
State Bar established and administers the Plan for Interest on Lawyers’ Trust Accounts (IOLTA).
IOLTA uses the interest collected
from lawyers’ trust accounts to
fund programs that benefit the
public.
For quite some time, IOLTA has
awarded NCPLS a grant which
funds the Safe & Humane Jails
Project, an effort to provide legal
advice and assistance to an everchanging population of approxi-

mately 14,000 people who are held
in the State’s jails, detention facilities and municipal lock-ups.

exceeded (by more than $500.00)
the amount required to qualify for
IOLTA’s matching grant!

In 2004, IOLTA offered NCPLS
an additional $5,000 grant, conditioned upon a requirement that we
raise the same amount through contributions. As you might imagine,
with so many compelling causes to
which public-spirited people might
donate money, it is difficult to
persuade people to contribute hardearned income to support our work.

We are grateful to those whose
generosity made it possible for us
to meet this challenge. We are
proud that most of the amount we
raised was contributed by members
of our Board of Directors and staff.
We are thankful to have additional
funding to better serve our clients.
And, we especially appreciate the
support of IOLTA for this important work.

As the spring of 2004 gave way to
summer, then autumn, and despite
considerable planning and effort,
several fund-raising initiatives fell
flat. By late November it began to
look hopeless. But, by the end of
December, thanks to the generosity
of more than twenty people and
one law firm, NCPLS actually

NCPLS ACCESS

Volume V, Issue 1, March 2005

Page 9

Failure to Protect Settlement (Re-Visited)
By NCPLS Staff Attorney Michele Luecking-Sunman

As reported in the December 2004
issue of Access, NCPLS represented five prisoners in failure to
protect claims arising from an incident that occurred in a segregation
unit. The claims of the prisoners
were settled out of court and the
DOC agreed to provide better security at the segregation unit. More
specific details were withheld in an
effort to protect the privacy of our
clients.
On February 27, 2005, the News &
Observer published an article by
Staff Writer Dan Kane explaining
the claims of the prisoners and the
investigation by prison officials in
greater detail. Mr. Kane’s inter-

authored by the editorial board
appeared in the News & Observer.
The editorial called for a more
open approach to, and greater
public oversight of prison investigations. Both articles were supportive of our clients and their right
to be protected from harm while in
the custody of the Department of
Correction.
views with some of our clients,
prison officials, local attorneys
and attorneys at NCPLS provided
the basis for his report, including
information that DOC paid $43,500
in settlement of the claims. Several days later, an opinion piece

The result of increased awareness of problems within the state’s
prisons is a positive step toward
addressing those problems. It is
encouraging that the issue has been
identified by the News & Observer
as one of general concern and
broad public interest.

BOOKER AND NORTH CAROLINA:
A POLICY PERSPECTIVE
By: Billy Sanders, CLAS; Commissioner,
NC Sentencing & Policy Advisory Commission

The remedy to the unconstitutionality of the Federal Sentencing Guidelines mandated by the
United States Supreme Court in
United States v. Booker, 125 S.Ct.
738 (2005), highlights the tension
between two competing interests in
criminal proceedings – the modern
preference for determinate sentencing and the Supreme Court’s recent
cases that require all facts that
increase punishment be submitted to a jury and proven beyond a
reasonable doubt.
Many states have opted for determinate sentencing policies in recent
years. This approach to sentencing
allows judges to look to a variety

of factors and, if they are present in
the case, increase punishment for
crimes based on facts that are not
elements of the offense. As noted
above, recent Supreme Court cases
have held this practice to be unconstitutional, as they did in Booker
in regard to the Federal Sentencing
Guidelines. However, the Supreme
Court’s remedial scheme in Booker
construed the Sentencing Guidelines to render them “advisory”
in nature. This “Booker remedy”
would be particularly unsuitable for
application in North Carolina.
Indeterminate sentencing schemes,
such as the one which existed in
North Carolina prior to 1994, The

Fair Sentencing Act, permitted the
court broad discretion to impose a
sentence “tailored” to fit the defendant and the crime, taking into
consideration the facts and circumstances involved in the commission
of the crime, together with aggravating and mitigating factors. The
indeterminate approach in North
Carolina produced widely divergent results in sentences imposed
for similar crimes committed by
similarly situated defendants (in
terms of the defendant’s prior
criminal history). Consequently, it
provided little predictability as to
outcomes and essentially no basis
upon which to anticipate the needs
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of the criminal justice system,
particularly with regard to the correctional system. The long-term
consequences of indeterminate
sentencing led to a call for “truth
in sentencing” and consistency in
sentencing practices.
Determinative sentencing, exemplified by North Carolina’s Structured
Sentencing Act, was the legislative
response to the inadequacies of
indeterminate sentencing. Determinative sentencing generally
requires the imposition of a specific
penalty upon conviction of any particular crime, allowing for departures from the prescribed sentence
only upon findings of aggravated or
mitigated circumstances, and even
then, only within narrowly prescribed ranges. Determinative sentencing has been criticized for its
inflexibility, resulting in arguably
unjust results, and for reducing the
role of judges in sentencing to that
of administrative functionaries.
As suggested below, however, the
benefits provided by North Carolina’s determinative sentencing
policy argue strongly for a plan that
retains the salutary components of
The Structured Sentencing Act.
Months before Booker was
decided, Blakely v. Washington,
542 U.S. __, 159 L.Ed.2d 403, 124
S.Ct. 2531 (2004), held that a
determinative sentencing scheme,
much like that of North Carolina,
was constitutionally flawed because factors that could be used to
increase the penalty for a crime
were decided by a judge, and not

determined beyond reasonable
doubt by a jury. Blakely forced
North Carolina lawmakers and
policymakers to focus on the
constitutionality of The Structured
Sentencing Act. As they began to
understand that North Carolina’s
sentencing practices were subject
to a Blakely challenge, legislators
began searching for ways to bring
North Carolina into compliance
with Blakely’s mandate.

a (Booker) approach
would essentially convert
Structured Sentencing
into an indeterminate
sentencing policy. It bears
remembering that twenty
years ago indeterminate
sentencing (as reflected in
The Fair Sentencing Act)
nearly resulted in a federal
takeover of North
Carolina's prison system.
Blakely, and Apprendi v. New
Jersey, 530 U.S. 466, 490, 147
L.Ed.2d 435, 120 S.Ct. 2348
(2000), brought determinative sentencing policies into question by
requiring that “any fact (other than
prior conviction) that increases the
maximum penalty for a crime must
be submitted to a jury and proven
beyond a reasonable doubt.” In
North Carolina, based upon “a preponderance of the evidence,” a
judge could make findings of fact
as to aggravating factors and

increase the sentence a defendant
received. Consequently, North
Carolina’s sentencing practices run
afoul of Blakely and are unconstitutional.
North Carolina could adopt the
remedy imposed in Booker by
redefining the sentencing grid,
designating the bottom of the
mitigated range as the lowest possible minimum sentence, and the
top of the aggravated range as the
highest maximum sentence (for the
class of felony committed at the
prior record level of the defendant).
Moreover, aggravated and mitigated sentencing ranges could be
denominated as “advisory.” Thus,
the sentencing judge could impose
any sentence between the extremes
without submitting aggravating
factors to a jury, or making any
specific findings about such factors
at all.
Such an approach would essentially
convert Structured Sentencing into
an indeterminate sentencing policy.
It bears remembering that twenty
years ago indeterminate sentencing
(as reflected in The Fair Sentencing Act) nearly resulted in a federal
takeover of North Carolina’s prison
system.
The more rational alternative is for
North Carolina, like Kansas, to
make changes to its laws that will
comply with Blakely while maintaining the integrity of its current
sentencing policy. Although North
Carolina could adopt either means
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of constitutional compliance, there
are sound policy reasons to reject a
remedy such as the Supreme Court
fashioned in Booker. North Carolina should instead opt for relatively minor adjustments to The
Structured Sentencing Act.
Historical Background:
Prison System in Crisis
Prior to 1994, under indeterminate
sentencing schemes, North Carolina inmates served sentences
subject to complicated formulas
of sentence reduction credits,
the unpredictable decisions of
the Parole Commission (which
involved the application of many
different parole eligibility calculations for different types of
offenses), and the need to free-up
prison beds by releasing inmates
earlier than expected at the time of
their sentencing because of overcrowding. This combination of
factors often meant that the sentences pronounced by judges bore
little resemblance to the sentences
actually served by offenders. Consequently, the public began to lose
confidence in the ability of its
criminal justice system to adequately address issues of crime and
punishment.
The spike in the crime rate experienced nationwide in the 1980’s,
the rapid growth of the prison
population, and the absence of an
established mechanism to plan for
and meet the needs of the criminal
justice system for prison facilities
led to an overcrowding problem of

(CONTINUED)

dramatic proportions in North Carolina. Overcrowding in the State’s
prisons caused intolerable living
conditions – inmates were routinely
stacked three levels high in bunks
crowded tightly together, with an
associated diminution in the availability of programs and services,
and ever-escalating incidents of
violence harming prisoners and
staff. The threat of federal intervention meant that overcrowding in
North Carolina’s prisons could no
longer be ignored.
By 1985, overcrowding had
spawned litigation such as Small
v. Martin (No. 85-987-CRT,
E.D.N.C.). In that case, the inmate
plaintiffs asked the federal court to
declare that the overcrowded conditions in 48 of the State’s 97
prisons amounted to cruel and
unusual punishment in violation of
the Eighth Amendment. Companion cases made the same challenge
in other North Carolina prisons.
The Legislature eventually came
to understand that the plaintiffs
might well be successful in their
challenges and launched a plan to
circumvent federal intervention.
North Carolina Responds:
Limit the Demand
Since prisons could not be built
immediately and without great
cost, the Legislature initially
sought ways to reduce the prison
population. In 1985, the General
Assembly enacted the Emergency
Powers Act, giving the Parole
Commission power to release some

felons 180 days before their established release dates. N.C. Gen.
Stat. §15A-1380.2(h).
In 1987 the Legislature passed the
Emergency Prison Population
Stabilization Act. N.C. Gen. Stat.
§148-4.1. The act established a
formula for setting a “prison cap,”
limiting the population. The Act
also gave the Parole Commission
the authority to release enough
offenders to stay within the prison
population cap, but prohibiting the
early release of those sentenced for
certain crimes requiring the service
of a minimum sentence prior to
parole eligibility (such as the
offense of robbery with a dangerous weapon). N.C. Gen. Stat.
§14-87.

Although North Carolina
could adopt either means
of constitutional
compliance, there are
sound policy reasons to
reject a remedy such as
the Supreme Court
fashioned in Booker.

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The Parole Commission, operating under a legislative mandate to
maintain the prison population at or
below the limits established by the
prison cap, granted early release to
more and more offenders. During
that time, some classes of felony
offenders served less than twenty
percent of the sentence originally
imposed in their cases. In addition,
only limited community corrections
alternatives to incarceration existed
prior to 1994, and those programs
soon began to break down at the
most fundamental level. Because a
defendant could refuse probation
and elect to serve his sentence,
many of those convicted and placed
on probation opted to go directly
to prison, knowing that their early
release, particularly for low-level
felony convictions, would be
almost immediate.
North Carolina Responds,
Part II: Increase Supply
The temporary measures employed
by the Legislature to limit the
demand for prison beds came at a
cost. There was a strong public
outcry about the “revolving door”
of the criminal justice system.
Victims of crime complained bitterly and publicly about offenders
who were often released in months
instead of the years they received at
sentencing. Prosecutors and judges
themselves expressed surprise and
disbelief when they learned that
offenders were released after serving much shorter sentences than
they received.

These complaints had an impact
on the General Assembly, but the
threat of a federal takeover of the
State’s prisons brought urgency to
plans for prison expansion. When
the State settled Small v. Martin in
March of 1989 the immediate
threat of federal intervention
passed. However, the settlement in
Small obligated the state to eliminate triple bunking and to provide
50 square feet of living space per
inmate by specified dates. To meet
those requirements, prison expansion had to be part of the equation.
In its initial attempt at major prison
capacity expansion, the General
Assembly placed on the ballot a
$200 million bond referendum for
prison construction. The referendum passed by less than one-half
percent of the voting electorate.
From that narrow margin it could
be inferred that either North
Carolina’s citizens had limits to
what they were willing to spend
on prison expansion, or they did
not understand and appreciate the
constitutional constraints on prison
overcrowding.
The crisis experienced in the
1980’s and early 1990’s convinced
many of North Carolina’s legislators that only broad-based change
in sentencing practices could
prevent future problems. The
Structured Sentencing Act was the
eventual result of this legislative
conclusion.

North Carolina Responds,
Part III: Systemic Change
By 1990 the search for a more
rational approach to the development of criminal justice policy
spurred the General Assembly to
create the North Carolina Sentencing and Policy Advisory Commission. The Commission was to
make recommendations regarding
State criminal sentencing policies.
The 23-member Commission represented virtually every constituency with an interest in sentencing.
(The Commission’s membership
encompasses the prosecutorial,
defense and adjudicatory functions,
correctional perspectives, law
enforcement leaders, victims’ and
prisoners’ advocates and others.)
After three years of considering
possible alternatives, the Commission submitted their recommendation that North Carolina adopt
a determinate sentencing model.
In 1993, the General Assembly
reviewed and revised those recommendations, enacting The Structured Sentencing Act which applies
to almost all felony and misdemeanor crimes committed on or
after October 1, 1994.
The goal of Structured Sentencing was to help the State maintain
control over the criminal justice
system and to restore credibility to
sentencing, exactly the areas where
North Carolina’s indeterminate sentencing policy had failed. Under
The Structured Sentencing Act, a
defendant must serve all of a mini(Continued on Page 13)

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mum sentence from which there is
no parole, so the sentence is always
“truthful.” Because there is little
latitude for the exercise of judicial
discretion, and consequently little
deviation from prescribed sentences, it is possible to predict the
number of prison bed spaces that
will be required. Thus, the Act
prioritizes the use of
correctional resources
and balances sentencing policies with correctional capacity.

• Sentencing policies should set
resource priorities: Sentencing
policies should be supported by
adequate prison, jail and community-based resources. The use of
prisons and jails should be prioritized first for violent and repeat
offenders and community-based
programs should be first utilized

The Structured Sentencing Act is based
on the following principles:
• Sentencing policies
should be rational:
The sentence should
be proportional to the
severity of the crime
as measured by the
harm to the victim and
to the offender’s prior
record.
• Sentencing policies should be
truthful: The time actually served
in prison or jail should bear a close
and consistent relationship to the
sentence imposed by the judge.
Early parole release should be
abolished.
• Sentencing policies should be
consistent: Offenders convicted of
similar offenses, who have similar
prior records, should generally
receive similar sentences.

for non-violent offenders with little
or no prior record.
Structured Sentencing:
Core Principles Work
As a result of Structured Sentencing, the rise of the prison population in North Carolina has been
managed rationally. The staff of
the Commission makes prison
population projections on an annual
basis, using a computer simulation
model. These projections predict
prison space needs for 10 years into
the future, and have proven

remarkably accurate. In recent
years, armed with the knowledge
that Structured Sentencing provides
and with confidence in the accuracy
of the predictions made by the
Commission’s staff, the Legislature
has authorized construction that
will increase prison capacity by
2,700 beds by 2008 to meet the
Commission’s population projections.
Other outcomes of
Structured Sentencing
include: individuals
convicted of serious
felonies are serving
longer sentences;
“truth” has been introduced into sentencing
practices; community
correction and alternatives to incarceration
are now important
parts of the criminal
justice system; and the
public perception of
crime and punishment
has greatly improved since the
“revolving door” days of the late
80’s and early 90’s.
With Structured Sentencing, North
Carolina introduced fiscal discipline to sentencing policy. Other
states have passed similar types
of sentencing policies, but North
Carolina is perhaps unique in
making fiscal responsibility a part
of every sentencing decision. The
Commission’s data on how much
the system will be affected by
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proposed changes in the law has
been extremely reliable. Every
bill proposing a new crime, or
proposing a harsher penalty for an
existing crime, is now analyzed
to determine its actual cost, both
in terms of dollars and cents, and
its projected impact on the prison
population. The sobering realities
of this analysis have brought fiscal
responsibility into the process of
modifying sentencing policy.
A Booker Remedy?:
Not for North Carolina
As noted above, one approach to
compliance with recent Supreme
Court cases would be simply
to enact legislation that would
broaden the range of available
sentencing options for conviction
of a crime to encompass the lowest
possible minimum sentence and
the highest possible maximum
sentence, essentially converting Structured Sentencing into an
indeterminate sentencing scheme.
The adoption of such a remedy,
the “Booker remedy,” would have
adverse affects on North Carolina’s
sentencing policy and our criminal justice system. In many ways,
North Carolina would be taking
a step backward, returning to the
unpredictable and unstable model
of indeterminate sentencing that
existed prior to 1994.
For example, consistency of sentencing, a cornerstone of Structured
Sentencing, is likely to suffer if a
Booker remedy is adopted in North
Carolina. Judges would have

much greater discretion, which
may be desirable, but with broader
judicial discretion, the sentences
imposed upon similarly situated
defendants could vary from judicial district to judicial district, and
even from judge to judge within
judicial districts. Consequently, it
would be difficult or impossible to
accurately predict the needs of the
correctional system. Sentencing
practices would once again be subject to attack and the integrity of
the criminal justice system would
suffer.
The North Carolina Sentencing and
Policy Advisory Commission now
has over 10 years of experience in
predicting the impact of legislation against crime in terms of cost
to the public. This cost analysis
includes the projected impact of
proposed legislation on prison beds
and growth of the prison population. Those projections have
been remarkably accurate, always
within two percent of the actual
prison population. Because of
the accuracy of those predictions,
State lawmakers have not had to
guess how much prison space will
be needed in the future and have
been able to plan accordingly. If
a Booker remedy were adopted, it
might not be possible to accurately
predict growth in the prison population, and it certainly would not be
possible in the short- to mid-term.
As a result, the ability to set priorities and to make rational decisions
about criminal justice policy could
be significantly compromised.
In the worst case scenario, a

Booker remedy could lead to the
same quagmire that existed prior
to Structured Sentencing. Overcrowded prisons and the inability to
forecast the need for prison space
could leave the State no choice
but to take emergency action to
control the prison population. The
State might respond by re-instituting parole, prison caps, and early
release. In that event, “truth in
sentencing” could also become a
casualty of a Booker remedy.
Some might argue that these
drastic consequences might not
eventuate, or if they did, that the
State might be able to overcome
the adverse affects of a Booker
remedy. However, when relatively
minor adjustments to Structured
Sentencing can meet the constitutional requirements of Blakely, the
sounder policy is to reject a Booker
approach as a remedy in North
Carolina.
A Blakely Refinement:
The Best Response for North
Carolina
In 2004, at the request of the General Assembly, the North Carolina
Sentencing and Policy Advisory
Commission addressed how North
Carolina might best address the
requirements of Blakely. Pending
Senate Bill 542 generally reflects
the Commission’s recommendations.
The major components of the bill
are:
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• Non-statutory aggravating factors must be pled in the indictment;
• Twenty days notice to the defendant of statutory aggravating factors;
• Jury trial of
aggravating factors, determined by
application of the
“beyond a reasonable doubt” standard.

The U.S. Supreme Court has never
construed the Fifth Amendment
right to “presentment or indictment
of a Grand Jury” as a right applicable to state court defendants.
But the Court has held that the
right to be “informed of the nature

What's
Right

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For North '.

The bill provides
that aggravating
factors can be tried
as part of the State’s
case-in-chief, unless
to do so would prejudice the defendant.
The trial judge may
order a separate jury
trial on aggravating factors that could otherwise
prejudice defendants if tried in the
guilt/innocence phase.

These changes would comply with
the requirement of Blakely that
“any fact (other than prior conviction) that increases the maximum
penalty for a crime must be submitted to a jury and proven beyond
a reasonable doubt.” Blakely v.
Washington, 1 24 S.Ct. 2531, 2536
(U.S., 2004) citing, Apprendi v.
New Jersey, 530 U.S. 466, 490,
147 L.Ed.2d 435, 120 S.Ct. 2348
(2000).

a defendant’s Sixth and Fourteenth Amendment right to notice
“of the nature and cause of the
accusation.” And requiring that
aggravating factors be found by
a jury beyond a reasonable doubt
would comply with the holdings in
Apprendi and Blakely.
If these modest
recommendations
of the Commission
are enacted, then the
model that has worked
well for years in North
Carolina can remain
in place.
Conclusion

and cause of the accusation” is a
part of a state court defendant’s
rights under the Sixth and Fourteenth Amendments. Faretta v.
California, 422 U.S. 806, 819, 95
S.Ct. 252, 45 L.Ed.2d 562 (1975).
Though “notice” is not addressed
specifically by Blakely or Apprendi,
due process is at the heart of both
decisions. Indeed, if a fact must
be proven to a jury “beyond a
reasonable doubt,” then it would
seem axiomatic that the state must
provide notice to the defendant of
such a fact.
The notice provisions of the
bill would be consistent with

Clearly, North Carolina will have to
adjust its sentencing
practices. Relatively
simple refinements
to Structured Sentencing would comply with the
requirements of Blakely, mooting
the necessity to adopt a correlative
remedy like that imposed on the
federal system by Booker. Leaving
the legal analysis aside, there are
sound policy reasons to adopt these
refinements and preserve Structured Sentencing as a determinative
sentencing scheme in North Carolina. While acknowledging that
legislatures do not always act in
logical or predictable fashion, the
likelihood is that North Carolina’s
policymakers will opt for the alternative represented by Senate Bill
542 rather than a Booker remedy.

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