The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume III, Issue 2, May 2003

ACCESS

FOUR-POINT RESTRAINT POLICY TO CHANGE
by Staff Attorney Elizabeth Hambourger

The Department of Correction will
soon issue a new policy governing
the use of four-point restraints after
two inmates filed lawsuits challenging the way the restraints were
used at Central Prison’s Unit One.
Goins v. Lee, et al.
(E.D.N.C. 5:01-CT362-BO); Alston v.
Bennett, et al. (E.D.
N.C. 5:01-CT-648BO). Plaintiffs complained that they had
each been restrained
on their backs with
their arms chained
above their heads for
48 hours.
The lawsuits were
filed pro se, and the
United States District
Court for the Eastern
District of North Carolina ordered
NCPLS to investigate the inmates’
claims. The challenged policy provided that the Area Administrator,
Institution Head, or a person designated by either official could order
inmates restrained for up to 48
hours. Inmates were to be released
from restraint every three hours on
the first and second shifts to eat and
to take care of bodily functions.
On the third shift, the restrained
inmate had to request release in
order to use the bathroom. The
investigations revealed that Central Prison officials were using this
policy routinely to restrain inmates

for the full 48 hours, even if the
inmate’s behavior improved while
he was restrained.
Upon completion of the investigations, NCPLS attorneys Linda

• The decision to restrain must be
made by the facility head only after
a determination that less restrictive efforts at control have failed or
would fail;
• Soft restraints must
be used to restrain the
inmate until such restraints prove ineffective;
• The inmate’s hands
will be restrained no
higher than the sternum (chest) rather
than above the head;

Weisel, Susan Pollitt, and Elizabeth Hambourger entered Notice
of Appearance and filed amended
complaints alleging that the policy
was cruel and unusual punishment
in violation of the Eighth Amendment and amounted to summary
punishment in violation of the Due
Process Clause of the U.S. Constitution. Plaintiffs sought to change
the policy.
In a settlement reached with the
DOC, some meaningful revisions
to the policy were agreed upon,
including:

• So that the inmate
may be released from
the restraints as soon
as possible, a review
of the inmate’s placement in restraints will
be made by the Officer in Charge
(Continued on Page 2)
In this Issue:
Four-Point Restraint Policy to Change

1

IMPACT Update: NCPLS Continues to Help
Inmates Get Credit For Time Spent in
IMPACT

2

General Assembly Considers Temporary
Halt to Executions

3

Reep Update: Appeal Filed

3

Troubled Youth in Crisis: North Carolina’s
System of Juvenile Justice

4

North Carolina Supreme Court Denies
Review of Sentence Reduction Credits
for FSA Class C Lifers

6

NCPLS Senior Attorney Linda B Weisel
Honored

6

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
Jim Blackburn
James A. Crouch, Esq.
Paul M. Green, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.P.A.
Fred Williams, 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 III, Issue 2, May 2003

FOUR-POINT RESTRAINT POLICY TO CHANGE
(Continued from Page 1)

(OIC) every two hours to determine if the restraints have had the
desired calming effect. The OIC
must visually observe the inmate
to make this decision. The inmate
will be released from the four-point
restraints at the earliest possible
time when the inmate, in the opinion of the OIC, no longer exhibits
behavior that necessitates restraint;
• At every two-hour review, the
inmate will be allowed to use the
toilet and to stretch briefly;
• The Regional Director and the
Division Duty Officer must be

notified if the inmate is kept in
restraints for more than eight hours.
NCPLS entered Notice of Appearance in Goins v. Lee, et al., on
October 1, 2001. In the eleven
months prior to that date, there
were 25 restraint incidents at Central Prison on Unit One. In the
eleven months after October 1,
2001, there were just 6 incidents in
which four-point restraints were
applied. These lawsuits were
instrumental in changing the fourpoint restraint policy for the entire
DOC and improving correctional
practices under the policy.

IMPACT UPDATE: NCPLS CONTINUES TO HELP
INMATES GET CREDIT FOR TIME SPENT IN IMPACT
By Senior Attorney Susan H. Pollitt

ACCESS readers may recall that, in
August 2002, the N.C. Supreme
Court ruled that the time spent in
IMPACT (Intensive Motivational
Program of Alternative Correctional Treatment) must be credited
against an inmate’s activated sentences. State v. Hearst, 356 N.C.
132, 567 S.E. 2d 124 (N.C. 2002).
Since that decision, NCPLS has
worked hard to make sure inmates
receive the credit to which they are
entitled. The DOC has helped by
providing lists of inmates in prison
who participated in IMPACT.
NCPLS and the DOC agree that no
inmate should spend a single day in
prison beyond the lawful term of
incarceration. Working with the
DOC, NCPLS has been able to
identify and get relief for many of
our clients. We previously reported
that we helped to obtain IMPACT

credit for 218 inmates, 63 of whom
were immediately released. During
March and April 2003, NCPLS
paralegals obtained orders for an
additional 49 inmates. These inmates received awards of credit
totaling 4,486 days. (NCPLS occasionally finds that an inmate is also
entitled to additional jail credit
during the investigation.) So far,
this work has saved our clients
more than 19,486 days in prison.
There are still inmates in prison,
and some who are entering prison,
who have not received credit for
the time they spent in IMPACT.
Only a judge can award credit for
IMPACT. If you went to IMPACT
and do not believe you received
credit for that time against your
active sentence, you can get help
by writing to NPCLS. You should
act promptly to protect your rights.

Volume III, Issue 2, May 2003

NCPLS ACCESS

GENERAL ASSEMBLY CONSIDERS
TEMPORARY HALT TO EXECUTIONS
On April 30, 2003, the North Caro- The State House of Representatives
lina Senate passed a bill that would will take up the bill in the weeks to
come. House Speaker Jim Black
halt executions during a two-year
study of the death penalty. The bill has already expressed support for
was introduced by Senator Eleanor the measure, and informal counts
G. Kinnaird. It was supported by a show that about 40 other lawmakers favor the initiative. A majority
coalition of citizens and advocacy
vote will require the support of
groups, including most notably,
sixty-one Representatives.
People of Faith Against the Death
Penalty. According to Kinnaird,
If the
“This has
measure
been one
passes, it
of the
will go to
most
the Goveffective
ernor, a
grassroots
former
efforts –
district
people
attorney
who
who is on
watch the
record
legislative
opposing
process
a morahave
torium.
never seen
The Govanything
ernor has
like it.”
not comSupportThe General Assembly
mented
ers colon the specific bill passed by the
lected more than 40,000 petitions
Senate.
in support of the moratorium.
Supporters of the moratorium are
concerned that the death penalty
disproportionately affects racial
minorities and the poor. Supporters
also contend that capital convictions are too often unreliable, as
demonstrated by recent cases in
which murder convictions have
been overturned. District attorneys
and others view such reversals as
evidence that the system is working and contend that the bill is a
“Trojan Horse” designed to eliminate the death penalty.

If the moratorium becomes law, a
two-year study will be conducted
to examine a number of issues,
including the reliability of murder
convictions, prosecutorial practices
regarding the disclosure of evidence helpful to defendants, and
whether the death penalty is imposed fairly. There are presently
202 people on North Carolina’s
death row.

Page 3

REEP UPDATE:
APPEAL FILED

By Assistant Director James W. Carter

Readers of ACCESS may recall that
NPCLS filed a class action lawsuit
alleging that DOC violates N.C.
Statutes by failing to apply earned
but unused sentence reduction
credits when post-release supervision is revoked. Reep v. Beck, et
al., 02 CVS 16880 (Wake County
Superior Court). The case was
dismissed on mootness grounds
by the Honorable Evelyn W. Hill,
Superior Court Judge, on February
18, 2003. In March 2003, NCPLS
filed a notice of appeal in the case.
In its brief to the N.C. Court of
Appeals, NCPLS argues that the
case falls within well recognized
exceptions to the mootness doctrine
and that the case should be allowed
to proceed to a ruling on the merits.
The claim presented in this case is,
by its very nature, short-lived, and
it is unlikely that any given plaintiff could have a legal challenge
decided before completion of the
term of incarceration imposed upon
the revocation of post-release
supervision. (In other words, an
inmate would complete the sentence before a court could decide
the issue.) In the meantime, people
who are similarly situated will be
subjected to the allegedly illegal
actions of the defendants. Thus,
the claim is “capable of repetition,
yet evading review.” NCPLS also
argues that the case involves is a
matter of public interest and should
be promptly resolved.
Developments in this case will be
reported in future issues of ACCESS.

NCPLS ACCESS

Page 4

Volume III, Issue 2, May 2003

TROUBLED YOUTH IN CRISIS: NORTH CAROLINA’S
SYSTEM OF JUVENILE JUSTICE
SWANNANOA VALLEY
YOUTH DEVELOPMENT CENTER
Last autumn, allegations surfaced
that children in custody of the State
were being subjected to serious abuse and deprivation at
the hands of those charged with
their care. An investigation
into these allegations generated
intense scrutiny of the
Swannanoa Valley Youth Development Center, both by attorneys, the press, and by the
North Carolina Department
of Juvenile Justice and Delinquency Prevention, the Center’s
“parent agency.” As some of
these allegations were corroborated, the Department took
prompt action to replace the
facility’s leadership and to correct the problems. Those efforts
forestalled institutional
reform litigation, but a number
of lawsuits were brought on
behalf of individual children
who had been mistreated and
abused. In one case, for example,
the parents of one child brought
suit to recover monetary damages for the injuries they and their
child sustained. John & Jane Doe
4, individually and as guardian
ad litem for John Doe 4, a minor
child v. Swannanoa Valley Youth
Development Center, et al., N.C.
Industrial Commission (2002). In
the complaint, the parents allege
that “the Defendants knew or in the
exercise of professional judgment
should have known that the lack of
sufficient staff, inadequate and inappropriate polices and inadequate
and inappropriate training of staff
led to a lack of control in the facili-

ties and resulted in the escalation
of physical and sexual violence by
aggressive juveniles [and predation
by staff.]” Id. These events drew
a great deal of attention and con-

siderable public concern about the
way we treat troubled youth.
A TOUGHER APPROACH
TO JUVENILE JUSTICE
On July 1, 1999, North Carolina’s
new juvenile code went into effect.
For crimes committed after that
date, the new code significantly altered the legal standard that guides
proceedings in juvenile court. In
the past, actions were based on the
best interest of the child. Under the
new code, the primary concern is
the protection of the community.
N.C. Gen. Stat. 7B-1500 and
7B-2500. Two important features
of the new code have changed

practices in juvenile court. First,
juvenile proceedings are no longer
guaranteed privacy into adulthood.
This means that juvenile adjudications can be used to impose a stiffer
sentence in subsequent criminal
proceedings. N.C. Gen. Stat.
7B-3000(f). Secondly, the new
sentencing grid in juvenile
court is based on the juvenile’s
history of delinquency and
imposes limits upon a judge’s
options for disposition of any
particular case. N.C. Gen. Stat.
7B-2507 and 2508. Indeed, in
some cases, the code requires a
juvenile to be incarcerated for
periods longer than an adult
convicted of committing the
same crime. N.C. Gen. Stat.
7B-2513(a)(3).
Children as young as 10 years
of age can be committed to the
Department of Juvenile Justice
and Delinquency Prevention.
N.C. Gen. Stat. 7B-2513(a).
And children as young as 13 years
of age can be prosecuted as adults.
N.C. Gen. Stat. 7B-2200.
JUVENILES IN DETENTION
During 2002, nearly 600 juveniles
were detained in “development
centers.” Among this population of
children, a high percentage suffers
from mental illness, severe emotional disturbance, and serious behavioral problems. “[A] disproportionate number of suicides and
attempted suicides by detained
juveniles have occurred (as compared with incarcerated adults), and
(Continued on Page 5)

NCPLS ACCESS

Volume III, Issue 2, May 2003

Page 5

TROUBLED YOUTH IN CRISIS
(CONTINUED)

(Continued from Page 4)

children are often extremely distraught about incarceration.” Legal
Issues and Liabilities in Juvenile
Confinement Facilities, p. 23,
Youth Law Center (1999).
Children who are detained, either
pending disposition of charges, or
after adjudication, must be provided a range of services, including
mental health care. See, e.g., Ruiz
v. Estelle, 503 F. Supp. 1265 (S.D.
Tex. 1980), aff’d in part and
vacated in part, 679 F.2d 1115 (5th
Cir.), amended in part, 688 F.2d
266 (5th Cir. 1982), cert. denied,
460 U.S. 1042 (1983). See also,
Ramos v. Lamm, 639 F.2d 578
(10th Cir. 1980), cert. denied, 450
U.S. 1041 (1981) (where 5-10%
of inmates were mentally ill and
10-25% needed mental health treatment, a 2 to 5 week wait for services from mental health staff was
constitutionally inadequate).
Basic components of an adequate
system for the provision of mental
health services include: (1) systematic screening and evaluation of
inmates for suicidal ideation and to
determine mental health needs; (2)
basic treatment services; (3) employment of a sufficient number of
trained mental health professionals
to meet the need; (4) maintenance
of accurate, complete, and confidential mental health records; and
(5) the administration of psychotropic medication with appropriate
supervision and periodic evaluation. Coleman v. Wilson, 912 F.
Supp. 1282 (E.D. Cal. 1995). See
also, Madrid v. Gomez, 889 F.
Supp. 1146 (N.D. Cal. 1995).

TOUGH BUDGETARY TIMES
In recent years, North Carolina has
faced hard times requiring difficult
choices for the expenditure of
public funds. For example, in
2002, expenditures were slashed
by $1 billion, and an additional
$946 million in spending was redirected. The cuts largely impacted
social services, especially those
targeted to people in custody of the
State. For example, the Department of Juvenile Justice and
Delinquency Prevention sustained
budget cuts in excess of $400 million. This year, the Legislature
faces a budget deficit that is presently estimated at $1.6 billion, but
it could reach $2.2 billion.
In the meantime, a justice system
that places over-reliance upon incarceration imposes ever escalating
costs. According to the North Carolina Department of Correction, it
costs an average of $65.29 per day
to imprison an adult offender in
2001. North Carolina has a prison
population of more than 33,000,
and the North Carolina Sentencing
and Policy Advisory Commission
projects an increase of about 2%
per year for the foreseeable future.
Even with significant reductions in
recent appropriations, we spend
more than $900 million a year on
corrections. The increasing population will require millions more in
construction and operational costs
at a time of fiscal crisis in our State,
and across the country.
However, courts have not found
budgetary problems to justify the

violation of constitutional rights,
nor to excuse their remediation.
See Ramos v. Lamm, 639 F.2d 559,
574, n. 19 (10th Cir. 1980), cert.
denied, 450 U.S. 1041 (1981);
Wilson v. Seiter, 501 U.S. 294, 301302 (1991).
The investment to provide services
for incarcerated people is sound
public policy, even during tough
budgetary times. Countless studies
have shown that treatment and education are effective in reducing
recidivism and preparing offenders
to lead law-abiding lives. An ongoing study being conducted by the
Correctional Education Association
provides additional support. In its
fourth and final year, the study
suggests that funds used to provide
inmates such services actually save
the public twice the cost in reduced
rates of recidivism. Study Finds
Value in Inmate Education, Jamie
Stockwell, Washington Post Staff
Writer, Nov. 23, 2000, p. M21.
CONCLUSION
Troubled youth in North Carolina
are at a crossroad. At the intersection, the path to a productive life
may be blocked by neglect, abuse,
mental illness, severe emotional
disturbance, serious behavioral
problems, or other disabilities.
There can be no more productive
investment for the people of North
Carolina than providing these
children the help they need to overcome these obstacles, giving them
a chance for a meaningful and productive life.

NCPLS ACCESS

Page 6

Volume III, Issue 2, May 2003

NORTH CAROLINA SUPREME COURT DENIES REVIEW OF
SENTENCE REDUCTION CREDITS FOR FSA CLASS C LIFERS
By Senior Attorney Susan H. Pollitt

On May 2, 2003, the North Carolina Supreme Court decided not to
review the decision of the North
Carolina Court of Appeals in the
cases of Teasley v. Beck and Bates
v. Beck, ___ N.C. App. ___, 574
S.E.2d 137 (N.C. App. 2002). As
amicus cuirae (friend of the court),
NCPLS had filed a petition urging
the North Carolina Supreme Court
to review the Court of Appeals
decision in Teasley/Bates.
The parole eligibility date for a
Fair Sentencing Act (FSA) Class C
life sentence is reduced by good
time, unlike the parole eligibility
date for an FSA Class A or B life
sentence. In the Teasley/Bates
cases, the Court of Appeals held
that persons serving an FSA Class
C life sentence are not entitled to
have their parole eligibility dates
reduced by gain and merit time
they earn. The Court of Appeals
held that N.C. Gen. Stat. 15A1355, and not DOC regulations, is
the controlling authority for the
application of good time to FSA
Class C life sentences. The Court
of Appeals held further that the
DOC regulations do not entitle per-

sons serving a FSA Class C life
sentence to gain or merit time.
N.C. Gen. Stat. 15A-1355 concerns
the calculation of prison sentences.

Subsection (c) provides:
“(c) (Effecitve until January 1,
1995) Credit for Good Behavior.
- The Department of Correction
and jailers . . . must give credit for
good behavior toward service of a
prison or jail term imposed for a

felony that occurred on or after the
effective date of Article 81A, as
required by G.S. 15A-1340.7. The
provisions of this subsection do not
apply to persons convicted of Class
A or Class B felonies nor to persons sentenced to a term of special
probation . . .. The Department of
Correction and jailers may give
time credit toward service of other
prison or jail terms imposed for a
felony or misdemeanor, according
to regulations issued by the Secretary of Correction . . ..”
The Court of Appeals also held that
the DOC was correctly aggregating
parole eligibility for people who
have an FSA life sentence followed
by a consecutive term-of-years
sentence. The DOC only applies
sentence reduction credits earned
after the life sentence parole
eligibility period is met. The
plaintiffs in Teasley/Bates and
NCPLS unsuccessfully argued that
this practice amounts to a type of
“paper parole,” violating the rule
announced in Robbins v. Freeman,
127 N.C. App. 162, 487 S.E. 2d
771, aff’d per curiam, 347 N.C.
664, 496 S.E. 2d 375 (1998).

NCPLS SENIOR ATTORNEY LINDA B. WEISEL HONORED
Every year, the North Carolina Bar
Association’s Outstanding Legal
Services Attorney Award is presented to a legal services attorney
making an exemplary contribution
to the provision of legal assistance
to help meet the needs of impoverished North Carolinians. This
year, NCPLS Senior Attorney

Linda B. Weisel, has been named a
co-recipient of the award.
For almost 17 years, Linda has
been an attorney with NCPLS.
During that time, she has represented literally thousands of inmates
in administrative proceedings and
in litigation to improve medical

and mental health care, living conditions, and to correct unlawful
convictions and illegal sentences.
Linda has been involved in federal
class action litigation involving
complex legal issues, and she has
represented clients in all state and
federal courts in North Carolina.
(Continued on Page 7)

Volume III, Issue 2, May 2003

NCPLS ACCESS

Page 7

NCPLS SENIOR ATTORNEY LINDA B. WEISEL HONORED
(CONTINUED)

(Continued from Page 6)

ber of NCPLS attorneys over a
four-year period to address serious
problems in the delivery of health
Linda is a knowledgeable resource services to incarcerated women. In
a 30-page complaint, plaintiffs outin the law governing the rights of
lined life-threatening deficiencies
inmates. Her learning extends bein the health care services that
yond civil rights and the law governing collateral challenges to con- affected about 30 women, including allegations of prescriptions for
victions to encompass workers’
contra-indicated medication, syscompensation law as it applies to
inmates, as well as some aspects of temic breakdowns in continuity of
care, and deliberate indifference to
immigration law. Additionally,
the serious medical needs of
Linda is highly regarded for her
inmates. Preparing the complaint
experience in appellate advocacy
alone involved countless client
and her excellent writing skills.
interviews and reviewing thousands
Linda has also accomplished much of pages of medical records and
other documents over a period of
for our clients through administrative advocacy, and when necessary, months. Although the complaint
was initially answered with threats
through litigation. For example,
she successfully represented a class of Rule 11 sanctions, over time,
Linda and her team were able to
of Hispanic inmates when prison
demonstrate the existence of seriregulations prohibited delivery of
ous, life-threatening problems. The
letters written in Spanish. In anlawsuit brought about the resigother case, Richardson v. N.C.
nation of the Director of Health
Department of Correction, 345
Services, a comprehensive review
N.C. 128, 478 S.E.2d 501 (1996),
of policy, procedure, protocol, and
she tried to convince the State
Supreme Court that a prisoner who the implementation of a number of
lost his leg when he was injured on ameliorative measures. After more
a prison job should be permitted to than four years of litigation, Linda
seek damages for negligence, rather and present co-counsel, Susan H.
Pollitt, employed a creative stratthan being relegated to the paltry
egy to settle the case based upon
sum of $30 per week provided by
the recommendations of an indethe Workers’ Compensation Act.
pendent consultant. The parties
agreed to hire a physician who had
Another example of Linda’s outexperience in the delivery of health
standing advocacy is the case,
services to inmates, and further
Thebaud v. Jarvis, No. 5: 97-CT463-BO, a federal class action law- agreed to be guided by the expert’s
recommendations for resolving the
suit challenging the delivery of
remaining issues in the lawsuit.
health care services at the North
That approach led to further imCarolina Correctional Center
provements in protocols, policy
(NCCIW) for Women. As lead
counsel, Linda worked with a num- and procedure in the delivery of
In all of this work, she has been
remarkably successful.

women’s health care at NCCIW,
including changes in pap smear and
mamogram policies. This provided
the basis for a settlement of the
class action litigation. Compliance
is being monitored, but it is clear
that the team’s work in this case
has benefited hundreds of women.
More recently, Linda appeared as
amicus curiae (friend of the court)
in Harris v. Thompson Contractors,
Inc., No. 122PA02 (NC S.Ct. February 28, 2003). In this case, Linda
successfully argued in her brief that
an inmate who is injured on a work
release job is entitled to the benefits
of the Workers’ Compensation Act.
This victory will benefit literally
thousands of inmates as they continue to develop marketable skills
and learn the discipline required to
succeed in the transition to life in
free society.
Linda’s commitment to social justice can be seen, not only through
her work at NCPLS, but also in
her involvement in the broader
community. For example, she has
served as a member of the Board of
Directors for the Carolina Justice
Policy Center for over a decade.
Linda consistently produces excellent work. She is respected for her
knowledge, and is highly regarded
for her probing analysis and good
judgment. All of these qualities,
combined with her long and distinguished service to North Carolina
inmates, show that she is an excellent choice for the North Carolina
Bar Association’s Outstanding
Legal Services Attorney Award.

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

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