The Newsletter ofNOIth Carolina Prisoner Legal Services, Inc.

NCPLS

ACCESS
IMPACT Credit:

Department of Correction Acts Quickly to Comply
with Ruling of State Supreme Court in Hearst
By Mmwging Attorney Kar; L. Hamel & Senior Attomey SIIS"" H. Pollitt

Since the establishment of the program, the time spent in Intensive
Motivational Program of Alternative Correctional Treaunent
(IMPACT) has been credited
against tenns of imprisonment.
Occasionally, either because of
misunderstanding or oversight, an
inmate would not receive credit

against his sentence. In such cases,
NCPLS could help to correct the
problem by filing a Illotion for
IMPACT credit on behalf of our

clients. Those Illotions were
routinely granted. In recent years,
however, some judges reportedly
denied IMPACT credit, which
caused uncertainly in the law.
With a recent decision of the North
Carolina Supreme Court, there can
no longer be any question thai
inmates arc entitled to credit for
time they spent at IMPACT. In
State ofNorth Carolina v. William
Amhony Hearst, No. 684PAOI
(N.c. S.Ct., filed Aug. 16,2002),
the Court nl1ed that a defendant
whose suspended sentence was
activated was entitled to credit
under N.C. Gen. Stat. § 15-196.1
for time spent in the IMPACT program, reversing the lower court.
The North Carolina COllrt of
Appeals earlier mled against the
inmate in the Hearst case, and
consequently, new motions for

IMPACT credit had to be delayed.
Buncombe COllJlIY Assistant Public
Defender William H. Leslie represented the inmate in his appeal to
the State Supreme Court, and
appearing as amicus curiae (friend
of the court), NCPLS Attorneys
Kari Hamel and Susan Pollitt supported Mr. Leslie in successfully
arguing that the lower court decision in Hearst should be reversed.
(COli/iI/lied 011 page 2)

ns;iJe III;s.,s'"s"u"e":------.....
MPACT Credit: Depurtmen/o!
Correction Act.~ Quickly 10 Comply
K'ith Ruling of State Supreme COlli
in /fearst
tktainers in Immigratifm
Pmaedin.t:s
:,4meri"an Correctional Association
AdfJptS Sta"durd GOI'er"illg I"male
Telepho"e Sen'ice.\
Vo",n, s Prison Cluss Action Sellted
he Eq'fat Protection Clu'fse in tl,e
Prisolt COn/ext

J

NCPLS ACCESS

Page 2

(Continuedfrom page J)
ACCESS is a publication ofNorth

Carolina Prisoner Legal Services.
Inc. Established in ]978. NCPLS is a
non-profit. public service organization.
The program is govemed 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 Foresl and Campbell.
NCPLS serves a population of more
than 33.500 prisoners and 10,000 prelrial delainees, providing infonnation
and advice concerning legal rights and
responsibilities, discoumging frivolous
litigation, working toward administrative resolutions of legitimate problems. and providing repre~cntalion in
all State and federal couns to ensure
humane conditions of confinement and
to challenge illegal convictions and
sentences.

Board of Direcfors

Volume II, Issue 3, September 2002

IMPACT Credit

Now that the Supreme Court has
ruled that IMPACT credit must be
applied, CPLS will continue to
assist inmates in getting that credit.
Because people who have been
required to participate in the
lMPACT program generally
receive relatively short active sentences, IMPACT credit needs to be
calculated and applied before or
soon after admission to prison.
Otherwise, the inmate may end up
serving the entire sentence before
legal proceedings and the administrative process can be completed.
<In fact, with the cooperation of the
DOC, NCPLS has already identified approximately 150 inmates
who may be entitled to immediate
release under the Hearst case.)

Ln an effort to assist in identifying
inmates who may be eligible for,
but have not yet received IMPACT
credit, the DOC agreed to supply
NCPLS a list of all inmates who
may be eligible for the credit. The
DOC also agreed to post notices
in prison facilities across thc state.
That cooperation demonstrates the
Department's commitment to
comply with governing law, and it
means that many inmates will be
released who might otherwise have
been confined beyond the tenn of
incarceration lawfully imposed.

If you spent time at IMPACT and
you believe you were not provided
credit against your activated sentence for that time, you should
write to us at: NCPLS, P.O. Box
25397, Raleigh, IC 27611.

Detainers in Immigration Proceedings
By Senior AlTomey Kristin D. Parks

President, Gary Presnell
Senator Frank W. Ballance, Jr.
Jim Blackburn
James A. Crouch, Esq.
Professor Grady Jessup
Paul M. Green_ Esq.
Barry Nakell. Esq.
Susan Olive. Esq.
Professor Micbelle Robertson
Lou Ann Vincent, C.P.A.
Professor Ronald F. Wright
Professor Fred Williams

ACCESS IS publisbed

four times a

year. Articles. ideas and suggestions
are welcome and may be directed to

fsanders@ncpls.org.

Federal Immigration Court convenes about every two months at
Raleigh's Central Prison. Inmales
who have pending immigration
detainers are brought to court for
the disposition of those detainers.
The purpose of the proceeding is to
determine whether the inmate will
be deported. Often, these inmates
do not understand the nature of the
proceeding or their legal rights.
CPLS anorneys are on hand to
answer their questions and explain
their rights.
Generally, once a person has been
convicted of what is called an
"aggravated felony" (which includes most crimes pllIUshable by

more than one year of imprisonment) there is little that can be
done to prevent deportation upon
release from prison. The immigration laws treat people with criminal
convictions harshly. Signed into
law on April 24, 1996, the Antiterrorism and Effective Death Penalty
Act [Pub. L. 104-132, 110 Stat.
1214], eliminated many defenses
to deportation that had previously
been available to people convicted
of criminal offenses. If the conviction itself is valid, then deportation is often unavoidable. (Upon
request, NCPLS provides a legal
opinion concerning the validity of
(Continued 01/ page 4)

NCPLS ACCESS

Volume II, Issue 3, September 2002

Page 3

American Correctional Association Adopts
STANDARD GOVERNING INMATE TELEPHONE SERVICES
The American Correctional Association (ACA) is a national, multidisciplinary organization of
professionals representing all
levels and facets of corrections and
criminal justice. ACA establishes
standards governing correctional
practices and operations, and
accredits institutions that comply
with those standards. The ACA
Standards Committee is the body
that promuJgates standards which
reflect "best practices" for all types
of correctional facilities.
In early August of this year, the following standard was unanimously
adopted by ACA's Standards Committee at the Congress of Correction in Anaheim, CA:
"Written policy, procedure and
practice ensure that inmates!
juvenile offenders have access
to reasonably priced telephone
services. Correctional agencies
should ensure that:
A. Contracts involving telephone
services for inmates/juvenile
offenders comply with all appli·
cable state and federal regulations;

B. Contracts are based on rates and
surcharges that are commensurate
with those charged to the general
public for like services. Any deviation from ordinary consumer rates
should reflect actual costs associated with the provision of services
in a correctional setting; and
C. Contracts for inmate/juvenile
offender telephone services provide the broadest range of calling
options determined by the agency

administrator
to be consistent with the
requirements
of sound
correctional
management.
COMMENT

When procuring and
renewing telephone serices,
correctional
officials
should inquire
into the
reasons for
proposed
deviations
from standard
charges and
seek the best
possible rates
for the broadest possible
range of calling options
detennined
to be consistent with sound correctional management. Toll-free
calling and pre-paid or debit calling
are among options that should be
explored."
The adoption of this standard concluded deliberations that extended
for almost four years. But,
although this standard represents
the considered judgement of correctional professionals regarding
best practices governing inmate
telephone services, it is binding
only on those facilities and systems
that are accredited by ACA. None

of North Carolina's adult correctional facilities are accredited
by ACA, but ACA standards may
provide a persuasive reference [0
officials who consider renewing
the contract for inmate telephone
services.

[Editorial Note: NCPLS's Executive Director serves as a member of
ACA's Standards Committee and
was the proponent of the standard
described in this article.]

NCPLS ACCESS

Page 4

Detainers
(Continuedfrom page 2j

criminal convictions to people in
custody of the state of North Carolina, as well as legal representation
in challenges to invalid or illegal
convictions or sentences.)
Reccntly, however, NCPLS attorneys Wendy Greene and Kristin
Parks were successful in proving that a client from Guyana
was eligible for derivative United
States citizenship through his
mother. Proof of citizenship is
often difficult to obtain, but if it
can be proven, it is a defense to
deportation. In proving the case,
NCPLS gathered original documents, including birth certificates,
death certificates, and the client's
mothcr's naturalization records.
These materials were presentcd to
the INS District Counsel. Bccausc
the client's mother had become a
naturalized citizen before the client
twned 18 years old, and because
his father had died before our client
came to the United States, the
client was eligible for United States
citizenship through his mother.
The District Counsel agreed, and
the Immigration Judge issued an
Order tenninating the removal proceedings against the client. In the
Matter ofPersaud.

Volume II, Issue 3, September 2002

Women's Prison Class Action Settled
By Senior Attomeys Linda B. Weisel & Susan H Pollitt

After five years oflitigation, parties to a class action lawsuit have
reached a settlement in Thebaud
~ Jarvis, 5:97-CT-463-BO(3)
(E.D.N.C. 1997). Filed on June
10,1997, on behalf of all women
confined at the North Carolina
Correctional Institution for Women
(NCCIW), the complaint alleged
serious deficiencies in the delivery
of health care services to about 30
women and included allegations of
life-threatening prescriptions for
contra-indicated medication, systemic breakdowns in continuity of
care, and deliberate indifference to
the serious medical needs of
inmates in violation of the Eighth
and Fourteenth Amendments to
the United States Constitution. On
December 16,1997, thc Court
certified the case as a class action.
Following the favorable resolution
of summary judgment proceedings,
there was an extended period of
investigation and discovery, which
included the evaluation of thouands of documents and more than
30 depositions. That infonnation,
together with the assessments of
medical experts hired by the
parties, provided the basis for
settlement negotiations. The talks
resulted in a "Joint Resolution,"
which was approved by Chief District Court Judge Terrence Boyle of
the United States District Court for
the Eastern District of North Carolina, on July 8, 2002. The Joint
Resolution requires the following:

- The Defendants agree to use
their best efforts to maintain the
improvements in the health care
system at NCCIW that have bccn
accomplished during the course of
the litigation. Among other commitments, Defendants have agreed:
• to continue to seek money for
the expansion of the medical and
mental health facilities at NCCIW;
• to continue to notify inmates of
positive or negative HIV tests and
other positive test results; and
• to continue to use best efforts to
retain accreditation by the National
Commission for Correctional
Health Care.
The Defendants will also continuc
to conduct Quality Improvement
Reviews that include assessments
of the timeliness of treatment, the
chronic care program, medication
administration, the accuracy of
medical charts, and follow-up of
abnonnal mammograms and pap
smears.
The Defendants also agree:
• to modify medical OPUS to
automatically schedule annual callbacks for pap smears and screening
mammograms starting at age 50;
• to maintain a secure board outside the dining hall listing all
medical and mental health appointments;
(Continued on page 7)

PageS

NCPLS ACCESS

Volume II, Issue 3, September 2002

The Equal Protection Clause in the Prison Context
By StaffAttorney Ken BUller

The United States Federal Courthouse, Raleigh. NC

The Equal Protection Clause of the
Fourteenth Amendment to the U.S.
Constitution provides that "no
State shall ... deny to any person
within its jurisdiction the equal
protection of the laws." U.S.
Const. Amend. XIV, §§ I. The
Equal Protection Clause is applied
in connection with the ways governments make classifications
among the population. This docs
not mean that governments are prevented from making any types of
classifications, but instead that
decisiomnakers are prevented from
"treating differently persons who
are in all relevant respects alike."
Nordlinger v. Hahn, 505 U.S. 1
(1992).
An equal protection claim requires
an inmate to "first demonstrate that

he has been treated differently from
others with whom he is similarly
situated and that the unequal treatment was the result of intentional or
purposeful discrimination." Morrison v. Garraghty, 239 F.3d 648,
654 (4th Cir. 2001). Thus, it is not
enough that an action has had the
effect oftreating groups of inmates
differently. See Arlington Heights
v. Metropolitan HallS. Dev. Corp.,
429 U.S. 252, 265 (1977). Furthermore, it requires more than a
prisoner's personal belief that he
has been the victim of intentional
discrimination. See Chapman v.
Reynolds, 378 FSupp. 1137, 1140
(W.O. Va. I 974)(absent some
evidence, the court will not look
behind the decisions of prison
officials on the mere allegation that
they are racially motivated).

Just because there has been an
intentionally drawn distinction
does not automatically mean that
there has been a constitutional
violation. The courts must decide
whether the difference in treatment is a permissible one. Courts
can view such classifications in
one of three ways. In most cases,
a statute, regulation, or policy is
presumed to be valid and will be
upheld if it is shown to be "rationally related to a legitimate state
interest." See City ofCleburne
v. Cleburne Living Or., Inc., 473
U.S. 432, 440 (1985). However,
the courts give strict scrutiny to
claims that concern discrimination
based on either "suspect classifications" or "fundamental rights,"
including those made on the basis
(Continued on page 6)

Page 6

NCPLS ACCESS

Volume]], Issue 3, September 2002

The Equal Protection Clause in the Prison Context
(Continuedfrom page 5)

of racc or national origin. These
classifications will only be upheld
if they arc narrowly tailored to
serve a compelling state interst.
Id., 473 U.S. at 440. Prison
inmates are not a "suspect class"
for equal protection purposes.
Roller v. Gunn, 107 F.3d 227 (4th
Cir. 1997) (noting that neither
being a prisoner, nor being
indigent, constitutes a suspect class
for equal protection purposes).
Some classifications (such as
gender) have been afforded an
intennediate level of scrutiny,
where the classification "must
serve important governmental
objectives and must be substantially related to achievement of
those objectives." Craig v. Boren,
429 U.S. 190, 197 (1976).
This analysis applies to equal protection claims outside the prison
context. However, inside the
prison walls, additional factors arc
considered. In Turner v. Safley,
482 U.S. 78 (1987), the Supreme
Court held that a prison regulation
that infringed upon inmates' constitutional rights would be upheld if
it were shown to be reasonably
related to a legitimate penological
interest. The Fourth Circuit Court
ofAppeals recently observed that
prison officials must have the necessary discretion to operate prisons
in a safe and secure manner and
that:
"In a prison context, therefore, we
must detennine whether the disparate treatment is reasonably related
to any legitimate penological
interests. We apply this deferential
standard even when the alleged infringed constitutional right would
otherwise warrant higher scrutiny."

Veney v. Wyche, 293 F.3d 726, 732
(4th Cir. 2002) (internal citations
and quotations omitted). Veney
applied the Turner standard to find
that the prison authorities did not
violate a homosexual inmate's
right to equal protection by denying his request to be switched to a
double occupancy cell.
The Fourth Circuit has also upheld
the decision of prison administrators which identified the "Five Percenters" as a security threat group
and assigned them to long tenn
administrative segregation or
maximum control cells. In re:
Long Term Administrative Segregation ofInmates Identified as
Five Percenters, 174 F.3d 464 (4th
Cir.), cert. denied, 528 U.S. 874
(1999). The court observed that
the Constitution does not require
that all inmate groups be treated as
equal when differentiation is necessary to maintain prison security.
In Morrison v. Garragty, 239 F.3d
648 (4th Cir. 2001), however, the
Fourth Circuit struck do\V11 a
regulation that required inmates
seeking to possess Native American religious items to demonstrate
that they were, in fact, Native
Americans. This regulation, which
distin,bJUished inmates solely on
the basis of their race, could not
withstand an equal protection challenge where the officials had not
demonstrated that the requested
religious items posed any less of a
security threat in the hands of a
Native American inmate.
As you can see, equal protection
claims in the prison context present certain inherent difficulties.
The immediate problem is proving
intentional discrimination. Many

complaints concerning discrimination arise out of isolated decisions
of prison officials. These include
matters such as classification, job
assignments, recreation issues, and
similar issues. It is often easier to
show discrimination where there is
an established policy or regulation
which applies to a large number of
inmates.
The second problem is the deference that such decisions receive
from the courts. In matters that do
not Concern race, gender or
national origin, the courts apply the
rational basis standard of review.
Given the realities of prison life, it
is often easy for prison officials to
justifY a particular policy or decision. Even where strict scrutiny
would nonnally apply, a violation
will not be found if the particular
distinction is validly related to a
legitimate prison interest, such
as security. Basically, the inmate
will be required to show that the
discrimination in question is either
wholly arbitrary, or that there is a
complete absence of relationship
between the policy and the goal
that it is alleged to promote.
An inmate who believes that he or
she has been the subject of
improper discrimination may write
to NCPLS for a review of the particular claim. However, it is a
useful first step for the inmate to
file a grievance. That process
helps to establish the facts and aids
in the investigative process. Additionally, federal civil rights laws
require exhaustion of all available
administrative remedies as a prerequisite to the institution of a lawsuit. See, for example, 42 U.S.c.
§1997e(a).

Volume U, Issue 3, September 2002

TCPLS ACCESS

Page 7

Women's Prison Class Action Settled
(Continuedfrom page 4)

,vorth Carolina Correctional Institutionfor Women (NCCIW), Raleigh. NC

• to notify inmates affimlatively
of negative test results (indicating
I.here is no problem) for mammograms, pap smears, biopsies. and
matters of comparable magnitude;
• to maintain a system for inmates
to notify the Health Treatment
Administrator in writing of per~
ceived delays in follow~up treatment after a 60-day period has
passed.
In recognition of the improvements
and the commitments Defendants
have undertaken, Counsel for the
Plaintiff Class. in consultation

with I.he class representatives, will
dismiss the case on July 8, 2003,
unless there is objectively reasonable evidence that the Defendants
have failed or refused to use their
best efforts to maintain the accomplisbments or implement any
material component of the Joint
Resolution. During the monitoring
period, Counsel for Plaintiffs will
be able to inspect and copy appropriate and relevant documctlts.
If the parties are unable to agree
about any material component of
the Resolution at the end of this
period, Counsel for Plaintiffs may
ask the Court to resolve the matter.

NCPLS Senior Anomeys Linda
Weisel and Susan Poll in, Counsel
for the Plaintiff Class, are actively
monitoring compliance wlth the
Joillt Resolution and will evaluate Defendants' efforts to maintain
the improvements and fulfill their
obligations.
All women who are confined at
NeCIW are members of the plaintiff class. Class members can
obtain a copy of the Joint Resolution by directing a written request
to the attention of Linda Weisel or
Susan Pollitt at NCPLS.

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: tsanders@ncpls.org

Visit our website at:
"f,ttp://www.ncpls.org