The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume III, Issue 3, September 2003

ACCESS

CONGRESS PASSES ANTI-PRISON RAPE BILL
By Senior Attorney Richard E. Giroux

For many years, sexual violence
and predation have been one of the
most inhumane realities of prison
life. A developing awareness, at
both state and federal levels, has
resulted in legislation intended to
address the problem. This
article briefly looks at
recent federal legislation,
and then takes a look at a
law that the North Carolina Legislature passed
several years ago.
On July 25, 2003, Congress unanimously passed
the Prison Rape Elimination Act of 2003. The
Act creates and funds a
new government program
to analyze and prevent
rape of male and female
prisoners in correctional
institutions throughout the
United States.
As part of the legislation, the U.S.
Department of Justice will conduct an annual study that will be
based on surveys from 10% of the
8,700 correctional institutions in
the United States. These surveys
will include at least one institution
from every state. The results will
be evaluated by a commission that
will set national standards for the
prevention and prosecution of rape
in prison. The Act will provide
grants to states to combat the problem of prison rape. One supporter

of the bill suggested that correctional institutions with high rates
of sexual assault could lose their
accreditation or federal funding if
they fail to address the problem.

Stop Prisoner Rape (SPR) is a
national organization committed to
ending sexual violence against
men, women, and youth, in detention and correctional facilities.
SPR worked diligently for years to
draw attention to the problem and
to enact this federal legislation.
SPR’s address is 6303 Wilshire
Blvd., Suite 204, Los Angeles, CA
90048.
In 1997, the North Carolina General Assembly passed Senate Bill
521, requiring the Department of

Correction (DOC) to establish pilot
programs on sexual assault at three
units of the state prison system.
The legislation required that within
seven days of commitment to
prison, prisoners were to be provided an educational program on sexual assault,
including facts regarding
sexual violence in prison,
steps that can be taken to
reduce the risk of, or to
prevent sexual assault,
and information on
available counseling for
victims of sexual assault.
The statute also required
the DOC to make available materials on sexual
assault and rape trauma
syndrome; to collect statistics of reported or suspected incidents of sexual
aggression or violence at
units participating in the
(Continued on Page 2)
Inside this Issue:
Congress Passes Anti-Prison Rape Bill
NCPLS “Intent” on Making a Difference
U.S. Supreme Court Strikes Down Texas
Sodomy Statute -- Lawrence v. Texas
Overton v. Bazzetta: The Supreme Court
Upholds Restrictions on Prison Visitation
Roell v. Withrow and Implied Consent to
Federal Magistrate Judge Jurisdiction
Notary Services for Prisoners
Prisoner-Mother Program
North Carolina Has Two New Federal Judges
IMPACT Update: Sentence Reduction
Credits Benefit IMPACT Participants
Client Contributions Sought

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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 34,000 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.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.P.A.
Professor Fred Williams
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

ANTI-PRISON RAPE BILL
(CONTINUED)

(Continued from Page 1)

pilot programs; to develop and
implement employee training on
the identifi-cation and prevention
of sexual assault among prisoners;
to evaluate and classify prisoners
with re-spect to the probable risk
of sexual assault; and to rate
prisoners as potential sexual assault
offenders.
Pursuant to the statute, the DOC
delivered a report to the General
Assembly on implementation in
the Spring of 1998. DOC reported
that the units chosen for the pilot
program were Odom and Eastern
Correctional Institutions, and Morrison Youth Institution. The DOC
advised that staff supervision is
the primary means of controlling
sexual assault, and that inmates
share responsibility for their safety
by avoiding risk and engaging in
appropriate behavior.
The DOC reports that the inmate
orientation program continues to
include a component concerning
sexual assault. Additionally, upon
admission, prisoners are evaluated
and classified based in part upon
an assessment of the risk that the
inmate might be targeted for sexual
assault. Finally, correctional officers and staff receive continuing
instruction regarding the identification and prevention of sexual
assault.

Volume III, Issue 3, September 2003

NCPLS
“INTENT” ON
MAKING A
DIFFERENCE
By Staff Attorney
Elizabeth Raghunanan

NCPLS recently submitted a letter
of intent to the Collaborative for
Racial Justice Innovation - North
Carolina Fund. That was the first
step in the process for being considered to submit a grant proposal
to the Fund. In its letter of intent,
NCPLS described plans to partner
with groups such as the North Carolina chapters of CURE (Citizens
for the Rehabilitation of Errants)
and FAMM (Families Against
Mandatory Minimums) to develop
a community-based network to
promote racial equality within the
criminal justice system, to advocate
for a responsible, cost-effective
approach to punishment, a correctional system that makes rehabilitation a high priority, and for
the resources necessary to ensure
that people who are imprisoned
are treated humanely. We hope
that we will be invited to submit
a grant application so this initiative will have a chance to improve
the criminal justice system for the
benefit all North Carolinians.

Volume III, Issue 3, September 2003

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U.S. SUPREME COURT STRIKES DOWN TEXAS SODOMY STATUTE
LAWRENCE V. TEXAS
By Senior Attorney J. Phillip Griffin

On June 26, 2003, the U.S.
Supreme Court held a Texas statute
unconstitutional that prohibited
“deviate sexual intercourse with
another person of the same sex.”
Tex. Penal Code Ann. §21.06(a);
Lawrence v. Texas, ___ US ___
(No. 02-102) (June
26, 2003). Justice
Kennedy’s opinion
for the Court was
joined by Justices
Stevens, Souter,
Ginsburg and
Breyer. The Court’s
decision was based
upon the doctrine
of “substantive
due process,” that
the state may not
invade certain
fundamental liberties. Writing for
the Court, Justice
Kennedy pointed to
decisions striking
down statutes that
made it criminal to
teach German, to sell contraceptives, and to perform abortions.
These cases establish the right of
individuals to make certain fundamental decisions that are protected
as an exercise of liberty under the
Due Process Clause. In the opinion, the Court explicitly overruled
Bowers v. Hardwick, 478 U.S. 186
(1986), a decision that upheld a
Georgia sodomy law. Although the
Georgia statute did not discriminate against same-sex couples like
the Texas statute, it would now be
viewed as unconstitutional because
it intruded into a constitutionally

protected zone of privacy. Justice
Kennedy summed up the Court’s
ruling by noting that the case
involved private conduct between
consenting adults and not minors or
other persons who might be injured
or coerced. Neither did the con-

United States Supreme Court
Washington, DC
duct at issue involve prostitution or
public conduct.

for opposite-sex couples, the Texas
law violated the Constitution. Justice O’Connor thought her decision
to be consistent with the Bowers
decision, and she declined to join
the Court in overruling it. Justice
Scalia, joined by the Chief Justice
and Justice Thomas,
filed a dissenting
opinion.
At least two North
Carolina statutes are
called into question by the decision in Lawrence.
N.C. Gen. Stat.
14-177 makes the
“crime against
nature” (buggery
or sodomy) a Class
I felony. N.C.
Gen. Stat. 14-184
makes it a Class 2
misdemeanor for a
man and woman to
“lewdly and lasciviously, bed and
cohabit together.”

It is impossible to accurately foreJustice O’Connor voted to strike
cast the full import of the Lawrence
down the Texas statute, not on sub- decision on North Carolina law. It
stantive due process grounds, but
seems clear that Lawrence would
as a violation of equal protection
not preclude the prosecution of a
principles. Under the Equal Prodefendant accused of violating a
tection Clause, “the State cannot
sodomy statute in the context of
single out one identifiable class of
public conduct, prostitution, or
citizens for punishment that does
with a person who cannot lawfully
not apply to everyone else, with
consent. Beyond that, however, the
moral disapproval as the only
meaning of Lawrence will only be
asserted interest for the law.” Since known as it is applied and distinthe Texas statute singled out same- guished in subsequent rulings by
sex couples for punishment for
the courts.
sexual acts that were permissible

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Volume III, Issue 3, September 2003

OVERTON V. BAZZETTA:
THE SUPREME COURT UPHOLDS
RESTRICTIONS ON PRISON VISITATION
By Staff Attorney Tracy Wilkinson

In Overton v. Bazzetta, 123 S.Ct.
immediate family member and the
prison context, the Court concluded
2162 (June 16, 2003), the Supreme visit is approved by the warden.
that restrictions placed on those
Court considered a
rights by the Michigan
challenge to limitations
regulations were perplaced on prison visits
missible.
by the Michigan Department of Corrections
In Turner v. Safley,
(MDOC). The inmates
482 U.S. 78 (1987),
argued that the restricthe Supreme Court
tions violated their
held that a four-factor
constitutional rights
test would be used to
under the First, Eighth
determine whether a
and Fourteenth Amendprison regulation that
ments. Although the
was alleged to infringe
lower courts had agreed
upon a constitutional
that the regulations perright would be upheld
taining to non-contact
against a constituvisits were unconstitional challenge.
tutional, the Supreme
These factors are: (1)
United States Supreme Court Conference Chambers
Court reversed, finding
whether the regulation
that the regulations
has a “valid rational
were rationally related to legitimate Finally, inmates who have been
connection” to a legitimate govconvicted of two or more substance ernmental interest; (2) whether
prison objectives.
abuse infractions can only receive
inmates have alternative means to
visits from clergy or attorneys.
Under the Michigan regulations,
exercise the rights in question; (3)
However, after two years they may what impact an accommodation of
inmates can have visitation from
attorneys, clergy, immediate family apply for reinstatement of visitathe right would have on other
tion.
members, and ten other persons.
inmates, guards, and prison
Minor children are not allowed to
resources; and (4) whether there
The inmates argued that the regula- are “ready alternatives” to the reguvisit unless they are the children,
tions infringed upon their constitu- lation. Significantly, the Overton
stepchildren, grandchildren or
siblings of the inmate. Inmates are tional right of association. While
Court stated that [t]he burden . . . is
acknowledging that previous cases not on the State to prove the validnot permitted visitation from chilhad spoken of constitutional prodren in cases where their parental
ity of prison regulations but on the
tection for certain types of personal prisoner to disprove it.” Overton,
rights have been terminated. All
child visitors must be accompanied relationships, particularly familial
124 S.Ct. at 2168.
relationships, the Overton Court
by a family member of either the
found it unnecessary to explore the Applying these factors to the
child or the inmate or the child’s
extent to which such rights exist
legal guardian. Inmates cannot
Michigan regulations, the Court
receive visits from former inmates, after incarceration. Even assumfound that “the regulations bear a
ing that such rights do exist in the
unless the former inmate is an
(Continued on Page 5)

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Page 5

OVERTON V. BAZZETTA
(CONTINUED)

(Continued from Page 4)

rational relation to MDOC’s valid
interests in maintaining internal
security and protecting child
visitors from exposure to sexual
or other misconduct or from accidental injury.” The restrictions on
visits by ex-offenders were found
to be rationally related to the goal
of rehabilitation. Further, the Court
observed that drug smuggling and
use in prison were “intractable
problems,” and held that the twoyear denial of visitation for substance abuse violators served the
goal of deterring the use of drugs
and alcohol in prisons. Id.
After concluding that the regulations were rationally related to
legitimate penological interests, the
Overton Court addressed the remainder of the Turner factors.
First, the Court observed that prisoners had access to alternative
means of communicating with
family members. Prisoners could
send messages through those
persons who were approved for
visitation, and even those who were
subject to the two-year ban could
communicate by telephone and
through the mail. Next, the Court
stated that accommodating the
demand for less restrictive visitation “would cause a significant
reallocation of the prison system’s
financial resources and would

impair the ability of corrections
officers to protect all who are inside a prison’s walls. When such
consequences are present, we are
particularly deferential to prison
administrators’ regulatory judgments.” Id. at 2169 (internal
quotations omitted). Finally, on the
question of ready alternatives, the
Court noted that “Turner does not
impose a least-restrictive-alternative test, but asks instead whether
the prisoner has pointed to some
obvious regulatory alternative that
fully accommodates the asserted
right while not imposing more than
a de minimis cost to the valid penological goal.” Id. No alternatives
meeting this standard had been
suggested by the inmates.
The Overton Court rejected the
prisoners’ argument that the visitation restrictions violated the Eighth
Amendment. It observed that
many prison systems used visitation restrictions as a means of
enforcing discipline. The court
also found that the restrictions did
not “create inhumane prison conditions, deprive inmates of basic
necessities or fail to protect their
health or safety. Nor does it involve
the infliction of pain or injury, or
deliberate indifference to the risk
that it might occur.” Id. at 2170.
The Court acknowledged that a different result might be reached if the

withdrawal of visitation privileges
were permanent, or if the denial of
visitation were applied to a particular inmate in an arbitrary manner.
Overton is another in a long line of
Supreme Court cases that demonstrate the extent of the Court’s
deference to the judgment of prison
officials regarding the day-to-day
operation of prisons. Under this
line of authority, federal courts are
unwilling to second-guess the decisions of prison administrators as to
whether particular regulations are
necessary or appropriate. That is
particularly true when such regulations are based upon security concerns, which seem to be the most
compelling of legitimate interests
in the operation of prisons. Overton suggests that such regulations
will not be overturned, absent clear
evidence of arbitrary or baseless
governmental action.
[Editorial Note: The author, Staff
Attorney Tracy Wilkinson, has
accepted a position with the Wilmington law firm of Boseman &
Boyette. Her practice will focus on
family law and criminal matters,
including court appointed cases.
NCPLS appreciates Ms. Wilkinson’s service to our clients and
wishes her every success as she
undertakes new challenges.]

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Volume III, Issue 3, September 2003

ROELL V. WITHROW AND IMPLIED CONSENT
TO FEDERAL MAGISTRATE JUDGE JURISDICTION
By Staff Attorney Ken Butler

Federal magistrate judges are
changed the title of the position to
judicial officers of the U.S. District that of magistrate judge. MagisCourts. They aid the district court
trate judges are appointed by the
judges and exercise jurisdiction
district judges for the federal judiover matters pursuant to statutory
cial district, and they are required
authorization and assignment by
to be a member of the bar of the
the district judges. As a practical
highest court within the state where
matter, they may preside over every they serve. Full time magistrate
type of federal case, with the
judges are appointed for eight year
exception of felony
criminal cases. In the
context of civil cases,
magistrate judges are
allowed to preside
over cases, including
conducting jury trials
and entering judgments, so long as the
parties have consented
to having the magistrate judge decide the
case. The most significant difference
between a magistrate
United States Federal District Court
judge and a district
Wilmington, North Carolina
court judge is that
district court judges
terms and part-time magistrate
are appointed by the President and
judges serve for four year terms.
confirmed by the Senate. Magistrate judges are appointed by the
In non-criminal matters, magistrate
judges of the district courts.
judges are authorized to exercise
In the case of Roell v. Withrow, 123 jurisdiction in one of the following
ways. First, a district court judge
S.Ct. 1696 (2003), the U.S. Sumay refer a non-dispositive prepreme Court held that the parties’
trial matter, except for a motion for
consent to the jurisdiction of a
injunctive relief, to a magistrate
magistrate judge could be inferred
judge for ruling. 28 U.S.C. §636
from their conduct during the
(b)(1)(A). Such referrals may
proceedings.
include the entry of scheduling
orders for the conduct of civil
The position of federal magistrate
cases, the resolution of discovery
judge was created by Congress in
disputes, and the conduct of civil
1968 to replace the former post of
pre-trial conferences. Second, a
United States Commissioner. The
Judicial Improvements Act of 1990 district judge can refer case dispos-

itive matters to a magistrate judge.
28 U.S.C. §636(b)(1)(B). Such
a referral typically includes the
authority to conduct evidentiary
hearings and issue a recommended
ruling to the district judge. The
statute specifically provides that
such referrals may be made in prisoner cases, including both federal
habeas corpus and civil
rights claims arising
from conditions of confinement. A magistrate
judge can also be designated as a special master
by the district court. Id.
§636(b)(2). Finally,
“[u]pon the consent of
the parties, a full-time
United States magistrate
judge . . . may conduct
any or all proceedings in
a jury or nonjury civil
matter and order the
entry of judgment in the
case, when specially designated to exercise such
jurisdiction by the district court or
courts he serves.” Id. §636(c)(1).
In Roell v. Withrow, Jon Withrow,
a Texas inmate, brought a civil
rights action under 42 U.S.C.
§1983 against three members of the
prison medical staff alleging that
they violated his rights under the
Eighth Amendment by disregarding his medical needs. During a
preliminary hearing, Withrow was
informed that he could consent to
having a magistrate judge decide
the case. Withrow subsequently
consented to the jurisdiction of the
(Continued on Page 7)

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ROELL V. WITHROW
(Continued from Page 6)

magistrate judge. One of the
defendants, who was represented
by a private attorney, also gave
written consent to magistrate judge
jurisdiction. The remaining defendants, who were represented by the
Texas Attorney General’s Office,
did not expressly consent. However, they or their attorneys were
present on several occasions when
the magistrate judge indicated her
belief that all parties had consented
to her jurisdiction.
The matter proceeded to a jury trial
and resulted in a verdict for the
defendants. Withrow appealed and
the Fifth Circuit Court of Appeals,
on its own motion, remanded the
action back to the district court to
determine whether the parties had
consented to magistrate judge jurisdiction.
Upon remand in the district court,
it was observed that the defendants
had voluntarily participated in
proceedings before the magistrate
judge, and had not voiced any
objections to the court’s jurisdiction. However, because existing
Fifth Circuit precedent held that
consent to jurisdiction had to be
express, it was determined that the
magistrate judge lacked jurisdiction. The defendants submitted a
formal letter of consent during the
district court’s review, but that was
insufficient to confer jurisdiction
after the fact.
In a 5-4 decision, the U.S. Supreme
Court reversed the Fifth Circuit,
holding that a party’s actions can

(CONTINUED)

create implied consent to magistrate judge jurisdiction. In reaching this decision, the majority was
clearly guided by what it viewed as
“pragmatic” reasons. In particular,
the Court was concerned with a
rule that would allow a party to sit
silently when a magistrate judge
believed that consent had been
given and then contest an adverse
decision based upon a claimed lack
of jurisdiction in order to get a
“second bite” at the apple. In the
majority’s eyes, recognizing implied consent avoids such a waste
of judicial resources while preserving a party’s right to have the case
heard by a district judge. Justice
Thomas, writing for the dissent,
expressed the view that the textual
language of the relevant statutes
and rules required express consent.
The dissent also believed that it
was preferable to have a “bright
line” of express consent, rather
than trying to determine when a
party’s conduct crossed the line
into implied consent.
As indicated previously, federal
magistrate judges are widely used
in cases involving inmates. In
many instances, magistrate judges
make recommended rulings in
prisoner cases, including recommendations for the disposition of
motions to dismiss or for summary
judgment. Magistrate judges can
conduct evidentiary hearings without an inmate’s consent, but in such
cases, their rulings take the form of
recommendations. Such recommendations are subject to review
by the district court judge and both

parties have the opportunity to
present objections to the magistrate
judge’s recommendations.
For almost all purposes, when the
parties consent, a magistrate judge
has the same powers and authority
as a district court judge. (There
may be limited exceptions with
respect to the contempt powers of
a magistrate judge. See 28 U.S.C.
§636(e).) Consent to magistrate
judge jurisdiction confers the
power for a magistrate judge to
render judgment, which can be
immediately appealed to the federal appellate court. When the
parties have given consent, there
is no requirement of review by the
district judge.
One of the main advantages of
consenting to the jurisdiction of a
magistrate judge is a more prompt
disposition of the case. The schedules and case loads of magistrate
judges permit them to devote time
and attention to a civil rights case
that a district court judge may not
be able to spare because of lengthy
criminal dockets that take priority
over civil cases.
In most cases, the question of consent will not be in doubt, as parties
are asked to file written consent
forms for magistrate judge jurisdiction. While NCPLS attorneys generally encourage parties to consent
to the jurisdiction of magistrate
judges, every party has the right to
have his case decided by a federal
district judge. If you want to exercise that right, you should advise
the court in writing.

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Volume III, Issue 3, September 2003

NOTARY SERVICES FOR PRISONERS
By Senior Attorney Kristin D. Parks

When a document might be used in
a legal proceeding, or when it has
legal significance of some kind, it
may be necessary to have the document “notarized.” A “notary
public” has the legal authority to
notarize a document.
A notary public is a person
authorized by law to
administer oaths and to
witness and attest to the
signing of important documents. The purpose of
notarizing a document is to
ensure that the person who
signs the document is who
he or she claims to be. It is
thought that such a process
deters fraud. A notary generally performs the job by
verifying the identity of a
person and witnessing that
person’s signature on the
document that is to be
notarized. A person’s identity is
usually verified by providing the
notary satisfactory proof, such as a
driver’s license, a birth certificate,
or an ID card that is current.
A notary public is not responsible
for ensuring the accuracy of the
information contained in the document. The notary simply verifies
that the person signing the document is who he claims to be.
Notaries public are not authorized
to give legal advice.
Not every document must be
notarized. Only documents that
have some sort of legal significance
should be notarized. The kinds of
documents that might require notarization include wills, deeds con-

veying an interest in real property,
or (more commonly in prison) tort
claim affidavits, witness statements, and formal requests that are
intended to prove that the recipient
was put on notice of some fact.

Even among documents that have
legal significance, it may not be
necessary to have them notarized.
Under 28 U.S.C. Section 1746,
many of the purposes for which a
notary public is required to formalize a written document can be
equally satisfied by a declaration.
To be of use in a federal court, a
declaration must (1) be made on
personal knowledge, (2) set forth
such facts as would be admissible
in evidence, and (3) show that the
declarant is competent to testify
to the matters stated in the declaration. Competence to testify
generally requires a showing that
the person is an adult and that he
suffers from no physical or mental

impairment that would make his
perceptions unreliable. Additionally, the declaration must be signed
and dated, and must contain the
following phrase: “I declare under
penalty of perjury that the foregoing is true and correct.”
Finally, in order that the
declarant may be located
if his testimony should be
needed in the future, it is
important that a permanent
address be given (either
that of the declarant’s
spouse or a family member
through whom he can be
located). In this regard, a
prison ID number can often
be helpful.
Inmates without funds are
entitled to certain services
at state expense, such as
paper and pens to draft
legal documents, stamps,
and notary services to authenticate
legal documents. Bounds v. Smith,
430 U.S. 817 (1977). However,
the right of access to the courts is
limited. Lewis v. Casey, 518 U.S.
343 (1996). For example, the law
recognizes that prison officials
must make notary services reasonably available, but not continuous.
Dugar v. Coughlin, 613 F.Supp.
849, 854 (S.D.N.Y. 1985); Robbins
v. South, 595 F. Supp. 785, 789 (D.
Mont. 1984).
NCPLS has received reports that
some units are limiting the time
and availability of notary services.
If you have a document that needs
to be notarized, you should be
(Continued on Page 11)

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Page 9

PRISONER-MOTHER PROGRAM
By: State Senator & Staff Attorney Ellie Kinnaird
and Kady McDonald, Certified Legal Assistant

Ten years ago, NCPLS received a
grant to study the needs and to
explore issues of interest to women
prisoners. One goal was to ensure
that NCPLS provides the same
level of services to women in
custody of the N.C. Department of
Correction as we provide to men
who are incarcerated.
Our study revealed that women
were primarily concerned with
their children, and the separation
resulting from incarceration. In
response, NCPLS established a
family law section staffed by
Attorney Eleanor Kinnaird and
Certified Legal Assistant Kady
McDonald. This team provides
advice, information and forms to
all inmates who request help. Our
informational packets include pro
se divorce, modification of child
support orders, paternity determinations, and equitable distribution.
However, the decision to provide
legal representation is based upon
the strict application of acceptance
criteria and careful screening.
Over the years, the team has won
visitation rights for many inmates,
both women and men.
After working with women on custody issues for several years, the
Family Law Team realized that
many women are pregnant when
they enter the system. When the
baby is delivered, the child is taken
away from the mother to an uncertain future, sometimes with relatives, sometimes in foster care.
The caretakers often cannot or will

not bring the baby to visit the
mother in prison. The separation
between mother and child grows
greater with time, until the child
doesn’t know the mother and cannot relate to her. The mother also
has not had a chance to bond with
her infant and has not had the
opportunity to learn how to be a
good parent. This separation has
profound and lasting ramifications
on both mother and child.
Children who have a parent in
prison are themselves six times
more likely to be involved in the
criminal justice system. Several
states have community facilities
that house both the prisoner-mother
and her child. Such an arrangement facilitates the bonding process between infant and mother,
and minimizes the impact of
incarceration on the child and the
family. The recidivism rate of
participants in mother-child
programs is much lower in those
states that have a prisoner-mother
program.
Out of the Family Law Team’s
experience was born the vision for
a North Carolina facility that would
house women and their young
children. The goal is to create a
facility to unite mother and child
into a whole, healthy family, both
in body, mind and spirit. As it is
envisioned, the facility would not
be inside prison walls, but in the
community, as are the units in
California. With the help of cooperating religious institutions, the
facility would provide intensive

services for the women, including drug abuse treatment, group
and individual therapy, parenting
skills and preparation for a life
after prison. There are also plans
to include a component focusing on
fatherhood.
The facility would provide assistance and support to the mothers
and their infants through a nursery,
and for the older children, a daycare and a school. Eligibility for
participation will require a minimum sentence of 18 months (so
that there will be time to receive
the maximum benefit of the program). A careful screening process
will be in place to ensure the selection of the best candidates.
The facility will be costly. Planned
services include professional care
for both women and children. The
building will be designed and
constructed to provide a safe and
secure environment for children.
But the program can draw in many
services from surrounding universities and agencies that will both
help defray the costs as well as
provide training for professionals
in the field. To that end, Attorney
Kinnaird has worked with a Steering Committee made up of prison
authorities, academics from universities and health care professionals
for the past three years to set up a
non-profit. Through those efforts,
the dream is becoming a reality.
Families and our communities will
benefit from such a program.

NCPLS ACCESS

Page 10

Volume III, Issue 3, September 2003

NORTH CAROLINA HAS
TWO NEW FEDERAL JUDGES
By Staff Attorney Betsy ColemanGray

_________________

Two North Carolinians were
recently appointed to the Federal
bench by President Bush. Judge
Allyson Duncan was appointed to
the U.S. Court of Appeals for the
Fourth Circuit, and Judge Louise
Flanagan was appointed to the U.S.
District Court for the Eastern District of North Carolina.
Allyson Duncan is originally from
Durham. She attended Hampton
University, where she graduated
first in her class. Ms. Duncan
received her legal education at
Duke University School of Law.
She worked in Washington at the
Equal Employment Opportunity
Commission for nine years before
returning to Durham as a professor
at the North Carolina Central
University School of Law. Thereafter, Ms. Duncan was appointed
to the North Carolina Court of
Appeals, and was later appointed to
the North Carolina Utilities Commission. Ms. Duncan joined the
Raleigh law firm, Kilpatrick Stockton LLP, where she was a partner.
In June, Ms. Duncan was elected as
President of the North Carolina Bar
Association. Her term of office had
hardly begun when the United
States Senate confirmed her appointment to the Fourth Circuit, the
Federal appellate court for U.S.
District Courts in North Carolina,
South Carolina, Virginia, West
Virginia, and Maryland. Judge
Duncan is the first female AfricanAmerican to serve on the court.

the first female
African-American
to serve on the court
_________________
Judge Allyson Duncan
U.S. Fourth Circut
Court of Appeals

_________________
the first female
U.S. District Court
Judge for the
Eastern District of

Judge Louise Flanagan
U.S. District Court,
EDNC

Judge Louise Flanagan was appointed by President Bush to serve
as a Judge on the U.S. District
Court for the Eastern District. She
was born in Virginia, attended
Wake Forest University as an
undergraduate, and received her
law degree from the University of
Virginia Law School. She worked

North Carolina
_________________
as an attorney with Ward and
Smith, P.A. Beginning in 1995,
Judge Flanagan served as a U.S.
Magistrate Judge for the Eastern
District of North Carolina. With
her confirmation, Judge Flanagan
became the first female U.S. District Court Judge for the Eastern
District of North Carolina.

Volume III, Issue 2, September 2003

NOTARY SERVICES
(CONTINUED)

(Continued from Page 8)

attentive to the availability of this
service, especially if you are trying
to meet a filing deadline or a statute
of limitation. If you miss such a
deadline, it is doubtful that you
would be excused because a notary
was not available when you needed
the service.
To sum up, you should notarize
only those documents that are
legally required to be notarized,
such as tort claim affidavits, affidavits to be filed with pleadings,
or other documents in which the
identity of the signer must be
verified. Most legal forms that
require notarization will have a
place for the notary to date, sign,
and affix a seal. If you expect to
proceed in federal court, you will
not need to notarize your documents. Instead, you may rely upon
28 U.S.C. §1746 and follow the
procedure described above. Letters
to NCPLS generally need not be
notarized unless you are trying to
establish that you put us on notice
about some matter. (In fact, our
receipt of your document would
establish the same purpose.)
Notary services are costly and
generally, unnecessary. If you have
questions about what should be
notarized, or problems in getting
timely notary services, please write
to NCPLS.

NCPLS ACCESS

Page 11

IMPACT UPDATE:
SENTENCE REDUCTION CREDITS
BENEFIT IMPACT PARTICIPANTS
By Senior Attorney Susan H. Pollitt

One year ago, the N.C. Supreme
Court ruled that time people spent
in IMPACT (Intensive Motivational Program of Alternative
Correctional Treatment) must be
credited against their activated
sentence. State v. Hearst, 356 N.C.
132, 567 S.E.2d 124 (N.C. 2002).
Since then, NCPLS has been working hard to make sure inmates who
participated in IMPACT receive the
credit to which they are entitled.
The Department of Correction
(DOC) has helped by providing us
periodic lists of people in prison
who went to IMPACT. They also
assist us by promptly crediting
court orders for the additional sentence reduction credits.
There are still people in the DOC
who have not received credit for

the time they spent in IMPACT.
However, only a judge can award
the credit. When NCPLS receives
a request for IMPACT credit, our
legal staff quickly investigate the
persons’ situation to determine
whether there is a meritorious legal
claim to the credit. In meritorious cases, NCPLS attorneys seek
orders providing credit.
Since the last edition of ACCESS,
NCPLS has received orders for 29
inmates for their IMPACT credit.
These 29 people received credits
totaling 2,480 days.
If you went to IMPACT and
believe that you did not receive
credit for the time you spent in
IMPACT, you should write to
NPCLS now!

CLIENT CONTRIBUTIONS SOUGHT
At NCPLS, we often receive letters
from our clients showing remarkable artistic talent and revealing
skills and accomplishments. Our
clients also frequently demonstrate the ability to use language in
sophisticated, creative, and expressive ways. Such works communicate the full range of human intellect and emotion, often in unique
and moving ways.
In recognition of the talent of our
clients, ACCESS will accept submissions from North Carolina inmates
to share with our readers in the

next edition of our newsletter.
Poems, short stories and drawings
will be considered for publication.
Entries should be submitted on
standard 82 x 11 inch paper, and
any writings should not be more
than 600 words. All entries should
be addressed to the ACCESS Editor.
Please understand that we will
consider any submission as authorization by the author or the artist to
publish the work. Also, all submissions will become the property of
NCPLS. We look forward to sharing our client’s creativity with the
readers of ACCESS.

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