By: Clare Heine
November 22, 2021
Three waves of reactionary legislation have defined sentencing policy in North Carolina. First, in 1974 the Legislative Commission on Correctional Programs, known as the “Knox Commission”, was created to address overcrowding, as the state had the highest per capita rate of imprisonment, and sentencing disparities that were exposed by the North Carolina Bar Association. The Knox Commission developed the 1981 Fair Sentencing Act, under which North Carolina followed many other states in the switch to determinate sentencing which limited judicial discretion by setting prescribed presumptive sentences and limiting discretionary parole. This legislation granted people serving life sentences parole eligibility after serving twenty years.
Then, in the 1980’s, North Carolina once again faced severe prison overcrowding due to “tough on crime” sentencing, the “War on Drugs,” and an increase in the crime rate. In response to several lawsuits and the threat of federal intervention, the state reinstituted discretionary parole and capped its prison population. To remain below this cap, the Parole Commission granted many early releases, which generated pushback from judges who then increased sentences in response. In 1990, the legislature instituted the Sentencing and Policy Advisory Committee to alleviate this prison crisis. The General Assembly adopted the Committee’s Structured Sentencing package in 1993, which eliminated discretionary parole and established a “grid” sentencing system that considers the offense and the offender’s prior record. People sentenced to life retained the possibility of a shortened sentence, with review for a potential commutation recommendation by a Superior Court Judge after twenty-five years.
Shortly after the enactment of Structured Sentencing, there was once again a flurry of legislation affecting prisons as part of a 1994 legislative extra session called by Governor Jim Hunt to address an increase in violent crime and respond to the highly publicized 1993 murder of NBA player Michael Jordan’s father. Twenty-eight new bills were passed during this session. One notable policy change was the removal of the aforementioned right to judicial review after twenty-five years, ending standard review for early release for people serving life without parole.
The Prison Resources Repurposing Act
The Prison Resources Repurposing Act (PRRA) would extend the state’s Mutual Agreement Parole Program (MAPP) to people sentenced to life without parole. MAPP currently only applies to people who committed crimes before the October 1, 1994 implementation date of Structured Sentencing. The PRRA offers parole eligibility “after serving a minimum of 20 years’ imprisonment and complying with mandatory educational, vocational, and work requirements.” This bill simply provides eligibility for consideration for parole, subject to a final determination by the Post-Release Supervision & Parole Commission. It would not trigger immediate release.
The PRRA was introduced as House Bill 697 on April 27, 2021, in the N.C. General Assembly and had 18 Democratic sponsors. The bill was referred to the House Committee on State Government on April 28, 2021, where it expired due to lack of bipartisan support. Despite limited action on the bill thus far, supporters are hopeful for action during the 2022 legislative session and have already gained the support of local organizations including the ACLU of North Carolina and the racial justice organization, Emancipate NC.
The PRRA was authored by Phillip Vance Smith II and Tim Johnson, two of 1,627 people serving life without parole sentences in North Carolina. Smith and Johnson were inspired to write this bill while serving their sentences. Smith has described his motivation as: “When I came to prison, I noticed how the people who had the most time were hopeless, and I felt it too. When you feel like you can’t get out of prison, then you have no incentive to live virtuously . . . nothing we do can change our situation. That does something to you psychologically.” Smith said that even hearing about the bill has changed the perspective of some people sentenced to life without parole—it has driven them to pursue further education and other opportunities. Smith also stressed that incarcerated people are well-situated to propose prison reforms: “I don’t know of anybody else who would be more qualified to address these things because we’re here every day. We see the problem.”
Support for the Prison Resources Repurposing Act
It is critical to address the issues raised by life without parole sentences now because prosecutorial reluctance to seek the death penalty has dramatically increased the rate of such sentences. Yet, as one death row lawyer wrote, “sending a prisoner to die behind bars with no hope of release is a sentence that denies the possibility of redemption every bit as much as strapping a murderer to the gurney and filling him with poison.” In most states there are no elevated standards for lawyers representing people in cases that could potentially result in life without parole sentences. In contrast, there are special requirements for defense lawyers in capital cases. Given the severity of the sentence and the fact that “most industrialized countries have abolished [life without parole] sentencing as contrary to human rights obligations,” the prevalence of these sentences in the United States is concerning.
There are several significant findings that lend support to expanding parole opportunities for people serving life sentences. First, it has been well documented that people tend to age out of crime. The peak age for violent crimes is in the twenties, with an unstable rate of decline thereafter; drug crime rates fall steeply around age 47. Although there has not been much research on the recidivism of “lifers” who have been released, the current evidence suggests they have low rates of reoffending. Second, there is a notable racial disparity among those sentenced to life without parole. In 2016, Black people made up less than fifteen percent of the American population, but over fifty percent of people serving life without parole. In North Carolina specifically, “sixty-two percent of people sentenced to life without parole are Black, more than double the [thirty] percent who are white.” Research has also shown that defendants in North Carolina accused of crimes against white people receive harsher sentences, demonstrating that racism can play a role in sentencing.
Another important consideration is the effect of a life without parole sentence on prisoners’ mental health. One study showed that almost one in five “lifers” had a mental illness, and it has been well-documented that conditions of incarceration deteriorate mental health. Smith has observed that the sentence causes hopelessness, which is frequently linked with depression, and also decreases incentives to pursue education or training while incarcerated.
Finally, the expansion of parole eligibility could reduce the significant public cost of imprisonment. In 2019, the annual spending per inmate in minimum custody was $33,014.25. Given that this proposal simply extends the pre-existing MAPP program to people with life without parole sentences, the only spending needed is to expand the capacity of the Post-Release Supervision and Parole Commission and to fund participation in educational or work programs. This cost increase will be relatively small because the 1,627 people serving life without parole that this legislation impacts is a small fraction of the total number of those incarcerated in North Carolina prisons, which in 2018 was 35,166.
Critiques of the Prison Resources Repurposing Act
There are several potential critiques of the PRRA. First, there are normative concerns about the potential release of those sentenced to life without parole. Some people may simply believe in the retributive value of a life without parole sentence, and others may argue that there should not be discrepancies between sentences and time served. As discussed, the latter issue was a major factor motivating sentencing reform in the 1980’s. On the individual level, there are the possibilities that a parolee could reoffend and that their release would pose an emotional burden on victims and their families.
Second, the PRRA includes extensive mandatory education and work requirements, which could be seen as unnecessary, patronizing, or even exploitative. However, advocates for these requirements would argue that they incentivize experiences that prepare incarcerated people for reintegration and reduce the risk of recidivism.
Lastly, critics may be concerned that the PRRA does not go far enough and more significant reforms to sentencing and parole are necessary. Some advocates concerned about mass incarceration have emphasized the need to prevent life sentences in the first instance by, for example, setting maximum sentences of 20 years. The PRRA allows for parole eligibility retrospectively but does nothing to prevent the imposition of life sentences initially. Advocates for presumptive parole, under which release is triggered unless the parole board finds specific reasons to prevent it, say it is fairer than other forms of parole and helps incarcerated people and their loved ones prepare for their release. There are also critiques of parole in general, as the process often lacks transparency and participation, and imposes excessive restrictions on those who have been released. In North Carolina specifically, “the Commission does not hold formal hearings and does not meet personally with offenders when reviewing cases for possible parole.” Finally, there is always the concern that the significant move away from the death penalty could reverse if opportunities for parole are imputed to current and future life sentences.
Conclusion
The PRRA is an impressive bill because it was written by lifers, for lifers. Even if the bill does not pass, it is an achievement that Smith and Johnson are such effective advocates and policy drafters whilst experiencing the harsh realities of their sentences. The circumstances surrounding the drafting of this legislation are remarkable, but it is the evidentiary and moral arguments against life without parole that should compel the North Carolina state legislature to pass this bill.
It is true that this bill does not go far enough in addressing the issues of excessively long sentences; even Smith envisions expanding parole for others, especially those “who have a long time because of consecutive sentencing.” This bill is not a panacea and should be accompanied by further changes to sentencing and prison conditions. However, the PRRA can still be a positive step forward and, for people serving life without parole in North Carolina, a vitalizing source of hope.
Clare Heine, J.D. Class of 2023, New York University School of Law
Suggested Citation: Clare Heine, Hope for People Serving Life Without Parole in North Carolina: The Prison Resources Repurposing Act, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021).