JONES v. KELLER
No. 518PA09
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 27 August 2010
364 N.C. 249 (2010)
ALFORD JONES, PETITIONER V. ALVIN KELLER, SECRETARY OF THE DEPARTMENT OF CORRECTION, AND SUSAN R. WHITE, ADMINISTRATOR OF NEW HANOVER CORRECTIONAL CENTER, RESPONDENTS
In a decision with a three-justice majority opinion and two justices concurring, it was held that the Department of Correction (DOC) acted within its statutory authority in limiting the application of good time, gain time, and merit time credits to the life sentence of an inmate convicted of first-degree murder between 8 April 1974 and 30 June 1978. Implicit in DOC‘s power to allow time for good behavior is the authority to determine the purposes for which that time is allowed; its application of its own regulations to accomplish the goal of releasing only those who are prepared and who can safely return to society is strictly administrative and outside the purview of the courts. An award of time by DOC need not be an all or nothing award for unlimited uses.
2. Constitutional Law— due process—calculation of inmate‘s sentence reduction credits
In a decision with a three-justice majority opinion and two justices concurring, there was no violation of the due process rights of an inmate (Jones) sentenced to life imprisonment for first-degree murder between 1974 and 1978 where the Department of Correction (DOC) withheld application of good time, gain time, and merit time from the calculation of the date for an unconditional release. When a liberty interest is created by a State, it follows that the State can control the contours of that interest within reasonable and constitutional limits. DOC‘s determination that Jones‘s immediate unconditional release would endanger public safety is a compelling State interest outweighing any limited due process liberty interest Jones may have.
3. Constitutional Law— ex post facto—calculation of inmate‘s sentence reduction credits—no violation
In a decision with a three-justice majority opinion and two justices concurring, the trial court correctly found that an inmate (Jones) had not suffered an ex post facto violation in the
4. Constitutional Law— equal protection—inmate‘s sentence reduction credits
In a decision with a three-justice majority opinion and two justices concurring, there was no equal protection violation in the Department of Correction‘s (DOC‘s) refusal to apply sentence reduction credits to a life sentence imposed for a first-degree murder between 1974 and 1978. The fact that the inmate (Jones) is serving a sentence for first-degree murder reasonably suggests that he presents a greater threat to society than prisoners convicted of other offenses, and DOC had a rational basis for denying good time, gain time, and merit time for the purposes of unconditional release, even though these same credits have been awarded for that purpose to other prisoners with determinate sentences.
Justice NEWBY concurring in the result.
Justice BRADY joins in this concurring opinion.
Justice TIMMONS-GOODSON dissenting.
Justice HUDSON joins in this dissenting opinion.
On writ of certiorari pursuant to
Staples S. Hughes, Appellate Defender, and Katherine Jane Allen, Benjamin Dowling-Sendor, Daniel R. Pollitt, and Daniel K. Shatz, Assistant Appellate Defenders, for petitioner-appellee.
Roy Cooper, Attorney General, by Tiare B. Smiley and Robert C. Montgomery, Special Deputy Attorneys General, for respondent-appellants State of North Carolina and North Carolina Department of Correction.
Elliot Pishko Morgan, P.A., by David Pishko, and Abrams & Abrams, P.A., by Margaret Abrams, for North Carolina Advocates for Justice, amicus curiae.
In this case we determine whether petitioner Alford Jones is entitled to habeas corpus relief from incarceration on the grounds that he has accumulated various credits against his sentence. Because we conclude that he is lawfully incarcerated, we reverse the decision of the superior court.
The record indicates that Jones was charged with the 6 January 1975 murder of William B. Turner, Sr. Jones was convicted on 19 March 1975 in Superior Court, Lenoir County, and sentenced to death. In an opinion dated 17 June 1976, this Court found no error in Jones‘s conviction and sentence. State v. Jones, 290 N.C. 292, 225 S.E.2d 549 (1976). On 1 September 1976, this Court entered an order vacating Jones‘s sentence of death, pursuant to the opinion of the Supreme Court of the United States in Woodson v. North Carolina, 428 U.S. 280, 49 L. Ed. 2d 944 (1976). Upon remand to the superior court, Jones was sentenced to a term of life imprisonment on 27 September 1976. As of 30 November 2009, Jones had accrued good time totaling 14,041 days, gain time totaling 2,146 days, and merit time totaling 1,745 days.
On 18 November 2009, Jones filed a petition for writ of habeas corpus in Superior Court, Wayne County. Jones‘s contention is that, when his good time, gain time, and merit time are credited to his life sentence, which is statutorily defined as a sentence of eighty years, he is entitled to unconditional release. After careful consideration, and relying on the opinion of the Court of Appeals in State v. Bowden, 193 N.C. App. 597, 668 S.E.2d 107 (2008), disc. rev. improvidently allowed, 363 N.C. 621, 683 S.E.2d 208 (2009), the superior court concluded that Jones was entitled to be awarded good time, gain time, and merit time by the Department of Correction (DOC) for all purposes, including calculation of Jones‘s date of unconditional release; that Jones had served the entirety of the sentence imposed in his case; and that Jones was entitled to relief. Accordingly, the trial court allowed Jones‘s petition for habeas corpus and ordered that Jones be released. This Court allowed DOC‘s motion for temporary stay and granted its petition for writ of certiorari.1
Every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the restraint, if
[1] Jones is one of a group of prisoners, each of whom committed first-degree murder between 8 April 1974 and 30 June 1978 and were sentenced to life imprisonment, and it is this limited group that we consider in this opinion. At the time of petitioner‘s offense, the controlling statute provided that “[a] sentence of life imprisonment shall be considered as a sentence of imprisonment for a term of 80 years in the State‘s prison.”
However, while section 14-2 sets the term of imprisonment, that statute is silent as to the administration of the sentence. Instead, the General Assembly delegated that responsibility to DOC.
Therefore, we must next consider the legality of the pertinent DOC regulations as they apply to petitioner. DOC is an arm of the executive branch of government.
“The functions of the court in regard to the punishment of crimes are to determine the guilt or innocence of the accused, and, if that determination be one of guilt, then to pronounce the punishment or penalty prescribed by law. The execution of the sentence belongs to a different department of the government. The manner of executing the sentence and the mitigation of punishment are determined by the legislative department, and what the Legislature has determined in that regard must be put in force and effect by administrative officers.”
Id. at 563-64, 184 S.E.2d at 265 (quoting People v. Joyce, 246 Ill. 124, 135, 92 N.E. 607, 612 (1910)); see also Bacon v. Lee, 353 N.C. 696, 716, 549 S.E.2d 840, 853-54, cert. denied, 533 U.S. 975, 150 L. Ed. 2d 804 (2001). “The punishment imposed in a particular case, if within statutory limits, is within the sound discretion of the presiding judge. The prison rules and regulations respecting rewards and privileges for good conduct (‘good time‘) are strictly administrative and not judicial.” State v. Garris, 265 N.C. 711, 712, 144 S.E.2d 901, 902 (1965) (per curiam) (citing
The regulations promulgated by DOC have changed several times since Jones‘s incarceration. Essentially, DOC‘s regulations provide for good time, gain time, and merit time to be credited against an inmate‘s sentence. See, e.g., Div. of Prisons, N.C. Dep‘t of Corr., Policy and Procedure, ch. B, §§ .0109-.0116 (Oct. 5, 2007) (hereinafter DOC Manual); 5 NCAC 2B .0101-.0103 (Feb. 1976, Mar. 1980, Sept. 1983). Gain time and merit time are awarded to prisoners who perform work or otherwise take some action to qualify, while good time is automatically awarded to every prisoner. See, e.g., 5 NCAC 2B .0102-.0104. (Sept. 1983). Pursuant to the regulations, good time is subject to forfeiture, but only for reasons specified therein, such as major infractions, while gain time and merit time are not subject to forfeiture for misconduct. See, e.g., id. However, the distinctions between good time, gain time, and merit time, while of obvious importance to DOC and to inmates, are not material for our analysis as long as these credits are administered in a manner that satisfies statutory and constitutional requirements.
DOC argues, and the trial court found as fact, that “[t]he Department of Correction has never used good time, gain time, or merit time credits in the calculation of unconditional release dates for inmates who received sentences of life imprisonment.” More specifically, DOC acknowledges that Jones earned gain and merit time, but states that these credits were not applied to reduce the time to be served on his sentence in any way. Accordingly, the inmate records maintained for Jones by DOC show his sentence as “99/99/99,” a code that denotes a sentence of life imprisonment. These records also reflect a release date of “Life.” DOC‘s position is that gain and merit time were only recorded in case Jones‘s sentence was commuted by a governor, at which time they would be applied to calculate a release date. DOC further contends that it awarded Jones good time solely for the purposes of allowing him to move to the least restrictive custody grade and to calculate his parole eligibility date, and not for the purpose of allowing Jones unconditional release. Thus, according to DOC, vari-
In making this determination, we first consider whether DOC‘s administration of good time, gain time, and merit time credits is within the statutory authority delegated it by the General Assembly. An “agency has those powers that are explicitly granted in the statute plus those powers that are ascertainable as inherent in the underlying policies of the statute, and that may be fairly implied from the statute.” In re Appeal of Broad & Gales Creek Cmty. Ass‘n, 300 N.C. at 280, 266 S.E.2d at 654-55 (citations omitted). At the time petitioner was sentenced,
Under the rationale of In re Appeal of Broad & Gales Creek Cmty. Ass‘n, 300 N.C. at 280, 266 S.E.2d at 654-55, implicit in DOC‘s power to allow time for good behavior under section 148-13 is authority to determine the purposes for which that time is allowed. An award of time by DOC need not be an all-or-nothing award for unlimited uses. Discretion to determine the purposes for which time is awarded is consistent with such DOC goals as assuring that only those who can safely return to society are paroled or released and that they have been suitably prepared for outside life. See
[2] We now turn to the question whether DOC‘s interpretation and implementation of its regulations are constitutional. Jones contends that DOC has violated his rights to due process and to equal protection. In addition, he argues that he has suffered an ex post facto violation. We address each of these claims.
The United States Supreme Court has held that “[l]iberty interests protected by the Fourteenth Amendment may arise from two sources—the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 685 (1983), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418 (1995). However, “due process is flexible and calls for such procedural protections as the particular situation demands.... [N]ot all situations calling for procedural safeguards call for the same kind of procedure.” Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 494 (1972). While a prisoner retains basic constitutional rights, State v. Primes, 314 N.C. 202, 208, 333 S.E.2d 278, 281 (1985), the Supreme Court has found that an inmate‘s liberty interests derived from the Fourteenth Amendment are limited, given the nature of incarceration, Helms, 459 U.S. at 467, 74 L. Ed. 2d at 685 (“[O]ur decisions have consistently refused to recognize more than the most basic liberty interests in prisoners.“). Nevertheless, “a State may create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures.” Id. at 469, 74 L. Ed. 2d at 686; see also Sandin v. Conner, 515 U.S. at 483-84, 132 L. Ed. 2d at 429. Prisoner benefits in the form of good time, gain time, and merit time arise from such statutes or regulations. See Wolff v. McDonnell, 418 U.S. 539, 557, 41 L. Ed. 2d 935, 951 (1974) (stating that “the Constitution itself does not guarantee good time credit for satisfactory behavior while in prison... [b]ut the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner‘s interest has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances“).
The liberty interest alleged to be at issue here thus is one created by the State through its regulations. When a liberty interest is created by a State, it follows that the State can, within reasonable and constitutional limits, control the contours of the liberty interest it creates. In other words, the liberty interest created by the State through
Petitioner contends, however, that his credits should be applied toward calculation of the date of his unconditional release. We disagree. As indicated by Wolff, Helms, and Sandin, Jones‘s liberty interest in good time, gain time, and merit time is limited. Thus, his liberty interest, if any, in having these credits used for the purpose of calculating his date of unconditional release is de minimis, particularly when contrasted with the State‘s compelling interest in keeping inmates incarcerated until they can be released with safety to themselves and to the public. The record indicates that Jones is eligible for parole and has received annual parole reviews, but that the Parole Commission consistently has declined to parole him. Accordingly, Jones has received the process that is due him as an inmate eligible for parole, when the State‘s corresponding interest is assuring that inmates are safely released under supervision. Assuming without deciding that DOC‘s procedures for determining parole adequately protect an inmate‘s due process rights to consideration for parole, those procedures are also adequate to preserve Jones‘s constitutional rights while still permitting the State to withhold application of Jones‘s good time, gain time, and merit time to the calculation of a date for his unconditional release. He has no State-created right to have his time credits used to calculate his eligibility for unconditional release. Jones‘s due process rights have not been violated.
This State interest in ensuring public safety is particularly pronounced when dealing with those convicted of first-degree murder. See State v. Rorie, 348 N.C. 266, 271, 500 S.E.2d 77, 80 (1998) (describing first-degree murder as “this most serious crime“), superseded by statute, Act of May 8, 2001, ch. 81, secs. 1, 3, 2001 N.C. Sess. Laws 163, 163-65, on other grounds as recognized in State v. Defoe, 364 N.C. 29, 691 S.E.2d 1 (2010); see also Graham v. Florida, 560 U.S. 48, 82, 176 L. Ed. 2d 825, 842 (2010) (stating that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punish-
In addressing Jones‘s contentions, we are aware that DOC‘s regulations currently define good time, gain time, and merit time as “[t]ime credits applied to an inmate‘s sentence that reduce[] the amount of time to be served” and state that “[g]ood time is sentence reduction credit awarded, at the rate of one day deducted for each day served in custody for good behavior and/or without an infraction of inmate conduct rules.” DOC Manual ch. B, § .0110(a), (f) (Oct. 5, 2007). These regulations were promulgated by DOC years after Jones was sentenced, see 5 NCAC 2B .0110(6) (Apr. 1995); id. 2B .0102 (Sept. 1983), when no challenge had been raised to the State‘s position that those sentenced to life pursuant to the version of section 14-2 in effect between 8 April 1974 and 30 June 1978 had been given an indeterminate sentence. Except for this limited time period, life sentences unquestionably were and still are indeterminate sentences. No regulation explicitly provides that credits are to be used to calculate an unconditional release date, and DOC asserts that it never considered that these regulations applied to Jones or other inmates similarly situated for the purpose of calculating an unconditional release date. Because the regulations were understood to be inapplicable for that purpose, the State did not fully prepare Jones for unconditional release. In light of the compelling State interest in maintaining public safety, we conclude that these regulations do not require that DOC apply time credits for purposes of unconditional release to those who committed first-degree murder during the 8 April 1974 through 30 June 1978 time frame and were sentenced to life imprisonment.
[3] We next consider Jones‘s ex post facto argument. He contends that DOC‘s interpretation of its regulations has retroactively increased the punishment for his offense after the offense was com-
The constitutions of both the United States and North Carolina prohibit the enactment of ex post facto laws.
Legislation that retroactively alters sentence reduction credits in effect at the time a crime was committed can be an unconstitutional ex post facto law. See Weaver v. Graham, 450 U.S. 24, 25, 36, 67 L. Ed. 2d 17, 20-21, 28 (1981) (finding an ex post facto violation in Florida legislation that altered the availability of good time sentence reduction from a convicted prisoner‘s sentence). However, Jones does not allege that any legislation or regulation has altered the award of sentence reduction credits. Nor has DOC changed its interpretation of its applicable regulations. Accordingly, the superior court correctly found that Jones has suffered no ex post facto violation.
[4] Finally, Jones argues that DOC‘s denial of good time, gain time, and merit time for the purpose of calculating an unconditional release date violates his right to equal protection of the law. Jones contends that his equal protection right prohibits the State from treating inmates who committed first-degree murder between 8 April 1974 and 30 June 1978 and were sentenced to life imprisonment under N.C.G.S. § 14-2, who are thus serving determinate sentences, differently from other inmates serving determinate sentences. “When a governmental classification does not burden the exercise of a fundamental right or operate to the peculiar disadvantage of a suspect class, the lower tier of equal protection analy-
Jones was convicted of a different crime than others serving determinate sentences under statutes other than
Accordingly, we hold that Jones is legally incarcerated. The holding of the trial court to the contrary is reversed.
REVERSED.
Justice NEWBY concurring in the result.
The question at the heart of this appeal is whether the General Assembly intended to eliminate life sentences by legislation enacted in 1974. A thorough analysis of that legislation reveals that the General Assembly never abolished life sentences. In fact, the legislature exhibited an affirmative intent to retain life imprisonment as a special sentence status. Because the administration of the relevant statutory mandates by the Department of Correction (“DOC“) has been in consistent harmony with this legislative intent and with inmates’ constitutional rights, it is not the place of the courts to overturn DOC‘s policy of treating life inmates differently from other prisoners.
I agree with the majority‘s ultimate holding that Jones is lawfully incarcerated. More specifically, I concur in the conclusion that DOC
As noted by the majority, the trial court found as fact that “[t]he Department of Correction has never used good time, gain time, or merit time credits in the calculation of unconditional release dates for inmates who received sentences of life imprisonment.” (Emphasis added.) This finding was based on competent testimony from respondent Alvin Keller, Secretary of DOC, and from Teresa O‘Brien, an employee in DOC‘s Combined Records Section.3 “[F]indings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if ... there is evidence to the contrary.” Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010) (alterations in original) (citations and internal quotation marks omitted). Thus, this Court is bound by the finding that DOC has never applied good time, gain time, or merit time credits to calculate an unconditional release date for any inmate sentenced to life imprisonment.
Moreover, the majority correctly concludes that neither the General Statutes nor DOC‘s regulations give Jones any right to have his time credits applied for purposes of unconditional release. In general, we accord significant deference to the manner in which a statute is interpreted by the executive agency charged with enforcing it, Frye Reg‘l Med. Ctr., Inc. v. Hunt, 350 N.C. 39, 45, 510 S.E.2d 159, 163 (1999) (citation omitted), and we give controlling weight to an agency‘s interpretation of its own regulations unless that interpreta-tion is “plainly erroneous or inconsistent with the regulation[s],”
Jones contends that he has a due process liberty interest in having his good time, gain time, and merit time credits applied for unconditional release purposes. However, as demonstrated above, the relevant statutes and regulations do not give inmates sentenced to life imprisonment any such right, nor has DOC vested life inmates with such a right through its manner of administering those statutes and regulations. Thus, life inmates like Jones can claim no liberty interest in having time credits applied to calculate their unconditional release dates.
Jones argues further: “The unequal treatment of Mr. Jones’ sentence, and that of other inmates in the Bowden-class, amounts to a classic violation of equal protection laws.” (Emphasis added.) The “Bowden-class” of inmates to which Jones refers is the group of inmates sentenced to life imprisonment for crimes committed between 8 April 1974 and 30 June 1978. Jones goes on to contend that “[his] life sentence is identical to a term of 80-years.” (Emphasis added.) In other words, Jones argues that life sentences imposed under the 1974 version of section 14-2 are indistinguishable from ordinary term-of-years sentences and that DOC has, therefore, violated equal protection by treating his class of life inmates differently from term-of-years inmates. While I do not disagree with the majority‘s equal protection analysis, I believe there is a more direct way to respond to Jones‘s precise argument.
Jones‘s contention that his class of life inmates is no different from term-of-years inmates ignores the fact that section 14-2 does not abolish life sentences or render them indistinguishable from ordinary term-of-years sentences. Rather, in providing a definition for “[a] sentence of life imprisonment,” section 14-2 explicitly retains life imprisonment as a special sentence status.
Based on the General Assembly‘s intent to continue distinguishing life sentences (even those with an unconditional release date of eighty years) from term-of-years sentences, Jones is similarly situated to other life inmates, not to term-of-years inmates. As the trial court found, DOC has never used time credits to calculate unconditional release dates for inmates sentenced to life imprisonment. Thus, DOC has not subjected Jones to disparate treatment in comparison with other similarly situated inmates. Jones and other inmates sentenced to life imprisonment have been treated differently from ordinary term-of-years inmates, but the Supreme Court of the United States has said that if a law involving disparate treatment does not infringe upon a fundamental right or target a suspect class, the classification is permissible as long as it bears a rational relation to some legitimate end. Heller v. Doe, 509 U.S. 312, 319-20, 113 S. Ct. 2637, 2642, 125 L. Ed. 2d 257, 270 (1993) (citations omitted). Jones has not demonstrated any right, let alone a fundamental right, to have his time credits applied to his sentence for all possible purposes, nor has he shown that inmates sentenced to life imprisonment are a suspect class. Because DOC‘s disparate treatment of life inmates relative to term-of-years inmates is rationally related to the legitimate State ends of punishing heinous crimes with greater severity and ensuring public safety, Jones‘s equal protection claim fails.
Having stated the foregoing, I concur in the result of the majority‘s opinion.
Justice BRADY joins in this concurring opinion.
Justice TIMMONS-GOODSON dissenting.
The rule of law, consistency, and fundamental fairness are not advanced by today‘s decision allowing the Department of Correction (DOC) to withhold inmate Alford Jones‘s accumulated sentence reduction credits. This decision violates the DOC‘s own regulations and policies, Jones‘s constitutional rights, and the doctrine of separation of powers. And by doing so, I fear that a cornerstone of our legal system, the writ of habeas corpus, is devalued. The undisputed
This case arises out of a mistake of law by the DOC that it now seeks to rectify through unwritten, retrospective policy pronouncements some thirty-five years after the fact. The DOC says the department believed that the “life” sentence imposed upon Jones was a sentence of natural life rather than the eighty-year sentence he was actually serving. The DOC awarded Jones sentence reduction credits but putatively believed that those credits would only shorten Jones‘s sentence in the event of a commutation by the governor. Expecting that the sentence reduction credits earned by Jones would never be utilized, the DOC continued to award Jones sentence reduction credits pursuant to DOC policies and regulations without placing any limitations upon the use of such credits.
This Court‘s 1978 decisions in State v. Richardson and State v. Williams cast doubt on the grounds upon which the DOC based its belief that
Despite our decisions in Richardson and Williams, it was only after inmate Bobby Bowden filed a writ of habeas corpus—contesting the lawfulness of his continued incarceration and requesting immediate release from his sentence—that the DOC altered the nature of the sentence reduction credits awarded to Jones, Bowden, and other similarly situated inmates. See State v. Bowden, 193 N.C. App. 597, 598, 668 S.E.2d 107, 108 (2008), disc. rev. improvidently
The question for this Court is therefore whether the DOC may now legally withhold the credits it has awarded Jones. In order to answer this question, I first examine the nature of Jones‘s interest in his sentence reduction credits.
The United States Supreme Court has explained that, although an inmate‘s “rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555-56, 41 L. Ed. 2d 935, 950 (1974); see also State v. Primes, 314 N.C. 202, 208, 333 S.E.2d 278, 281 (1985) (stating that “basic constitutional rights adhere inside as well as outside the prison walls” (citations omitted)); Goble v. Bounds, 281 N.C. 307, 311, 188 S.E.2d 347, 349 (1972) (affirming that “a prisoner takes with him into the prison certain rights which may not be denied him“) (citing Lee v. Washington, 390 U.S. 333, 19 L. Ed. 2d 1212 (1968) (per curiam)). Prisoners “may not be deprived of life, liberty, or property without due process of law.” Wolff, 418 U.S. at 556, 41 L. Ed. 2d at 951 (citations omitted). The United States Supreme Court has specifically recognized that pris-oners have a protected liberty interest in avoiding the withdrawal of sentence reduction credits awarded pursuant to state laws or poli-cies. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 221, 162 L. Ed. 2d 174, 189 (2005) (noting that a prisoner‘s liberty interest “may arise from an expectation or interest created by state laws or policies” and that prisoners have a “liberty interest in avoiding withdrawal of [a] state-created system of good-time credits” (citing Wolff, 418 U.S. at 556-58, 41 L. Ed. 2d at 950-51)); Weaver v. Graham, 450 U.S. 24, 25, 35-36, 67 L. Ed. 2d 17, 20-21, 27-28 (1981) (determining that a statu-tory alteration reducing the availability of gain time for inmates’ good conduct violated the prohibition against ex post facto laws and was
In the instant case the General Assembly authorized prison rules and regulations granting “rewards and privileges” to inmates “as an inducement to good conduct.”
Indeed, at oral argument counsel for the DOC agreed that if sen-tence reduction credits were in fact “awarded” to Jones, he would have a corresponding liberty interest in those credits under Wolff that could not be denied absent procedural due process. However, coun-sel for the DOC denied that the sentence reduction credits had been awarded to Jones, asserting instead that the credits had only been “stored.” This assertion flatly contradicts the trial court‘s finding that Jones “has been awarded good time, gain time, and merit time cred-its by the Department of Correction based on his conduct and his par-ticipation in the [work release and other related] programs.” The DOC has not challenged any of the trial court‘s findings of fact and these findings are therefore binding.
Having determined that Jones has a protected liberty interest in the sentence reduction credits awarded him pursuant to State-created regulations and policies, I now consider whether the DOC may legally withhold the sentence reduction credits earned by Jones. The DOC essentially argues that because it has fundamentally misap-prehended the nature of Jones‘s sentence for the past thirty years, it
As the majority explains, the United States Supreme Court has recognized that a prisoner‘s liberty interest is constitutionally pro-tected by procedural due process when that liberty interest is created by the State. Wolff, 418 U.S. at 555-58, 41 L. Ed. 2d at 950-52. The Court held in Wolff that a prisoner‘s liberty interest “has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the cir-cumstances and required by the Due Process Clause to insure that the State-created right is not arbitrarily abrogated.” Id. at 557, 41 L. Ed. 2d at 951. Accordingly, Jones‘s liberty interest in the sentence reduction credits cannot be diminished by the DOC without giving an adequate level of process. Yet the DOC provided no process whatso-ever before attempting to change the applicability of Jones‘s good time, gain time, and merit time credits. The majority effectively con-cedes that some process is due by suggesting that the parole process is sufficient. However, the opinion leaves unexplained how the dis-cretionary review of parole is relevant in a discussion of sentence reduction credits, a constitutionally protected interest. In the end, by providing no process prior to withholding Jones‘s sentence reduction credits, the DOC violated Jones‘s constitutional right to procedural due process.
Moreover, the DOC has no authority to impose a term of impris-onment other than the sentence handed down by the trial court. See State v. Allen, 346 N.C. 731, 737, 488 S.E.2d 188, 191 (1997) (stating that “[t]his Court has already settled that the General Assembly alone prescribes the maximum and minimum punishment which can be imposed on those convicted of crimes” (citation omitted)). The trial court sentenced Jones to a term of life imprisonment, which at the time was defined as a term of eighty years. The DOC is, and was at all times, therefore obligated to treat Jones‘s sentence as a determinate sentence of eighty years. To do otherwise violates the doctrine of separation of powers. See Jernigan v. State, 279 N.C. 556, 564, 184 S.E.2d 259, 265 (1971) (” ‘The manner of executing the sentence and the mitigation of punishment are determined by the legislative department, and what the Legislature has determined in that regard must be put in force and effect by administrative officers.’ ” (quoting
The majority concludes, however, that Jones is not entitled to the benefit of the sentence reduction credits he has earned. I note that the majority accepts the following facts: (1) Jones was sentenced to a determinate term of imprisonment of eighty years. (2) While incar-cerated, Jones earned good time, gain time, and merit time credits (sentence reduction credits) pursuant to DOC regulations and poli-cies. (3) As of 30 November 2009, Jones‘s good time credit totaled 14,041 days; his gain time credits totaled 2146 days; and his merit time credit totaled 1745 days. (4) Under DOC regulations and poli-cies, gain time credits and merit time credits are not subject to for-feiture. (5) Good time credits may be forfeited, but only for reasons specified in the DOC regulations, such as major infractions. (6) Under DOC regulations, good time, gain time, and merit time credits operate to reduce the length of an inmate‘s sentence. (7) The DOC regulations do not specify or limit the purposes for which sentence reduction credits are awarded.
Despite acknowledgment of these facts, the decision counte-nances the DOC‘s retrospective and unreasonable interpretation of its regulations, thereby abdicating the judiciary‘s solemn duty to check arbitrary acts by the other branches. See Long v. Watts, 183 N.C. 99, 113, 110 S.E. 765, 768 (1922) (stating that an independent judiciary must be secure against, inter alia, “the arbitrary authority of the administrative heads of government“). In addition, the major-ity fails to recognize that the DOC‘s position is not based upon any “interpretation” of its regulations. Rather, the DOC‘s position contra-venes the regulations themselves. Nothing in any relevant provision of the North Carolina General Statutes, the North Carolina Administrative Code, the DOC‘s policies, procedures, or regulations, or North Carolina case law precedent specifically authorizes the
To the contrary, the DOC plainly sets forth the procedures by which Jones has earned sentence reduction credits. DOC policies and procedures establish “the rules and methods for computing sen-tence reduction credits in the form of Good Time for satisfactory behavior, Gain and Earned Time for participation in work or program assignments, and Meritorious Time for exemplary acts or for working under emergency conditions, and working overtime or for program achievement.” Div. of Prisons, N.C. Dep‘t of Corr., Policy and Procedures ch. B, § .0109 (Oct. 5, 2007). The DOC defines “Sen-tence Reduction Credits” as “[t]ime credits applied to an inmate‘s sentence that reduces the amount of time to be served. These credits are called Good Time, Gain Time, Earned Time and Meritorious Time.”
Despite the lack of textual support for the DOC‘s position, the majority nonetheless reasons that the DOC has “implicit authority” to determine the purposes for which sentence reduction credits may be awarded and posits that “an award of time by [the] DOC need not be an all-or-nothing award for unlimited uses.” I agree that the Secretary of Correction is fully authorized to “issue regulations” and “adopt rules” limiting the purposes for which sentence reduction credits
DOC regulations involving sentence reduction credits are not minor. Whether an inmate has fully served his sentence and is en-titled to release from imprisonment is a question deeply implicating fundamental constitutional rights. See Wolff, 418 U.S. at 555-58, 41 L. Ed. 2d at 950-52. The majority asserts that Jones‘s liberty interest in his sentence reduction credits is “de minimis” and that the State may “control the contours of the liberty interest it creates.” The majority cites no authority for this pronouncement, which conflicts with the United States Supreme Court‘s decisions in Wolff and Weaver. Accordingly, this Court should reject the DOC‘s unwritten, retrospec-tive “interpretation,” which is contrary to Jones‘s liberty interest and the unambiguous letter of the relevant regulations and statutes.
Jones does not challenge the DOC‘s authority to formulate rules and regulations. He asks only that the DOC abide by them. This Court has recognized that an inmate may “earn” a “right to honor grade status” and is ” ‘entitled’ ” to release after ” ‘full service of his sentence less good time earned during incarceration.’ ” Goble, 281 N.C. at 311, 188 S.E.2d at 349-50 (emphasis added) (quoting Menechino v. Oswald, 430 F.2d 403, 408 2d Cir. 1970 (1970), cert. denied, 400 U.S. 1023, 27 L. Ed. 2d 635 (1971)). Jones has earned his sentence reduction credits in accordance with DOC policies and reg-ulations and is now entitled to release. I do not believe that a decision by this Court requiring the DOC to follow its own policies and proce-dures—which the Secretary of Correction is free to alter at any time—usurps or interferes with the power or authority of the DOC.
This is a hard case. The lives of the victim and his family have been forever changed by Jones‘s criminal conduct. Public attention has been excited by the possibility of release of those previously committed to life sentences. The late United States Supreme Court Justice Oliver Wendell Holmes appropriately cautioned against allow-ing “immediate interests [to] exercise a kind of hydraulic pressure which makes what was previously clear seem doubtful, and before which even well settled principles of law will bend.” N. Securities Co. v. U.S., 193 U.S. 197, 400-01, 48 L. Ed. 679, 726 (1904) (Holmes, J., dissenting). Many would argue that the breaking point has been reached in this case.
Because withholding Jones‘s accumulated sentence reduction credits condones spontaneous rule-making by the DOC and violates the DOC‘s own regulations, Jones‘s constitutional rights, and the doc-trine of separation of powers, I would affirm the order of the trial court allowing Jones‘s petition for writ of habeas corpus.
Justice HUDSON joins in this dissenting opinion.