TITLE: Managing Prison Growth in North Carolina Through Structured Sentencing.
Series: NIJ Program Focus 
Author: Ronald F. Wright
Published: February 1998 
Subject: Sentencing, Corrections
33 pages 
58,000 bytes

------------------------------

Figures, charts, forms, and tables are not
included in this ASCII plain-text file. To view
this document in its entirety, download the Adobe
Acrobat graphic file available from this Web site
or order a print copy from NCJRS at 800-851-3420.

------------------------------

U.S. Department of Justice 
Office of Justice Programs 
National Institute of Justice

Program Focus

Managing Prison Growth in North Carolina Through
Structured Sentencing

by Ronald F. Wright

Not long ago, North Carolina's prison cells were
full, but they held too many of the wrong
people--nonviolent, low-priority felons. The
sentencing system was variable and uneven.
Offenders served very small portions of the
sentences that judges imposed. A typical offender,
after remaining in detention for several weeks or
months between the time of arrest and the judge's
imposition of sentence after conviction, often had
no time remaining to be served on the sentence,
even for a relatively serious felony. Hence, the
Parole Commission was forced to release many
violators almost immediately after their sentences
were imposed. The Parole Commission was also
obliged to release more felons more quickly
because admissions to prison were increasing much
faster than prison capacity. 

The problems of the system also extended to
probation, restitution, and other nonprison
punishments. Offenders sentenced to nonprison
sanctions had every reason to violate the terms of
their probation because the threatened prison time
for probation revocation was so brief--often only
a few days or weeks. Most offenders would choose
to spend a few days in jail rather than deal with
a treatment program or a probation officer for a
few years. In the view of some judges and
prosecutors, this situation effectively
decriminalized misdemeanors and trivialized felony
convictions.

North Carolina's system today is turning around.
Not all the problems have disappeared, and new
ones keep emerging. But the reliance on guidelines
to structure decisions about the use and duration
of confinement has created a more promising future
for criminal justice in the State. Structured
sentencing appears to have matched correctional
resources to sentencing policy. It has maintained
equilibrium through the first few legislative
sessions even when the political conditions
favored much more dramatic growth in prison
capacity. 

Structured sentencing has proved stable and
attractive to a changing cast of State
policymakers for two basic reasons. First, the
North Carolina Sentencing and Policy Advisory
Commission was able to provide accurate and
objective information to legislators of all
political persuasions. The information simply laid
out the fiscal and penal consequences of proposed
policies. Second, State and local officials were
able to develop intermediate sanctions as
alternatives to prison and to control access to
those sanctions. The availability and credibility
of these sanctions, which still allowed the State
to maintain some serious control over offenders
outside prison, made the lack of prison terms for
lower-level crimes more palatable. The combination
of believable cost projections and credible
nonprison sanctions appears to have slowed prison
population growth.[1]

Conditions Before 1993 

By the late 1980s, almost everyone had reason to
be unhappy with North Carolina's sentencing and
correctional system. The prisons were full, and
nonprison sanctions worked poorly without the
threat of prison time. 

This was not the first difficult time for North
Carolina's sentencing system. Prison crowding and
concern about uneven sentencing practices led to
the passage of the 1979 Fair Sentencing Act, which
specified the presumptive sentences assigned to
each felony. The Act resembled similar reform
statutes passed about the same time in California,
Illinois, Colorado, and other States. Judges could
sentence offenders to prison terms longer or
shorter than the presumptive sentence if they
adequately explained their decision on the record.

The Act promised to bring more uniformity and
predictability to felony sentences in North
Carolina, but it delivered on these promises for
only the first 2 or 3 years. As the State's
population rose, the number of convictions
increased; this, coupled with the longer
presumptive sentences in the statutes, led to
crowded prisons.[2]

The State did not respond to the crowding by
increasing prison capacity. For most of the 1980s,
virtually no new prison beds were added. Instead,
as more and more prisoners entered the system, the
Parole Commission released some felons earlier
than they might have otherwise. Sentencing judges
became frustrated as they watched the gap grow
between the sentences they imposed and the time
offenders served. They responded by taking
advantage of the Fair Sentencing Act to impose
longer sentences than the presumptive levels. The
gap grew larger still. 

As the time served for prison sentences declined,
offenders sentenced to nonprison punishments (with
suspended prison terms) also began to view a short
prison term as the most attractive sentence
available. These defendants opted for shorter
prison terms rather than longer probation terms (a
right guaranteed to them under the State
constitution) or intentionally violated the terms
of their probation so it would be revoked and they
could finish their punishment with a shorter,
easier prison term. When the prison system had to
make room for the increasing number of probation
revocations, crowding only got worse. 

The Development of Sentencing Guidelines (1990-93) 

By 1990, the system had deteriorated so badly that
an overhaul was necessary. Recognizing the
complexity of the system, which had many connected
parts, the General Assembly created a Sentencing
and Policy Advisory Commission to propose
comprehensive changes. After 2 years of study, the
commission proposed a sentencing structure now
familiar in other "guideline" States. (See "The
Structured Sentencing Movement.")

The proposed guidelines ranked felony offenses
using levels of severity that reserved long prison
sentences for violent offenders causing bodily
harm. The guidelines also used three levels to
rank misdemeanors in an effort to prevent
uncontrolled use of jails to bypass prison limits. 

How the sentencing commission ranked offenses. The
rankings for offense seriousness created the
vertical axis of a sentencing grid (see exhibit
1), a format now used in almost all guideline
States. The prior criminal record of the
offender--the second major variable in the
sentence--created the horizontal axis of the grid.
The commission's proposal assigned points for
every prior felony or misdemeanor, with more
points assigned for more serious offenses (see
exhibit 2). Offenders with lengthier prior records
would move from left to right on the grid. A
simplified point system measured the prior
criminal records of misdemeanants (see exhibit 3,
"Misdemeanor Punishment Chart"). 

Most boxes in the proposed grid specified a single
type of sentence or disposition. The three
dispositions were "community" punishments
(programs such as outpatient drug treatment or
unsupervised probation that provided minimal
control of the offender), "intermediate"
punishments (nonprison sanctions requiring more
intensive supervision, such as boot camp or day
reporting centers), or "active" punishment (a
prison term that must be served rather than
suspended). Community sanctions were available in
the lower areas of the grid, the cells involving
the least serious crimes and the least extensive
prior records. Grid boxes on the border between
community sanctions and intermediate sanctions or
on the border between intermediate sanctions and
prison gave the judge the option of choosing
between the two sanctions.

In most cases, the new guidelines gave judges no
power to depart from the sentencing range but did
allow judges to choose among three different
sentencing ranges: an ordinary or "presumptive"
range, an "aggravated" range, and a "mitigated"
range of authorized sentence lengths. The judge
could choose from the aggravated or mitigated
range (spanning 25 percent above and below the
presumptive range) after explaining on the record
why the case was unusual. Both the prosecutor and
defense attorney could appeal such a decision. 

Keeping costs down. The durations of the sentences
specified in the guidelines would ultimately
determine both the cost and the political
feasibility of the plan. The commissioners started
with durations based on their collective estimates
of what different crimes deserved. Those first
durations produced shocking cost estimates of the
amount of prison space necessary--more than $1
billion in construction costs. After several
months of further study and deliberation, the
commission revised the durations downward. 

When the commission submitted its interim report
to the General Assembly in 1992, the legislators
returned a clear signal that new prison costs
should be kept to a minimum. They instructed the
commission to submit at least one proposal that
required no immediate prison construction beyond
the new facilities already financed by a recent
bond issue of $250 million. The voters had
approved prison construction bonds by the slimmest
of margins. 

The commission reluctantly complied with the
legislature's instructions, and in its 1993 report
recommended that the legislature adopt a plan that
called for more than 10,000 new prison beds during
the first 5 years to handle an increase of 8,000
felony inmates (from 23,000 to 31,000), along with
additional space that would be needed for those
serving the longest misdemeanor sentences.[3]A
minority report argued that these increases were
not enough. 

The final pages of the report contained a
"Standard Operating Capacity" (SOC) plan that
required no new growth in prison capacity during
the first few years of operation. The SOC plan
reduced prison requirements by reducing both the
impact of an offender's prior record and the
durations in all the grid boxes. The report stated
that the SOC plan was "submitted without
recommendation"; most commissioners felt that the
SOC plan was not adequate to meet the State's
needs. 

A relatively small leadership group in both houses
of the General Assembly dominated the debate over
the commission's final proposals. Soon after the
report was submitted, it became clear that the SOC
plan would receive the closest attention. In a
legislative session dominated by a search for
health care and education dollars, there was no
sentiment within the leadership group or elsewhere
in the General Assembly for funding much new
prison construction in 1993. 

It is noteworthy that the General Assembly rather
than the more politically insulated sentencing
commission pressed for the more politically
unpopular alternative punishments. In States that
had passed guidelines before 1993, legislatures,
not sentencing commissions, had shown the most
enthusiasm for prison system growth. In North
Carolina, however, the sentencing commission
called for faster growth in the prison system,
while the General Assembly held out for cheaper
alternatives to prison (at least for some lower
level felons). Hence, North Carolina's legislature
and the sentencing commission reversed the roles
typically played in sentencing reform.[4] Perhaps
the legislature's need to balance spending on the
correctional system with spending on health care
and other needs gave it a broader perspective than
the sentencing commission, which had devoted 2
years to one set of problems. 

Community and Intermediate Punishments Under the
Guidelines

The proposed sentencing guidelines were
politically acceptable to the legislature in 1993
because they combined three attractive features.
First, they increased both the percentage of
serious felons receiving prison terms and the
length of time they would serve. Second, they
brought the sentence served much closer to the
sentence imposed by the judge, rendering higher
credibility for the sentencing judge and greater
public confidence in the system. Third, the
increases in sentences were to take place (at
least under the original legislation) with no
costly increase in the State's prison capacity. 

Using community corrections and intermediate
sanctions to make punishment more cost-effective.
The only way to accomplish all three objectives
without a major increase in the prison system was
to send fewer people to prison for lengthier
terms. As a result, the guidelines prescribed
diversion of some offenders from prison terms to
community and intermediate sanctions. They did so
by allowing most misdemeanants and the least
serious felons to be sentenced to nonprison
sanctions. (See exhibit 1 above.) Class I felonies
committed by offenders with no serious prior
criminal record, for example, could result only in
community sanctions. 

Limiting sentences for the least serious felonies
was crucial if the system was to obtain its
objectives of controlling prison costs while
imposing lengthier, more certain terms on serious
felons. The limit would prove unpopular with
judges, prosecutors, and other important
constituent groups, but commission members, who
were also criminal justice professionals,
practitioners, and policymakers, convinced their
constituencies that the tradeoff was necessary.
Commissioners and their staffs made presentations
to other groups, such as the State's bar
association, to explain how the range of
punishments would allow confinement of the most
serious felons for longer terms while keeping
prison costs down.

The range of available options for community
corrections made the tradeoff more palatable for
many groups by giving the judge credible forms of
nonprison sanctions. Too often the choice between
prison and probation had been perceived as an "all
or nothing" choice. In light of the ordinary
probation officer's large caseload, it was
probably true that probation had not been an
onerous or effective punishment for many
offenders. 

Some of the sentencing grid cells called for
intermediate sanctions such as electronic
monitoring or residential treatment, which
emphasize control of the offender outside the
prison setting. Others called for community
sanctions that include community service or
outpatient drug treatment with components for
skills development. Thus, under the guidelines,
there was no immediate dropoff from active prison
terms to unsupervised probation.

Building on existing community corrections
programs. Another factor that made the guidelines
more palatable was the familiarity and proven
workability of the nonprison alternatives.
Throughout the 1980s, State corrections officials
had been developing community corrections programs
that put North Carolina among the first to develop
intensive probation, community service, and house
arrest programs. Local community corrections
activities, run by cities, counties, and private
foundations, also thrived in some parts of the
State. Judges had imposed these sanctions on
smaller groups of offenders for several years
before the guidelines were adopted.[5]

When the time came to integrate community
corrections and intermediate sanctions into the
new sentencing guidelines, the sentencing
commission and the Department of Correction
maintained the familiar existing programs, keeping
the mix of State and local administration of
programs. The guideline drafters showed early
versions of the proposed guidelines to the
administrators of the existing community
corrections programs and asked for a 5-year plan
for expansion under the new sentencing structure. 

The planning process made it possible to present a
unified vision and budget to the General Assembly
that gave a realistic estimate of the capacity of
the current programs to expand and the money
necessary to do so. 

The viability of the guidelines depended on the
continued willingness of legislators, judges--and
ultimately the public--to sentence some classes of
offenders to nonprison sanctions. These efforts by
the creators of the guidelines to increase the
variety and number of program slots available--
efforts that built on a history of workable
community corrections programs in North
Carolina--were an important first step. The
willingness to continue funding and adjusting
programs would be the next step toward a stable
and healthy sentencing system. 

Guideline Changes in the 1994 Legislative Session 

The sentencing guidelines in North Carolina remain
a creature of the legislature. The sentencing
commission's primary role involves monitoring the
operation of the guidelines, making
recommendations about revisions and their likely
consequences, and helping legislators draft bills. 

After structured sentencing legislation passed in
1993, the sentencing commission began to plan its
agenda for the future. The commission anticipated
spending much of its time in 1994 training
prosecutors, defense lawyers, judges, and court
personnel to use the new guidelines. But events
soon made it clear that training would not remain
the center of attention. 

North Carolina citizens, like those in many other
States, became increasingly anxious about crime.
After the 1993 murder of Michael Jordan's father
and a spate of other violent crimes, Governor
James Hunt called a special session of the
legislature to address crime. For 7 weeks in
February and March 1994, legislators introduced
more than 400 new crime bills. Many dealt with
punishments for sexual assault and the use of
weapons. Others embodied some variety of "three
strikes and you're out" punishments--sentencing
repeat felons to life imprisonment without
possibility of parole--which were gaining
attention at the same time in about half the State
legislatures. 

Use of impact statements to inform legislative
policy on corrections. A 1993 statute required the
legislature to obtain a fiscal impact statement
before making any change to sentencing laws.[6]The
sentencing commission prepared these impact
statements with supplementary data supplied by the
research arm of the State legislature. The impact
statements estimated the number of new prisoners a
sentencing bill would add to the system by
determining the annual number of convictions in
recent years for the relevant crime; projecting
any increases in convictions for that crime in the
near future using a multiplier figure suggested by
an expert advisory committee; and calculating the
number of prison beds necessary over different
time intervals if the estimated number of those
convicted were sentenced to the midpoint of the
punishments designated in the bill. 

Robin Lubitz, then executive director of the
commission, delivered the impact statements in a
way designed to make the cost of corrections a
vital part of the lawmakers' deliberations rather
than just an afterthought. Lubitz met privately
with lawmakers as soon as possible after a
sentencing bill was introduced. Delivering the
impact statements early and in private made it
easier for sponsors to alter or withdraw the bill
before taking a public stand. (See "The Persuasive
Power of Numbers.")

By the end of the session, the legislature had
passed a three-strikes law as well as a law
increasing penalties for crimes committed while
using or carrying a gun and new punishments for
rape.[7] In each case, the commission's analysis
had a sobering effect on the legislators, who
amended all the bills to reduce their impact on
prison population. The bills, as introduced, would
have increased the population by well over 20,000
beds within 10 years, doubling current prison
usage. The bills passed during the 1994 special
session will require about 2,000 new beds within
10 years. 

Amendments to the habitual-felon statute. One
legislative change to the sentencing guidelines
will have an effect more difficult to predict. The
legislature amended the existing habitual-felon
statute by changing conviction under the statute
from a Class D to a Class C offense and allowing
the statute to be applied after any three prior
felonies.[8]

The commission did not publicly oppose this
broadening of the habitual-felon statute, which
now gave formidable power to prosecutors, perhaps
because prosecutors had used the law sparingly in
the past.[9] The amended version enabled
prosecutors to increase the presumptive sentence
for almost all the offenders in about 20 of the 54
cells in the felony sentencing grid (see "Prior
Record Level" in exhibit 1). It may be that
prosecutors have been filing habitual-felon
charges much more often than is reflected in the
modest number of convictions. Many prosecutors
believe that the habitual-felon charge gives them
leverage during plea bargaining negotiations. As a
result, the habitual-felon law may be quietly
influencing the sentences imposed in a greater
number of cases than the number of convictions
would indicate. Habitual-felon prosecutions are
likely to remain a pressure point in the system
for years to come. 

Funding for community corrections. The sentencing
commission spent most of its efforts during the
1994 legislative sessions reacting to the many
proposals that would increase the use of prison
cells. By the end of the session, the General
Assembly had fully funded the prison construction
necessary to operate within the sentencing
guidelines until 2001. Equally important, however,
were appropriation decisions related to community
corrections.

Corrections officials feared that legislators
would perceive community corrections to have lower
priority than prison and enforcement funding. In
1994, however, the legislature funded the
expansion in community corrections without
controversy and with few conditions, including
full funding for probation personnel to support
new community corrections and intermediate
sanctions. 

The sentencing guidelines determined the total
number of intermediate sanctions and community
corrections slots that would be necessary, but
neither the guidelines nor the appropriations
bills determined which intermediate and community
corrections programs would be expanded.
Corrections officials and local officials were
free to develop proposals as they saw fit to
anticipate the choices of judges and the needs of
offenders across the State. Day reporting centers
became one of the most quickly expanding types of
programs. 

There were a few explanations for the
legislature's willingness to pay for an expansion
of community corrections and intermediate
sanctions.

First, no organized opposition group believed that
its interests would be harmed by funding community
corrections. During the creation of the sentencing
guidelines, advocates of prison growth and
advocates of alternative sanctions found common
ground within the sentencing commission. The
debates about sentencing guidelines convinced all
parties that both prison and nonprison sanctions
required attention and growth. This perspective
was especially easy to hold during 1994 because
the legislature passed new community corrections
funding during the same session in which it made
modest expansions to prisons, keeping everyone
happy. 

Second, the proposal for complete funding of
community corrections received clear backing from
county and municipal officials who understood that
if the State did not fund the necessary programs,
it would prove costly at the local level. The
cities and counties would have to pay for the
programs, in terms of either money or local jail
cells or funds for local community corrections
programs. 

Third, the community corrections budget received
unified support from the various State agencies
and nonprofit groups that operated community
corrections programs. 

In the past, each of the existing community
corrections programs had submitted independent
budget proposals. Under the auspices of the
sentencing commission and the Department of
Correction, these programs submitted a unified
budget to the legislature. What had been diffuse
political support for community corrections was
collected behind one budget proposal.

Guideline Changes in the 1995 Legislative Session

When October 1, 1994, arrived (the effective date
for guideline sentencing), the new system faced
tranquil and promising conditions. The sentencing
commission had reached agreement on controversial
choices in designing the guidelines and was
working on much less divisive issues such as
restitution. The State was receiving favorable
attention in national newspapers in the wake of
the 1993 decision to adopt guidelines. Both Robin
Lubitz and Judge Thomas Ross, the chair of the
commission, received national recognition for
their work. 

The November 1994 elections, however, introduced a
large element of uncertainty for the upcoming 1995
legislative session. During the 1994 election
campaign, some campaign literature claimed that
the new sentencing laws were too lenient for
crimes committed against children. Under the
heading "NO REQUIRED PRISON TIME," a flier listed
crimes such as child abuse, infliction of serious
injury, and sale of drugs to a minor. The flier
failed to mention that active prison terms were
not required for these crimes under pre-1993 laws,
either, nor did it point out that a prison
sentence was authorized for these crimes (even if
not required) under the new law. A number of
veteran Republican legislators objected to the
flier, some quietly and others more vocally. All
but two of the Republican members of the General
Assembly had voted in favor of structured
sentencing in 1993 and considered it a real
improvement over the pre-1993 laws.  

In the face of this criticism, the flier got a
lukewarm response. A few candidates used the flier
actively, but the majority of candidates for
legislative office, Republican and Democrat alike,
kept their remarks about crime and sentencing at a
more general level and did not rely on the
literally true but misleading claims of the flier.
In the end, the voters sent 24 Republicans to the
Senate (out of a possible 50 seats) and 68
Republicans to the House (out of a possible 120
seats). For the first time since Reconstruction,
Republicans gained the majority in the North
Carolina House of Representatives, and the
Democrats' majority in the Senate was reduced to
two. Although Republicans had overwhelmingly
supported the 1993 sentencing guideline
legislation, a few new Republican candidates
vigorously attacked them for being too lenient.    

After the election, freshman Republican
legislators softened their position; they
suggested that wholesale repeal of sentencing
guidelines was unlikely and aimed instead for
larger sentencing changes than had been produced
during the 1994 session. 

The House Republicans claimed that North Carolina
lagged behind other States in the punishment of
criminals. National imprisonment rates confirmed
their assertion. Whether by default or considered
policy, North Carolina had expanded its prison
system far less quickly than most other States
during the 1980s and 1990s. In 1972, North
Carolina incarcerated 160 citizens per 100,000,
the third highest rate in the Nation (behind
Georgia and the District of Columbia). While the
rate of incarceration climbed steadily in the
State over the next 20 years, it grew far more
quickly in other States. By 1987, North Carolina
ranked 15th in the level of incarceration; in
1989, for the first time, the State's rate fell
below the national average. By 1992, the State's
rate of 290 per 100,000 placed it 22nd among the
States, and 14th among 17 States in the
region.[10] These changes, it should be noted,
occurred before the sentencing commission was
established. 

Despite the initial calls for harsher sentences
and increases in prison capacity, the 1995 session
ended with changes that had a larger impact than
the 1994 statutes but were considerably less
expensive than the bills initially proposed. The
1994 statutes carried a predicted increase of
about 2,000 new prison beds over 10 years. The
1995 amendments combined for an estimated increase
of about 2,100 prison beds over 5 years and about
3,200 beds over 10 years. At the end of the 1995
session, the commission estimated that the State's
total prison population after 10 years would
remain near 38,000.

One change in 1995 involved an increase in the
duration of prison terms for the most serious
offenses (Classes B2 through D), including
statutory rape. Because relatively few offenders
entering the system are convicted of these
offenses, however, the fiscal cost of these new
laws was projected to be small. 

The largest increases in the use of prison under
the guidelines came from changes in the handling
of assault cases. Some misdemeanor assault crimes
were assigned to a new "A1" misdemeanor category
to allow judges to impose a prison term. The
commission estimated, based on preguideline
sentencing practices, that the great majority of
assault cases would continue to receive community
or intermediate sanctions, but the availability of
prison terms for these crimes removed one major
complaint about the guidelines. The sentences that
judges impose for assault crimes will bear
watching in the next few years. 

Explanations for Controlled Increases in Length of
Sentences

What can explain the 1995 General Assembly's
fairly modest changes to the sentencing guidelines
and the prison system? As in the previous year,
cost estimates that the Sentencing Commission
provided to legislators who sponsored important
bills played a critical role. 

When legislators saw the cost of their proposals,
they made adjustments that preserved the intent of
the policy but lowered the cost considerably.
Budgetary concerns carried the day. 

Some legislators in 1995 argued for repealing the
statute that required them to obtain prison
population and cost estimates for any proposed
change in sentencing law. The cost estimates for
building the required new prison facilities were
especially suspect because construction design and
cost could not be estimated precisely. Some
legislators maintained that prisons could be built
for a lower price even if they were only Quonset
huts surrounded by fences. 

Yet, by the end of the legislative session, most
General Assembly members were convinced that the
sentencing commission and the legislative staff
researchers were making it possible for them to
make more informed and responsible choices. 

There was a second reason for the legislature's
moderation in its sentencing amendments. It
deferred, in the end, to criminal justice
professionals with strong hands-on experience in
sentencing practices--judges, prosecutors, and
corrections officials. Although many proposals
from many different sources were considered, the
legislature gave final approval only to changes
that had substantial support from these criminal
justice professionals. Perhaps the only major
group with official responsibilities in the
day-to-day processing of criminal cases that had
no visible influence on the commission or the
legislature consisted of criminal defense
attorneys.

The influence of criminal justice system
participants was especially apparent during
debates over an integrated package of changes in
assault laws that the commission had endorsed. The
commission had formulated its assault crimes
package after listening carefully to feedback on
the guidelines from criminal justice
practitioners. During the commission's training
sessions for prosecutors, judges, probation
officers, defense attorneys, and others on the use
of the guidelines, many participants expressed
concern about misdemeanor assaults. The number of
complaints convinced the sentencing commission
that change was necessary. 

The real question about legislative moderation,
however, is not how to explain the outcomes in
1994 or 1995. The real question must look to the
future. Will the legislature continue to add 2,000
to 3,000 new slots to the prison system each year?
If so, then growth that might appear modest in any
given year would lead to huge increases over time.
In Washington State, for instance, steady,
incremental changes to the sentencing laws over
many years have dramatically changed the
corrections system and made it less predictable
and much more difficult to manage.[11]

As of 1997, there appear to be no serious
difficulties with the North Carolina guidelines.
If the legislature changes sentences in the near
future, the impetus for change will probably not
come from a broad coalition of criminal justice
practitioners or the sentencing commission. 

It is worth noting that legislation passed during
1994 and 1995 will result in spending and growth
that match the sentencing commission's 1993
proposal to increase prison capacity to roughly
40,000 beds by 2004 rather than the "Standard
Operating Capacity" proposal originally adopted by
the legislature. Perhaps this is a consensus
position about the proper scale of imprisonment in
the State that will last for some time to come. 

Early Results: Some Success, Some Jail Crowding

The original 1993 legislation has produced some
encouraging results. The North Carolina Sentencing
and Policy Advisory Commission's data from late
1994 through June 1996 indicate that the most
serious felons are indeed receiving prison terms
in a greater percentage of cases and are serving
longer average prison terms. (See exhibits 4 and
5.) The data also show that in the great majority
of cases judges are adopting the ordinary
sentencing range rather than the aggravated or
mitigated ranges. Early reports indicate heavy use
of several intermediate sanction programs. These
preliminary results suggest that the sentencing
structure is effectively predicting the
correctional resources that the State will need 
and is directing serious felons and misdemeanants
to longer prison terms while sending less serious
felons to nonprison punishments. An independent
evaluation of the North Carolina law is currently
being conducted with support from the National
Institute of Justice. (See "Evaluating the Effects
of Structured Sentencing.")

But the transition to structured sentencing has
not gone exactly as the legislature and the
sentencing commission had predicted. A large
number of State prisoners who were sentenced under
the old Fair Sentencing Act remain in the State
system and are eligible for parole. The sentencing
commission's prison population projections assumed
that prisoners currently in the system would
continue to be paroled at a more or less constant
rate. Any new capacity, therefore, could be
devoted to prisoners sentenced under the new law.
However, the Parole Commission began releasing far
fewer inmates sentenced under the old law. The
legislature provided some extra prison space for
the "old law" prisoners by repealing the statutory
prison cap (which limited the total prison
population in the State) and allowing the
population to increase up to the levels mandated
by a Federal court decree. That extra space,
however, did not become available until January
1996. The Parole Commission started using extra
space (by slowing its rate of parole release)
earlier than it became available. 

The result has been too many prisoners for the
State prison system to handle. The extra prisoners
have, for the most part, ended up in county jails
and rented out-of-State prison cells.[12] As the
"old law" prisoners work their way through the
system, and as the prisons now under construction
become available for use, the problem should
recede. If prison populations are as projected,
the State should be able once again to take all
the new prison admissions from the jails. In the
meantime, jail administrators are left to wonder
if the State will really be able in the long run
to manage the prisons without constantly relying
on local jails for reserve space. 

Lessons for Other States 

North Carolina has embraced some fundamental
changes to its sentencing system that, all things
considered, constitute a success story for the
State. The funding and monitoring system now in
place should sustain the current sentencing policy
for a number of years.

Which of North Carolina's experiences might prove
useful for other States? Perhaps the most
important is the need for a sentencing commission
or other full-time body to estimate the impact of
changes, monitor and report on the effects of
sentencing practices, and coordinate correctional
resources. The commission must maintain
credibility as an information source and recognize
the legitimate policy role of the legislature. 

Legislators need to see cost estimates for every
proposed change to sentencing laws. The timing of
the cost estimates is also important. The
estimates must be made available to the
legislators early in their deliberations, before
political momentum can develop. When estimates
based on credible models are routinely attached to
sentencing bills (rather than whenever a
legislator takes the initiative to request one),
they ensure that legislators receive consistent,
credible information and prevent the bill's
sponsor from claiming that cost estimates are
merely a political weapon of the opposition. 

Other lessons from the North Carolina experience
relate to community corrections. The creators of
sentencing policy must build support for community
corrections as a critical part of sentencing, not
as an afterthought or "frill." The nonprison
sanctions built into any sentencing structure make
it possible to maximize the use of an affordable
prison system. Community corrections garner public
support only if there is a range of sanctions
available, from those emphasizing treatment and
training to those emphasizing stricter control of
offenders. 

If the State cannot provide enough program slots
of the right sort to meet the demands of the
sentencing system, structured sentencing cannot
last. It will not keep the support of prosecutors
and judges, who will find ways to impose sanctions
they believe are better matched to the offenders
they encounter. As in other States, prosecutors
and judges in North Carolina hold the power to
throw the system into imbalance through their
decisions. If structured sentencing is to last, it
must remain tolerable to those who spend the most
time operating the system. Thus, the design and
allocation of community corrections programs
should remain decentralized. 

No State will develop precisely along the lines
that North Carolina has followed. But every State
struggles with budget questions. The virtues of
long-range planning and the matching of tomorrow's
correctional resources to today's sentencing
choices will apply anywhere. And every State
struggles with questions of justice. A system that
imprisons offenders either more or less than is
necessary produces an injustice. Each State, like
North Carolina, should ask itself about the
justice of prison and nonprison sanctions,
regardless of budget imperatives. Whether it takes
place in a sentencing commission or elsewhere,
this debate should find a forum in every State. 

------------------------------

Notes 

1. A conclusive finding would require a rigorous
evaluation of sentencing impact. However, the
changes in North Carolina sentencing patterns
occurred soon after the guidelines went into
effect and were consistent with the changes the
commission intended to make. Hence, it is a
reasonable hypothesis that the guidelines caused
the changes.

2. Clarke, Stevens H., Felony Sentencing in North
Carolina, 1976-1986: Effects of Presumptive
Sentencing Legislation, Chapel Hill: University of
North Carolina Institute of Government, 1987;
Meyer, Louis B., "North Carolina's Fair Sentencing
Act: An Ineffective Scarecrow," Wake Forest Law
Review, 1993, 28:519. 

3. Wright, Ronald F., and Susan Ellis, "A Progress
Report on the North Carolina Sentencing and Policy
Advisory Commission," Wake Forest Law Review,
1993, 28:421.

4. See Martin, Susan, "Interests and Politics in
Sentencing Reform: The Development of Sentencing
Guidelines in Minnesota and Pennsylvania,"
Villanova Law Review, 1983, 29:21.

5. See Citizens Commission on Alternatives to
Incarceration, Report, 1982. 

6. N.C. Gen. Stat.  120-36.7(c).

7. See N.C. Gen. Stat.  14-7.12 (three-strikes
law).

8. N.C. Gen. Stat.  14-7.6. 

9. In the years just preceding the sentencing
guidelines, the number of habitual-felon
convictions increased but remained relatively
small by comparison to the total number of felony
convictions. North Carolina's courts complete more
than 20,000 felony convictions each year.
Prosecutors obtained convictions of 82 habitual
felons charged in 1991, 136 in 1992, 164 in 1993,
and 230 in 1994. That pattern of steadily
increasing but small numbers seems to be
continuing under the new law. Prosecutors obtained
convictions on habitual-felon charges in about 262
cases during 1995, the first full year for any
sentences to be imposed under the structured
sentencing plan. Perhaps the number of convictions
remains relatively low because prosecutors found
it cumbersome to obtain the documents necessary to
prove the prior convictions. North Carolina
Sentencing and Policy Advisory Commission, 1994
Felony Sentencing Practices in North Carolina;
North Carolina Sentencing and Policy Advisory
Commission, Final Report for Felons: January
through June 1995, 1996.

10. U.S. Department of Justice, Bureau of Justice
Statistics, 1994 Sourcebook of Criminal Justice
Statistics, 1995, table 6.20. The State's
incarceration rate for 1993 increased to 305 per
100,000 residents, but its ranking among States in
the region remained unchanged. 

11. Boerner, David, "The Role of the Legislature
in Guidelines Sentencing in 'the Other
Washington,'" Wake Forest Law Review, 1993,
28:381.

12. Neff, Joseph, "State Prisoners Burden County
Jails," Raleigh News & Observer, May 26, 1996, at
B1.

------------------------------

Highlights

This Program Focus discusses how the North
Carolina General Assembly and the State's
Sentencing and Policy Advisory Commission, working
together, were able to build on the experiences of
other States to design a sentencing structure that
increased the certainty and the length of
imprisonment for the most serious felonies while
creatively using community and intermediate
sanctions for lesser offenses to control increases
in corrections costs. 

By 1990, concerns about discrepancies between the
sentences then required by statute in North
Carolina and the length of sentences actually
being served, as well as about crowding in State
prisons and the drop in the incarceration rate
relative to other States, led to a decision to
institute structured sentencing guidelines. The
Sentencing and Policy Advisory Commission was
created to study new guidelines and to present
recommendations to the General Assembly. The
commission's recommendations, which called for
lengthier prison terms for the most serious
offenses and for an increase in the State's prison
population, had to be balanced against the
legislature's desire to limit any increase in
corrections costs to levels already funded. During
the 1993 legislative session, a consensus was
reached to enact structured sentencing guidelines
while taking steps to control corrections costs.
An important part of the decision involved
strengthening existing community corrections and
intermediate sanctions programs as less costly
alternatives to prison for less serious offenses
and for offenders without long criminal histories.

This legislative consensus supporting the
guidelines was maintained during the 1994 and 1995
legislative sessions, despite a change in the
party controlling the State House of
Representatives. The methods used to maintain this
consensus included:

o The sentencing commission's use of legislatively
mandated impact statements to inform legislators
of the prison construction costs associated with
amending sentencing statutes. These statements
have reduced significantly the increase in prison
population and costs that would have resulted from
amendments to the guidelines. 

o Training in using the guidelines for members of
the criminal justice community.

o Cooperation and collaboration by the sentencing
commission and criminal justice professionals.

o Integration of community corrections agencies'
budget requests into a single unified budget
proposal.

During the 1994 and 1995 sessions, the sentencing
guidelines were further refined by increasing
penalties for the most serious offenses, including
rape and statutory rape, and for offenses
involving the use of a gun; by amending the
existing habitual-felon statute to increase
penalties for violation and to convert it into a
three-strikes law; and by allowing judges to
impose prison terms for certain categories of
misdemeanor assault. 

The new sentencing guidelines have led to an
increase in the sentences imposed and served for
the most serious felonies while limiting the
projected increase in the prison population to
about 5,000 over the next 10 years. Unexpected
effects include a reduction in grants of parole to
prisoners sentenced under the previous guidelines
and the greater use of jails to handle increases
in the prison population. 

Many features of North Carolina's system could be
replicated in other States, especially the use of
cost impact statements to inform legislators of
the costs of amending sentences and the use of
community and intermediate sanctions as
cost-effective alternatives to prison for less
serious offenses by less experienced offenders.

------------------------------

Message From the Director

North Carolina's correctional system was strained
to the breaking point in 1990; today it appears to
have turned the corner. This Program Focus
describes how North Carolina's legislators created
a new, rational foundation for sentencing
decisions. Their fundamental shift to a structured
system imposed "truth in sentencing" policies that
sought to eliminate early release, channel career
criminals into longer prison stays, and divert
less serious offenders to less expensive
community-based sanctions. 

The path North Carolina took to overhaul its
sentencing policies was neither smooth nor
straight. Success came largely because leaders
with vision and determination worked hard to base
their decisions on empirical models and to
collaborate with and learn from one another and
from other jurisdictions. The result is a
noteworthy achievement that brought the State a
1997 award from the Ford Foundation and the John
F. Kennedy School of Government at Harvard
University for outstanding innovations in
government.

The conflicts North Carolina officials faced and
the tradeoffs they made--and continue to
make--typify situations other States face. We hope
readers can learn from North Carolina's
experiences described in this Program Focus.

Jeremy Travis 
Director 
National Institute of Justice

------------------------------

The Structured Sentencing Movement

Structured sentencing is best described by
contrasting it with traditional indeterminate
sentencing systems at work through most of the
century. In an indeterminate sentencing system,
the legislature specifies a broad range of
potential punishments for crimes. The judge
selects the type of punishment and the length of
the sentence. Administrators (for example, the
parole commission) gather information about
offenders' histories and their conduct in prison,
to decide whether to release them before their
maximum terms are completed. They might release
the offenders because they have achieved
rehabilitation or because they are less dangerous
to society than other offenders entering a crowded
prison system. 

Many jurisdictions have rejected the indeterminate
sentencing system because it leaves the public
uncertain about the length of sentences offenders
will actually serve. Indeterminate sentencing may
also result in differences in the sentences served
by similar offenders and make it difficult for the
legislature and others to anticipate the
correctional resources needed to carry out
sentences. 

States have developed two basic alternatives to
indeterminate sentencing. A few States--such as
Illinois in 1977 and California in 1978--adopted
legislatively mandated determinate sentencing.
Under this system the legislature specifies a
sentence, or a much narrower statutory range than
is customary, for the judge to impose on those who
commit a particular crime. The power of a parole
commission to release early is either abolished or
severely limited. Legislatively mandated
determinate sentencing replaces the individualized
sentences of the traditional system with more
uniform treatment of all those committing the same
crime.

Legislatively mandated determinate sentencing has
not proved to be a workable alternative to the
traditional indeterminate system. Because uniform
punishments assigned to each crime lead to unjust
results in many cases, prosecutors and judges find
ways to adjust the charges accordingly. 

Structured sentencing is the second alternative to
indeterminate sentencing. It is a compromise
between the individualized administrative
assessment of each offender under the traditional
system and the uniform treatment of all those
charged with an offense under legislatively
mandated determinate sentencing. Structured
sentencing creates a set of sentencing rules
(usually called "guidelines") that consider both
the offense committed and a few personal
characteristics of the offender (most important,
the prior criminal record). The general rules of a
structured sentencing system make sentences more
uniform and less subject to the individual
discretion of judges or parole boards. Yet the
structure allows a judge to impose different
sentences in special cases so long as the judge
explains how the case is special. Structured
sentencing makes it possible to plan the necessary
correctional resources, without waiting to react
after a crowding problem develops. 

Almost half the States--starting with Minnesota
and Pennsylvania in 1978, Washington in 1981, and
Florida in 1982--have created structured
sentencing systems over the past 15 to 20 years.
The Federal Government also moved to a structured
system in 1987. Because of the lengthy time
required to draft sentencing rules and to project
their impact on correctional resources, and
because sentencing rules must be adjusted over
time as crime rates or other factors change, most
States have given the job of proposing and
monitoring sentencing rules to permanent
commissions. 

North Carolina's structured sentencing system has
received an unusual amount of attention among the
"guideline" States for several reasons. First, it
is a State with a relatively large population and
a sizable prison system. Second, the State's
political atmosphere on questions of crime and
punishment is well within the national mainstream.
These two features suggest that North Carolina's
experiences may be transferable to other States of
similar size and political outlook. 

Third, North Carolina has been able to incorporate
and build on the practices of earlier guideline
States such as Pennsylvania and Washington. In
that sense, North Carolina embodies a consensus
among criminal justice and corrections officials
about the basic structure and direction of
sentencing guidelines. 

------------------------------

The Persuasive Power of Numbers 

During the special legislative session on crime in
1994, members of the General Assembly introduced
more than 400 bills relating to crime, most of
them creating new crimes or increasing punishments
for existing crimes. Especially popular were bills
relating to sexual assault, use of weapons, and
habitual felons (known as "three strikes and
you're out" laws). The story below of one
three-strikes bill illustrates the importance of
impact projections in the legislative process. 

During the 1994 session, a bill was introduced
calling for a life term in prison with no
possibility of parole for any person convicted of
a third serious felony. The bill defined "serious"
to include a long list of felonies, including
burglary and drug crimes. As with any other
proposed legislation having an impact on criminal
sentences, an impact projection was required for
this bill. 

Two State bodies combined their efforts to produce
the impact projections. First, the sentencing
commission estimated the number of additional
prison beds that the State would need to carry out
the longer sentences required under the bill. The
commission used an empirical model with proven
success in other States to generate the estimate.
It was based on statistics on the numbers of
felons in recent years who would qualify for such
a punishment, together with estimates of future
increases in convictions. These projections all
went into a single-page report showing the
additional prison beds that the bill would require
after 1 year, 2 years, and so on. The report
provided yearly projections out to the 10-year
mark and periodic projections beyond that out to
40 years. 

A second impact projection from the Fiscal
Research Office of the State legislature estimated
the cost of building and operating the new prison
facilities the bill would require.

With this impact projection in hand, the executive
director of the sentencing commission visited the
bill's sponsors in the legislature before the bill
received any attention in committee or on the
floor of the House. The report showed that the
bill would enlarge the prison system by more than
17,000 prison beds over its first 10 years (the
entire State prison system in 1994 held roughly
24,000 inmates). 

At first, sponsors had difficulty believing the
estimate. But after an explanation of the method
used to create the projection, and some
consultation with other legislators who had dealt
with the sentencing commission in the past, they
were convinced. They concluded that the bill was
too costly and ultimately supported a related
three-strikes bill that added no new prison beds
for the first 10 years and fewer than 2,000 beds
over 40 years. 

------------------------------

Evaluating the Effects of Structured Sentencing

To understand more precisely the impact of North
Carolina's sentencing reform, the National
Institute of Justice has awarded an evaluation
grant to the Research Triangle Institute. The
study has three major components:

o Quantitative analyses of prosecution, court, and
correctional data gathered by three North Carolina
agencies: the Administrative Office of the Courts,
the Sentencing and Policy Advisory Commission, and
the Department of Correction.

o Interviews with prosecutors, defense attorneys,
and court and correctional personnel who have
roles in the charging, adjudication, sentencing,
and correctional processes.

o Mail and telephone surveys of prosecution,
defense, court, and correctional personnel.

The quantitative analyses of the data from the
Administrative Office of the Courts will have a
case-level focus. Analyses will compare the
charging, plea negotiation, and adjudication
process for cases prior to and after the effective
date of North Carolina's structured sentencing
law. Analyses of data from the Department of
Correction will compare the work, program
participation, and institutional infraction
experience of individuals sentenced under the old
and new laws.

The interviews of State and local personnel will
gather largely qualitative information about the
effects that the new sentencing law has had on the
process of charging, negotiating, and resolving
cases and on the corrections process. The mail and
telephone survey will gather detailed assessment
information about the effects of the new law from
those who are administering it and working with
it. 

The findings are expected to have implications for
several aspects of the sentencing and correctional
areas, including sentencing legislation,
sentencing implementation guidelines, structures
to support sentencing reform, resource needs, and
correctional program development. The findings
will be especially useful for other States
considering changes to their sentencing laws. 

The findings of the study can inform the content
of legislation, the structures or resources needed
to support new laws or changes to existing laws,
and the manner in which new laws are implemented,
State correctional authorities will be able to
anticipate effects that changes in sentencing
practices might have on prison populations.

------------------------------

About This Study 

This document was written by Ronald F. Wright,
professor, Wake Forest Law School. To receive
further information about the North Carolina
Sentencing and Policy Advisory Commission, call
919-733-9543 or point your Web browser to
http://www.aoc.state.nc.us and click on
"commissions." The findings and conclusions of the
research reported here are those of the author and
do not necessarily reflect the official position
or policies of the U.S. Department of Justice.

------------------------------

On the cover: The North Carolina General Assembly
(House of Representatives is pictured) tackled
critical sentencing issues by creating a
Sentencing and Policy Advisory Commission and then
worked closely with the commission to make the
resulting guidelines both fair and cost conscious.

(Photo courtesy North Carolina General Assembly.)

------------------------------

The National Institute of Justice is a component
of the Office of Justice Programs, which also
includes the Bureau of Justice Assistance, the
Bureau of Justice Statistics, the Office of
Juvenile Justice and Delinquency Prevention, and
the Office for Victims of Crime.

------------------------------

NCJ 168944

February 1998