North Carolina Structured Sentencing is No Longer Structured

Until the mid-1990s, North Carolina had a sentencing system called Fair Sentencing. The major criticisms of Fair Sentencing were that:

  1. There was no truth in sentencing. The actual sentence served was usually much lower than the stated sentence at sentencing.
  2. There was disparity in how people were treated from place to place, and defendant to defendant.
  3. The system was uneven and difficult for lay people to understand and interpret.

After years of study, in the mid-1990s North Carolina introduced Structured Sentencing with six prior record levels, and 10 sentencing classes (A to I), with each crime being assigned a sentencing level based on the seriousness of the crime.

The idea of structured sentencing was to end parole and to introduce truth in sentencing.

Misdemeanors were categorized by four levels – A1 to 3 – and three prior record levels.

Almost from the start, however, there were deviations from the Structured Sentencing system. For instance, DWIs have always been governed by the prior Fair Sentencing system, in part because the legislature wanted to punish DWIs more harshly than the newly established Structured Sentencing scheme would allow if DWIs were made a misdemeanor within Structured Sentencing.

Next, the legislature decided that drug trafficking was too serious a crime to be left to structured sentencing. So, while drug trafficking nominally carries with it a Class, each level of drug trafficking has specific mandatory minimums and drug trafficking sentences are not determined by looking at the offender’s prior record level.

Next, the legislature decided that certain sex offenses were too serious to be left to structured sentencing. So, while forcible rape is nominally a B1 felony, it carries with it a mandatory minimum sentence of 25 years, taking it out of Structured Sentencing. That 25 years is set regardless of a person’s prior record level.

These little tweaks here and there have meant that, over time, North Carolina’s Structured Sentencing system has looked more like a hodgepodge. Truth in sentencing has become something less than entirely truthful.

The Justice Reinvestment Act passed in 2011 and now fully in effect in North Carolina as of January 1, 2012 blows a hole in the Structured Sentencing scheme by creating an entirely new program that looks a lot like parole, even though it’s technically called Advanced Supervised Release.

As if the legislature doesn’t entirely trust judges, it requires that the prosecutor not object to putting the defendant into the DOC’s ASR program. If the person is admitted into the program at the time of sentencing, then he is eligible release on his Advanced Supervised Release date which is either the minimum sentence at the bottom of the mitigated range for the same Class and Prior Record Level, or is 80 percent of his minimum sentence if he’s sentenced in the mitigated range.

Eligible defendants must fit into certain Class and Prior Record Levels in order to qualify for the ASR program. And only the sentencing judge can place the person into the ASR program if the prosecutor doesn’t object.

The program is a good move in the right direction, because it incentivizes defendants to take advantage of programs in the DOC to earn ASR release, and then supervises them for a period of time after release.

And it credits worthy offenders, getting them out of prisons earlier, and lessening the financial burden to the State.

But it represents essentially a return to parole, which in my view is a good thing, but which runs counter to the whole concept behind Structured Sentencing.

Rationalizing sentencing only goes so far. Leniency must be built into the system to incentivize offenders. Overall NC’s criminal sanctions are overly punitive. Moving toward a less structured, but more humane criminal justice sytem is the way to go.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.