What is Parole? Calculating a Sentence

OJ Simpson will appear before the Nevada Parole Board, after nine years in a state prison for robbery-related crimes.  A high-profile parole hearing often brings a slew of questions about parole in criminal cases in North Carolina and the federal system.

The Definition of Parole

Parole in American criminal justice is the review by a parole board or commission of a sentence after some period has been served as defined in the criminal statutes.  A variety of factors are considered in by a parole hearing, including the nature of the offense, the prisoner’s conduct while incarceration, victim impact statements, and recommendations from law enforcement, mental health experts, and prosecutors.  The prisoner is afforded the opportunity to make statements in writing or in person before the parole board about why he should be released.

Parole is a shortening of the stated sentence.

Abolishing Parole

In the 1980s and early 1990s, many jurisdictions, including the federal system and North Carolina, abolished parole.  People convicted before those changes are still eligible for parole, but anyone convicted after 1994 in North Carolina or 1984 in the federal system is not eligible for parole.

The abolishment of parole was part of a nationwide effort to create more determinate sentencing – known as “truth in sentencing” – and a departure from indeterminate, judge-driven sentencing.  In the federal system the changes were accompanied by the advent of the United States Sentencing Guidelines.  In the state system, the changes saw the creation of a structured sentencing chart.

The end of parole, however, does not mean that, strictly speaking, a person’s sentence will serve a day-for-day sentence in the Bureau of Prisons or Division of Adult Corrections as specified by the judge.  A number of factors go into the actual length of the sentence, based on the person’s convictions.

Calculating a Prison Sentence

Calculating a prison sentence is complex business and depends upon a number of factors.  This information is not meant to substitute for a calculation in your case.  But below are some general things to consider.

Concurrent or Consecutive Sentences in North Carolina

Will a sentence run concurrently or consecutively to another sentence?  In some circumstances a person is convicted on day X of a series of crimes and sentenced in, say, Wake County.  Then, later, the same person may be sentenced in Durham County for a different set of crimes.

The Wake County judge may impose a consolidated sentence or a concurrent sentence, in which case the person will serve a single sentence for all of the convictions in that county.  The effective result is a sentence governed by the longest term of imprisonment, since the shorter terms will expire as the person is in prison.

The Durham County judge may impose a consolidated sentence or a concurrent sentence (although a Durham County judge cannot consolidate the Durham County convictions with the Wake County convictions).  The sentence can be run concurrent with the Wake County sentence.

By operation of law in North Carolina, a person will receive a concurrent sentence unless the judge says otherwise in his judgment.

Consecutive sentences – also called boxcar sentences – require that each sentence be served after another.

Shortening Sentences

Once the sentence is announced, in the state system the inmate enters the Division of Adult Corrections serving the maximum sentence.  Over time, assuming good behavior, that term can be reduced to the minimum announced sentence, and no shorter.  It’s important to note that the announced sentence might be 4 months to 15 months.  The high end of that sentence is 6 months, so the person goes into prison serving 6 months.  The remaining 9 months are considered post-release supervision and are spent out of prison, but on a type of probation.  In sex offense cases, the post-release supervision term is 60 months.

(A person may physically spend less time in prison than the 4 months, but still under control of the DAC, in half-way or re-entry type programs.)

Roughly 80 percent of all North Carolina prisoners reduce their sentences to the minimum through good behavior.

In the federal system, the announced sentence is in months.  The Bureau of Prisons will reduce the sentence, however, by 54 days each year, assuming good behavior.  A good rule of thumb is that a prisoner will serve 85 percent of the total sentence.  In addition, a sentence can be reduce further through participation in a drug and alcohol recovery program called RDAP.  The final six months are usually served in a residential re-entry program.

Credit for Time Served

By operation of law, a person must receive all credit in the state or federal system for days spent in custody awaiting trial.  A few small exceptions apply: for instance, in DWI cases, a person does not receive credit for the less-than-one day they spent in jail.

But generally a person will receive day-for-day credit.  Unfortunately, neither the DAC or the BOP awards a for person good behavior for time spent awaiting trial or disposition.

Concurrent State and Federal Sentences

Federal law is complicated when it comes to determining whether a federal sentence can be run concurrent with a state sentence.

Assuming a person has initially been convicted federally, a North Carolina judge may run the state sentence concurrent to the federal sentence.

However, in cases where a person is initially in the custody of the state, a federal judge can recommend, but not order, that most sentences run concurrently with the state sentence. The Bureau of Prisons will ultimately decide how the sentence is calculated, although the general policy by the BOP is to follow the wishes of the judge.

Certain convictions cannot run concurrently with state sentences.  For instance, a 924(c) – the possession or use of a firearm in furtherance of a crime of violence or serious drug offense – must run consecutively to all other sentences.  A federal judge may not, absent the filing of a 3553(e) by the prosecutor, depart below the mandatory minimum that requires consecutive sentences.

In a garden variety 924(c) involving the possession of a firearm, a person will receive – without a 3553(e) – a 60 month sentence consecutive to all other sentences.  This stacking provision means that that particular sentence will be served after previous state sentence has run its course, and after any other federal convictions run their course.

Other Relief

Other relief may be available in special and rare circumstances.  A federal Rule 35 motion by the Government can reduce a federal sentence below the stated sentence depending on the level of cooperation of the prisoner in the investigation or prosecution of other individuals.

In the state system, a defendant may rarely have a sentence reduced through a Motion for Appropriate Relief which can be filed and granted for any number of reasons.

Finally, a person’s sentence can be reduced for infirmity. These compassionate releases are rare and difficult.

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.