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Political Uproar Follows NC Court Ruling that Life Sentence is 80 Years

by David M. Reutter

A political brouhaha arose in October 2009 in the wake of a North Carolina appellate court decision which held that a “life sentence is as an 80-year sentence for all purposes.” While the ruling applies only to defendants convicted of crimes between 1974 and 1978, Governor Beverly Perdue assailed the decision and vowed not to release any prisoners who would benefit from the judicial opinion.

The uproar began after the North Carolina Supreme Court declined to review a ruling by the Court of Appeals in a case brought by state prisoner Bobby E. Bowden, who was convicted of two counts of first-degree murder in 1975.

Bowden’s original death sentence had been vacated and concurrent life sentences were imposed. Since becoming eligible for parole in 1987, he had received annual parole reviews. Recognizing that N.C. Gen. Stat. § 14-2 (1974) applied to him, Bowden filed a Petition for Issuance of a Writ of Habeas Corpus ad subjiciendum in December 2005.

Just six weeks after the filing, the trial court rejected Bowden’s argument that under state law a life sentence is to be considered 80 years, and that with the application of sentence reduction credits he was entitled to immediate release. He appealed.

In reversing the lower court, the Court of Appeals found the statute was not ambiguous and did not need to be read in conjunction with N.C. Gen. Stat. § 148-58 (1974), which requires all life-sentenced prisoners to be eligible for parole consideration after serving 20 years. The appellate court held the plain language of § 14-2 states “that life imprisonment shall be considered as a sentence of imprisonment for a term of 80 years in the State’s prison without any limitation or restriction.” See: North Carolina v. Bowden, 193 N.C.App. 597, 668 S.E.2d 107 (N.C. App. 2008), review denied.

“Bowden’s motion got people perked up,” said state appellate defender Staples Hughes, who represented him in the Court of Appeals. “It spread from there.” The North Carolina Supreme Court denied the state’s request for discretionary review on October 9, 2009, which sparked a wildfire of political rhetoric.

“Like most of my fellow North Carolinians, I believe life should mean life, and even if a life sentence is defined as 80 years, getting out after only 35 is simply unacceptable,” said Governor Perdue, who ordered prison officials to continue to hold prisoners who became eligible for release due to the Bowden decision. Up to 60 life-sentenced prisoners were affected by the ruling, and the Department of Correction was preparing to release them as early as October 29, 2009 until the governor intervened.

Defense attorneys said Perdue was overreaching. “This is a pure and simple attack on the rule of law,” stated attorney Joseph B. Cheshire V. “We are not a society that allows our government to retroactively undo agreements it has with its citizens.” Hughes agreed, saying, “It’s simply exploiting fear, pain, tragedy that grew out of these crimes, and it’s despicable.”

When it was revising sentencing laws in 1981, the North Carolina legislature barred the most violent offenders sentenced after that year from earning sentence reduction credits. The legislature, however, gave the secretary of the Department of Correction (DOC) authority to award credits to prisoners sentenced before 1981.

A 1983 DOC policy allowed prisoners to earn one day off their sentence for each day without an incident, plus credits for participating in work release and taking classes. “The statute is very clear,” said Cheshire. “Every lawyer, defense and prosecutor, as well as judges, knew these were the rules.”

Still, Governor Perdue continued to insist that legislators did not intend to give such authority to prison officials. “I do not believe they did, and my legal counsel agrees,” she stated. “This raises the very real question that these inmates should not be eligible for early release.”

The corporate media ran with the story, calling the prisoners subject to release under the appellate ruling “the worst of the worst – convicted murderers and rapists.” It was noted that twenty of the prisoners who would be eligible for release had amassed a collective total of 256 disciplinary infractions while incarcerated.

Meanwhile, the Bowden case was remanded for a hearing to determine what sentence reduction credits he was entitled to receive. “This entire controversy was caused by the Governor’s own department misunderstanding an appellate court decision, miscalculating sentence credits, and misinforming victims and the public. Now, she claims credit for protecting us from her own error. This is really appalling and inexplicable,” remarked Republican state Rep. Paul “Skip” Stam.

An association of trial lawyers condemned the political rhetoric over what was a clear legal decision that must be followed by state officials. “We respectfully call on our state leaders to respect the North Carolina and United States Constitution by following the jury instruction that our judges give to our jurors every day: apply the law as it is, not as you would like it to be,” stated a resolution by the Board of Governors for the North Carolina Advocates for Justice.

There may be a second round of political hand-wringing over the issue of life sentences being construed as 80-year sentences. On February 16, 2010, the North Carolina Supreme Court heard arguments in an appeal brought by life-sentenced prisoners Faye Brown and Alford Jones, whose habeas petitions were granted by the superior court in December 2009.

Both Brown and Jones had successfully argued in the lower court that because their life sentences were considered 80-year sentences, and with sentence reduction credits, they should be released from prison. Their attorney, Jane Allen, noted the law was clear. “We are a nation of laws, not arbitrariness, tyranny or whims,” she said. “No one – not the [Department of Correction], not the Attorney General – can simply choose to treat the law as if it’s nothing more than a series of items on the buffet line at the local Golden Corral [restaurant].”

The Attorney General’s office contended that the state had never intended to provide sentence reduction credits for life-sentenced prisoners. Although such prisoners had been receiving credits, the state argued they were only for security-level and parole eligibility purposes. “It’s curious that after all these years, suddenly in the wake of all the publicity about this, they decide the credit was improperly given,” said state appellate defender Staples Hughes.

Meanwhile at least four lifers, including Jones, have been approved for parole – which is separate from the sentence credit and Bowden ruling controversy. Four other North Carolina prisoners with life sentences, including Brown, are allowed to leave the prison for employment or religious services, which belies the argument that they are the “worst of the worst” and shouldn’t be released.

PLN will report the North Carolina Supreme Court’s decision in the Brown and Jones cases. See: Brown v. NC DOC, Supreme Court of North Carolina, Case No. 517PA09 and Jones v. Keller, Supreme Court of North Carolina, Case No. 518PA09.

Additional sources: MCT News Service, News Observer, Associated Press,,,

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Related legal case

North Carolina v. Bowden,

193 N.C.App. 597, 668 S.E.2d 107

Court of Appeals of North Carolina.
STATE of North Carolina
Bobby E. BOWDEN.

No. COA08-372.
Nov. 4, 2008.

**108 Appeal by defendant from order entered 27 August 2007 by Judge Gary L. Locklear in Cumberland County Superior Court. Heard in the Court of Appeals 25 September 2008.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant appellant.


*597 Defendant Bobby E. Bowden appeals from an order denying his motion for appropriate relief. For the reasons stated herein, we reverse and remand for further proceedings.

I. Background
On 20 December 1975, defendant Bobby E. Bowden was convicted of two counts of first-degree murder in Cumberland County Superior Court and later sentenced to death. On 5 October 1976, our Supreme Court vacated defendant's death sentences and remanded so that life sentences could be imposed. State v. Bowden, 290 N.C. 702, 717, 228 S.E.2d 414, 424 (1976). On 26 October 1975, defendant *598 was given two life sentences, which are presumed to run concurrently. See Jernigan v. State, 279 N.C. 556, 563, 184 S.E.2d 259, 265 (1971) (stating that sentences imposed in the same jurisdiction and to be served at the same place or prison are presumed to run concurrently). Defendant has been in the custody of the Department of Correction since 20 December 1975. Defendant became eligible for parole in 1987, and has since received annual parole reviews. On 12 December 2005, defendant filed a Petition for the Issuance of a Writ of Habeas Corpus ad Subjiciendum, arguing that after applying all of his sentence reduction credits, he had completed his 80-year sentence and, therefore, was entitled to immediate release. When defendant committed the offenses, N.C. Gen.Stat. § 14-2 (1974) provided that a life sentence should be considered as imprisonment for 80 years. Id. Defendant contended that he should have received good time and good conduct credit required by the 1981 Retroactive Provision of the Fair Sentencing Act, which would cut his sentence in half, reducing his 80-year sentence to 40 years. Defendant also asserted that he had accumulated 210 days of good conduct credit, 753 days of meritorious credit, and 1,537 days of gain time credit. On 25 January 2006, the trial court denied his petition.

Defendant appealed to our Court and we treated the matter as a motion for appropriate relief. We vacated the trial court's order and remanded the matter, ordering the trial court to conduct ?an evidentiary hearing pursuant to N.C. Gen.Stat. § 15A-1420? to resolve issues of fact raised in defendant's petition.

The trial court conducted an evidentiary hearing on 27 August 2007, during which defendant provided detailed records from the Department of Correction regarding his sentence reduction credits. Initially, the Department of Correction's records indicated that all of defendant's good conduct time, merit time, and gain time credits had been applied to his sentence. However, for reasons unclear to this Court, the Department of Correction later retroactively changed the status of defendant's sentence reduction credits from ?applied? to ?pending.?

The trial court issued an order on 27 August 2007, denying defendant's claim for relief. In its order, it concluded that N.C. Gen.Stat. § 14-2 (1974) only requires the Department of Correction to treat defendant's life sentence as a term of 80 years for purposes of parole eligibility. From this order, defendant appeals.

*599 II. Issues
[1] Headnote Citing References This Court reviews a trial court's conclusions of law on a motion for appropriate **109 relief de novo. State v. Wilkins, 131 N.C.App. 220, 223, 506 S.E.2d 274, 276 (1998) (citation omitted). Defendant contends that the trial court erred by denying his motion for appropriate relief. Specifically, defendant argues that N.C. Gen.Stat. § 14-2 (1974) grants him a statutory right to have his life sentence treated as an 80-year sentence for all purposes, including the determination of his unconditional release date. We agree and reverse and remand.

III. Discussion
At the time defendant committed the offenses, N.C. Gen.Stat. § 14-2 provided the following:

Every person who shall be convicted of any felony for which no specific punishment is prescribed by statute shall be punished by fine, by imprisonment for a term not exceeding 10 years, or by both, in the discretion of the court. A sentence of life imprisonment shall be considered as a sentence of imprisonment for a term of 80 years in the State's prison.

N.C. Gen.Stat. § 14-2 (1974) (emphasis added). The State argues that N.C. Gen.Stat. § 14-2 (1974) does not govern the length of defendant's sentence in prison, but applies only when determining his eligibility for parole. Defendant asserts that the statute requires his life sentence to be considered as a sentence of 80 years for all purposes, and therefore, the Retroactive Provision of the Fair Sentencing Act reduces his sentence to 40 years.FN1

FN1. The applicable portion of this statute defining a life sentence as a term of 80 years became effective in 1974 and was repealed in 1977 and is only applicable for offenses committed between 8 April 1974 and 30 June 1978. N.C. Gen.Stat. § 15A-2002 (2007) currently provides that ?a sentence of life imprisonment means a sentence of life without parole.?

The State asserts that the statute is ambiguous. It argues that a life sentence cannot be defined in terms of years because when a person is sentenced to life, he or she is imprisoned for the term of his natural life. Furthermore, the State contends that N.C. Gen.Stat. § 14-2 should not be read alone, but must be interpreted in conjunction with N.C. Gen.Stat. § 148-58 (1974), which provides as follows:

All prisoners shall be eligible to have their cases considered for parole when they have served a fourth of their sentence, if their *600 sentence is determinate, and a fourth of their minimum sentence, if their sentence is indeterminate; provided, that any prisoner serving sentence for life shall be eligible for such consideration when he has served 20 years of his sentence. Nothing in this section shall be construed as making mandatory the release of any prisoner on parole, but shall be construed as only guaranteeing to every prisoner a review and consideration of his case upon its merits.

Id. (emphasis added). Defendant claims that since there was no way to calculate a fourth of a life sentence, N.C. Gen.Stat. § 14-2 (1974) defined life as a term of 80 years so that prisoners with life sentences would be eligible for parole after 20 years.

[2] Headnote Citing References Defendant asks our Court to take judicial notice of a statement contained in the State's brief in State v. Richardson, 295 N.C. 309, 245 S.E.2d 754 (1978), and we grant defendant's request. An appellate court may take judicial notice of the public records of other courts within the state judicial system. Whitmire v. Cooper, 153 N.C.App. 730, 735 n. 4, 570 S.E.2d 908, 911 n. 4 (2002), disc. review denied, appeal dismissed, 356 N.C. 696, 579 S.E.2d 104 (2003). Accordingly, we take judicial notice of the following sentence: ?The State agrees with the defendant that credit is now provided to those serving a life sentence since N.C.G.S. § 14-2 makes a life sentence equivalent to 80 years.? Here, the State concedes to what defendant is currently arguing. Our judicial notice of this sentence is dispositive to the issue of whether defendant's life sentence is equivalent to 80 years for purposes other than parole eligibility.

[3] Headnote Citing References Even without our judicial notice of the statement above, we still hold that N.C. Gen.Stat. § 14-2 (1974) treats defendant's life sentence as an 80-year sentence for all purposes. Our Supreme Court has previously considered a life sentence to be equivalent to 80 years, pursuant to **110 N.C. Gen.Stat. § 14-2 (1974), for purposes other than parole eligibility. See State v. Williams, 295 N.C. 655, 679, 249 S.E.2d 709, 725 (1978); see also Richardson, 295 N.C. at 318-19, 245 S.E.2d at 760-61. In Richardson, our Supreme Court considered the defendant's life sentence to be the equivalent of 80 years for purposes of determining his pretrial incarceration credit. Id. In Williams, our Supreme Court decided that each of the defendant's life sentences was equal to 80 years for purposes of adding his consecutive sentences and determining his total sentence of 300 years. Williams, 295 N.C. at 679-80, 249 S.E.2d at 725.

*601 We do not read this statute to be ambiguous nor do we find that it must be read in conjunction with N.C. Gen.Stat. § 148-58 (1974). The plain language of the statute states that life imprisonment shall be considered as a sentence of imprisonment for a term of 80 years in the State's prison without any limitation or restriction. We are not permitted to interpolate or superimpose provisions or limitations which are not contained in the text of the statute. Sonopress, Inc. v. Town of Weaverville, 139 N.C.App. 378, 383, 533 S.E.2d 537, 539 (2000). Had our Legislature intended that N.C. Gen.Stat. § 14-2 (1974) only apply when determining a prisoner's parole eligibility, it would have been a simple matter to have included that explicit phrase. See In re Appeal of Bass Income Fund, 115 N.C.App. 703, 706, 446 S.E.2d 594, 596 (1994).

Contrary to the State's assertion, N.C. Gen.Stat. § 14-2 (1974) does not give the Department of Correction authority to commute all life sentences to 80 years. Instead, the Legislature merely defines the term of life imprisonment, which it has the authority to do. Our Legislature is granted the power and the authority to define crimes and set punishment for those crimes. Jernigan, 279 N.C. at 564, 184 S.E.2d at 265 (stating that the Legislature has exclusive power to determine the State's penological system and prescribe punishments for crime). In light of our decision to remand, it is unnecessary to address the remaining issues briefed on appeal.

IV. Conclusion
We hold that N.C. Gen.Stat. § 14-2 (1974) requires that defendant's life sentence is considered as an 80-year sentence for all purposes. We reverse the trial court's order and remand for a hearing to determine how many sentence reduction credits defendant is eligible to receive and how those credits are to be applied.

Reversed and Remanded.

Judges TYSON and CALABRIA concur.