The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume VII, Issue 2, June 2007

ACCESS

ESTABLISHING EXCESSIVE FORCE
IN CIVIL RIGHTS LITIGATION

By: Senior Staff Attorney Michele Luecking-Sunman AND SHARON G. ROBERTSON, ACP

A common request for assistance
that NCPLS reviews involves a
claim of an excessive use of force
against a prisoner.
Let’s examine the
following incident
to see if it would
meet the standards
required to win
a federal lawsuit
based on a claim
of excessive use of
force.
John Doe has been
held for the past
year and a half at
the Anywhere Jail
waiting to go to trial. At first, Doe
and Officer Rambo began joking
with each other. Then Officer
Rambo made a joking comment
about an envelope Doe received
from his wife. Doe did not appreciate Officer Rambo’s comment
and complained to shift supervisor Sgt. Right who made Officer
Rambo apologize to Doe. Following the apology, Officer Rambo
began writing Doe up for small or
imagined infractions, causing Doe
to accumulate several disciplinary infractions. On Nov. 13, Doe
was playing cards with three other
inmates when Officer Rambo came
by and told only Doe to go back
to his cell. Doe stood up, started
walking towards Officer Rambo

and asked in a rather loud voice
why Officer Rambo was picking
on him. Officer Rambo and Doe

began name calling (with some
four letter words) as Doe walked
past Officer Rambo and toward his
cell. Just before reaching his cell,
Doe says Officer Rambo shoved
him face first into the wall and
began hitting him in the ribs. Officer Rambo says Doe gave him a
shoulder as he walked by and Officer Rambo just defended himself
by pushing Doe. Sgt. Right, who
was just entering the cellblock,
heard the commotion and came to
Officer Rambo’s aid. The officers
took Doe to the ground where he
was handcuffed behind his back
and removed from the cellblock to
a holding cell. While riding in the
elevator to the holding cell, Doe
says Officer Rambo continued to
hit him in his back and rib area

while Sgt. Right and Officer Doolittle watched. The whole incident
in the elevator was captured on
video surveillance.
Doe was taken to
the medical unit
so the nurse could
examine his bleeding nose, cut lip,
sore ribs, sore back,
and swollen right
wrist. The nurse
found some bruises
around his ribs,
treated his cut lip,
and gave Doe two
Tylenol tablets for
pain. Doe’s medical records show that he received
(Continued on Page 3)

In this Issue:
Establishing Excessive Force in
Civil Rights Litigation

1

Five Volunteers Strengthen NCPLS
Board

4

NC Prisoners Unreasonably Denied
Access to Publications

5

Program Audit of NCPLS Complete

6

Am I Entitled to More Jail Credit?

8

Meeting the Challenges of Re-Entry

10

North Carolina Sentencing and
Policy Advisory Commission Update 11
The ADA & How it Relates to
Prisoners

13

NCPLS ACCESS

Page 2
ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board of
Directors who are designated by various
organizations and institutions, including
the North Carolina Bar Association, the
North Carolina Association of Black
Lawyers, the North Carolina Association of Women Attorneys, and law
school deans at UNC, Duke, NCCU,
Wake Forest and Campbell.
NCPLS serves a population of more
than 38,600 prisoners and 14,000 pretrial
detainees (with about 250,000 annual
admissions), providing information
and advice concerning legal rights and
responsibilities, discouraging frivolous
litigation, working toward administrative
resolutions of legitimate problems, and
providing representation in all State and
federal courts to ensure humane conditions of confinement and to challenge
illegal convictions and sentences.
Board of Directors
President Fred Williams, Esq.
Vice-President Susan Olive, Esq.
Past President Gary Presnell, Esq.
Jim Blackburn
Prof. J. Bryan Boyd
Prof. Johnny Criscoe
James A. Crouch, Esq.
Dean Ronald Steven Douglas
Arnita M. Dula, Esq.
Paul Meggett, Esq.
Barry Nakell, Esq.
Dean Theresa A. Newman
Prof. Ronald F. Wright
Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA
Please Note: ACCESS is published
four (4) times a year.
Articles, ideas and suggestions are
welcome: tsanders@ncpls.org

Volume VII, Issue 2, June 2007

ESTABLISHING EXCESSIVE FORCE
(CONTINUED)

(Continued from Page 1)

follow-up treatment for his nose
and cut lip. A few days later, Doe
was examined by the jail doctor
who told him his nose and wrist
were not broken, and he did not
need any x-rays. Doe stopped
signing up for sick call right after
seeing the jail doctor because he
didn’t like being charged $10 just
to see the nurse or doctor, and
wanted to spend the little money he
had for canteen items. Doe says
he is still experiencing lower back
pain and has problems with his
wrist six months after the incident.
The Legal Standard
The Due Process Clause of the
Fourteenth Amendment to the U.S.
Constitution protects pretrial
detainees from excessive force
while in jail. United States v.
Cobb, 905 F.2d 784 (4th Cir.
1990), cert denied, 498 U.S. 1049
(1991). (The Eighth Amendment
applies to convicted prisoners, but
for all practical purposes, the legal
standard is the same. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)
(rights of pretrial detainees under
14th Amnd. are at least as great as
those of convicted prisoners under
8th Amnd.) The Fourteenth
Amendment basically states that
pre-trial detainees may not be
punished in any way without due
process. Any use of force against a
pre-trial detainee that was punitive
in nature, would therefore violate
the Constitution. Of course, law
enforcement officers have the right
to use force in most circumstances,
as long as that force is not used
solely as a form of punishment or

to compel some illegal and dangerous act. Jackson v. Allen, 376 F.
Supp. 1393, 1395 (E.D. Ark. 1974).
A four-part test has been developed
to determine whether an incident
involving the use of force was
lawful. Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir.), cert denied,
414 U.S. 1033 (1973). The court
will consider the following factors:
1) the need for application of
force;
2) the amount of force used;
3) the extent of injury inflicted;
and
4) whether the force used was
applied in good faith to maintain or restore discipline, or
maliciously and sadistically for
the very purpose of causing
harm.
Accord, King v. Blankenship,
636 F.2d 70, 73 (4th Cir. 1980);
see also, for example, Whitley v.
Albers, 475 U.S. 312 (1986).
It is difficult to prove the factors
listed above, but there is another
obstacle to overcome in an excessive use of force lawsuit. The
plaintiff must have suffered a serious injury as a result of the illegal
conduct. See the Prison Litigation
Reform Act at 42 U.S.C. §1997e
(“No Federal civil action may be
brought by a prisoner confined in
a jail, prison, or other correctional
facility, for mental or emotional
injury suffered while in custody
without a prior showing of physi(Continued on Page 2)

NCPLS ACCESS

Volume VII, Issue 2, June 2007

Page 3

ESTABLISHING EXCESSIVE FORCE
(CONTINUED)

(Continued from Page 2)

cal injury”). “The Eighth Amendment’s prohibition of ‘cruel and
unusual’ punishment necessarily
excludes from constitutional recognition de minimis uses of physical
force . . ..” Estelle v. Gamble, 429
U.S. 97 at 106 (1976).
Does Doe Have Grounds for
a Successful Lawsuit?
Have you made a
decision on whether
our John Doe has a
chance of winning
a lawsuit alleging
the use of excessive
force? Let’s look
again at our facts
based in light of
the legal standard
outlined above.
As you can see, the
test to determine
whether force was
used illegally poses a difficult
burden of proof. It is always hard
to convince a jury that officers
acted maliciously and with the
specific intent to cause harm. In
such cases, law enforcement officials often testify that the inmate
provoked the use of force by unruly
or assaultive conduct and that the
officer was simply using the force
necessary to control the situation
or enforce a lawful order. Officers
often swear (and believe) that the
inmate was accidentally injured
during the fray, or that the inmate
injured himself. Juries are all too
willing to accept these accounts,
despite an inmate’s testimony to
the contrary. In our case, Officer

Rambo will likely say that Doe
was willfully disobeying a direct
order to return to his cell; that Doe
assaulted him by striking him on
his shoulder; and that Rambo was
defending himself when he pushed
Doe into the wall. Sgt. Right may
well corroborate Officer Rambo’s
version of the incident. In the
absence of strong, supportive testimony from others who witnessed

the event, it is unlikely that Doe
will prevail.
But remember, a second incident
occurred in the elevator when Doe,
who was in restraints, was struck
repeatedly in the ribs by Officer
Rambo. If the video tape confirms
Doe’s account of the events, it
would seem that Officer Rambo’s
actions were malicious and sadistic, intended to cause harm.
All right, perhaps Doe can satisfy
the legal standard as to whether
excessive or unnecessary force
was used. Now let’s look at the
nature of Doe’s injuries to answer
the question of whether they were

constitutionally significant (and not
de minimis). The medical records
show that Doe suffered a cut lip
that required no stitches, a bloody
nose (not broken), a swollen wrist
(not broken), bruising around the
ribs (but again, no fractured ribs),
and a sore back. Doe continues
to complain about back pain and
pain in his wrist; however, we
have no documentation (through
medical records)
to prove these
claims because Doe
became discouraged and did not
request follow-up
medical care.
As stated above, a
showing of “significant injury” is necessary to establish
a valid claim and to
convince a jury that
Doe should recover
a significant amount of money in
compensation for the wrong he
suffered. Juries are often reluctant
to force an officer to pay money
to an inmate. A verdict for Doe
will depend upon strong evidence
that Officer Rambo acted illegally
and that, as a result, Doe suffered
a serious injury, such as broken
bones, cuts that required stitches,
or the infliction of unjustifiable
and severe pain. In such a case,
the medical records that document
plaintiff’s injuries are very important evidence.

(Continued on Page 15)

NCPLS ACCESS

Page 4

Volume VII, Issue 2, June 2007

FIVE VOLUNTEERS STRENGTHEN NCPLS BOARD
During the last three months,
NCPLS has had the good fortune to
recruit five distinguished lawyers to
help provide guidance and leadership on its Board of Directors.
J. Bryan Boyd and Johnny Criscoe
are professors of law at the Norman
Adrian Wiggins School of Law,
Campbell University. Mr. Criscoe
has served as faculty supervisor for
two student programs that provide
assistance to prisoners. Professor
Boyd teaches legal research, legal
and judicial writing, and appellate
advocacy.

~1

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II-

,

Arnita M. Dula

From the University of North Carolina Hospitals hails Associate General Counsel Paul Meggett. Having
clerked for former Chief Justice
Burley Mitchell, Mr. Meggett is
active in the NC Bar Association
where he served as Co-Chair of the
Minorities in the Profession Committee, as well as the Chair of the
Momentum 2010 Joint Diversity
Task Force.

-

~
~
~

J. Bryan Boyd

Paul Meggett

Johnny Criscoe

Attorney Arnita M. Dula serves as
a staff attorney for the city of Hickory, NC. Ms. Dula was selected for
that position because of her demonstrated leadership in education and
her legal experience, both of which
will enhance her contributions on
the Board.

Theresa A. Newman is the Associate Dean for Academic Affairs at
Duke University School of Law.
Dean Newman teaches Wrongful
Convictions, a course that explores
the causes of wrongful convictions
and leads students in investigations of North Carolina prisoners’
claims of actual innocence. She
also serves as the President of the
North Carolina Center on Actual
Innocence (a non-profit organization dedicated to investigating
prisoners’ claims of innocence),

and is a member of the North Carolina Chief Justice’s Commission on
Actual Innocence, which is studying the causes of wrongful convictions and making recommendations
to prevent them. At the Law
School, Dean Newman serves as
faculty adviser to the Law School’s
student-led Innocence Project.

Theresa A. Newman

Each of these distinguished individuals will bring education,
experience, and expertise to the
NCPLS Board of Directors which
will continue to infuse the organization with energy and enthusiasm
as they set policy and provide
guidance for the organization. We
are grateful for their involvement,
just as we appreciate the leadership
and long service of President Fred
Williams, Vice-President Susan
O. Olive, Dean Ronald Steven
Douglas, Treasurer, Immediate Past
President Gary Presnell, Attorney
James Crouch, Barry Nakell, Esq.,
Professor Ronald F. Wright, and
Jim Blackburn. NCPLS depends
upon this group of hard-working
volunteers for the leadership they
provide.

Volume VII, Issue 2, June 2007

NCPLS ACCESS

Page 5

NC PRISONERS UNREASONABLY DENIED
ACCESS
TO PUBLICATIONS
By: NCPLS Staff Attorney Dawn Ducoste
Imprisonment strips inmates of
most basic liberties. Along with
physical constraints, prisoners have
a limited right to make their own
medical care decisions, no right
to choose where they are housed
or how they are classified, and no
right to vote, to name just a few
restrictions. The Supreme Court,
however, has held that prisoners
do not surrender all constitutional
rights at the prison gate. See, e.g.,
Wolf v. McDonnell, 418 U.S. 539
(1974). Under the 1st Amendment,
one of the protections prisoners
retain is the right to receive reading
materials directly from publishers,
subject to censorship by prison officials only if the publication poses
a threat to prison security, order, or
inmate rehabilitation. Thornburgh
v. Abbott, 490 U.S. 401(1989).
Prisoners are also entitled to a
“minimal level” of due process
when this fundamental right is
withheld. Procunier v. Martinez,
416 U.S. 396 (1974), overruled on
other grounds by Thornburg, id. at
413.
The N.C. Division of Prisons
Policy & Procedures Manual,
Chapter D.0100 and following
sections describe the process and
criteria for censoring incoming

publications. In summary, when a
publication arrives at a facility, it
is screened to determine whether
it is deemed to pose a security
threat. If that initial determination
is made, the inmate is to be notified
and given the option to forward the
publication, have the publication
destroyed, or appeal the decision to
the DOC Publication Review Committee (PRC). If the PRC determines that the publication poses a
threat, the inmate is to be notified,
and that specific publication is then
listed on a “Master List of Disapproved Publications,” which is to
be available for all inmates’ review.
On their face, these rules appear
to clearly define an established
procedure which comports with
the law. However, in practice,
the policies are often arbitrarily
and inconsistently applied. Many
prisoners have written NCPLS
complaining that their publications
have been denied without notice,
without explanation, and without
an opportunity to appeal. Reported
problems also include inconsistent
publication rejections, magazines
being rejected on wholesale basis,
and after rejection, magazines not
being forwarded as requested.
Prisoners have been denied seem-

ingly innocuous publications such
as religious periodicals, music
magazines, books by and about
Malcolm X, books with gay and
lesbian themes, Sports Illustrated,
and even Oprah Winfrey’s “O
Magazine.” NCPLS has spent the
last two years negotiating with the
DOC to improve the inconsistently
applied procedures and the lengthy
delays of the PRC without success.
A pro se lawsuit was filed this year
against the DOC, and NCPLS has
agreed to undertake representation.
We are considering whether to seek
the certification of a class so that
any ruling would generally apply
to all North Carolina prisoners,
enforcing their right to receive publications without unreasonable or
arbitrary constraints. With so few
privileges, the right of prisoners
to expose themselves to ideas and
information from the outside world
is of particular importance. When
such ideas or information pose no
threat to prison security, there is no
legal reason to withhold such literature. Ffundamental rights afforded
constitutional protection must be
accorded deference and respect.
The name of the case is Urbaniak
v. Beck, et al., (5:06-CT-3135-FL)
(EDNC 2007).

NCPLS ACCESS

Page 6

Volume VII, Issue 2, June 2007

PROGRAM AUDIT OF NCPLS COMPLETE
As many readers of ACCESS will
remember, the N.C. General
Assembly transferred contract
responsibility for North Carolina
Prisoner Legal Services (NCPLS)
from the N.C. Department of Correction (DOC) to the Office of
Indigent Defense Services (IDS) in
2005. The General Assembly also
asked IDS to evaluate NCPLS and
to report its findings to the Legislature (S.L. 2005-276, §14.9(b)).
IDS contracted with the University
of North Carolina’s School of Government to conduct the evaluation.
The evaluation report was published and submitted to the General
Assembly on May 1, 2007.
The evaluation had three main
objectives:
1. To understand and document
NCPLS’s case-management process;
2. To determine the extent to
which NCPLS is providing appropriate, quality responses to inmates
in light of the requirements of the
contract, the standards prescribed
by the Rules of Professional Conduct, NCPLS’s case acceptance
priorities, and peer reviewers’
views of the needs and interests of
the prison population; and
3. To review select cases that IDS
had received written complaints
from NCPLS clients with respect
to the appropriateness and quality
of NCPLS’s response in light of the
requirements of the contract, standards prescribed by the Rules of
Professional Conduct, and auditors’
views of the needs and interests of
the prison population.

The evaluation had three major
parts. First, each major step in
NCPLS’s case management process
was documented. Second, NCPLS
cases from each major practice area
were selected for review by 16 different attorney auditors — lawyer
volunteers with at least some legal
background in the particular area of
law to be reviewed.
The case sample included 110 randomly selected case files (50 intake
files, 30 post-conviction files, 20
jail credit files, and 10 civil files),
20 semi-random litigation files (10
post-conviction and 10 civil litigation files), and 19 files specifically
identified by IDS. With the exception of the jail credit files, the file
for each selected case was examined by three separate auditors.
Finally, to provide context for the
evaluation, members of NCPLS’s
leadership team (the executive
director, administrative officer,
team leaders, and the executive
assistant were interviewed).
Based on a 5-point scale, NCPLS
achieved an overall ranking of
4.19.
NCPLS is grateful to the Office of
Indigent Defense Services and the
UNC School of Government for
conducting a comprehensive evaluation of program operations and
services. In a planning process that
extended over at least three months
and an audit that extended over an
18-month period, that evaluation
was comprehensive.
NCPLS is also grateful to the fine,
public-spirited attorneys who

served as evaluators, devoting three
full business days to participate in
the audit of NCPLS. That service
was a realization of the highest
aspirations of the legal profession,
providing pro bono public service.
Many of the auditors possessed
specialized knowledge and were
familiar with the law governing the
rights of prisoners, the rules and
regulations of the DOC, and the
challenges posed by prisoner litigation. It would have been difficult
or impossible to have assembled
a more qualified, competent team
from members of the North Carolina Bar. NCPLS is deeply grateful
for their service.
As is always the case, many of the
factors that were part of this evaluation are not controlled by NCPLS.
For instance, NCPLS has no control over the growth of the prison
population or the number of prisoner requests for legal assistance
that are received on any given day,
or over the course of time. Further,
program resources are almost
entirely derived from the “Bounds”
contract, which has historically
provided compensation for attorney
and paralegal hours, but no funding
for support staff such as a financial
officer, a bookkeeper or investigators.
Regarding post-conviction work,
NCPLS depends upon the offices
of clerks of court around the state
to provide the documents necessary
to assess possible grounds to collaterally challenge the convictions
and/or sentences of our clients.
(It is not possible for NCPLS to
(Continued on Page 7)

Volume VII, Issue 2, June 2007

NCPLS ACCESS

Page 7

PROGRAM AUDIT OF NCPLS COMPLETE
(Continued from Page 6)

routinely travel the 100 counties of
the state to copy these materials,
and clerks of court are often shortstaffed and overburdened. Thus,
responses to our document requests
are often delayed, sometimes for
months.)
As many of our readers know, the
law governing the rights of prisoners provides little protection and
imposes a morass of administrative
and procedural complexities, as
well as heightened legal standards.
For example, prisoners
must exhaust all available administrative
remedies before they
may institute federal
litigation. Porter v.
Nussle, 534 U.S. 516
(26 Feb. 2002). Failure
to comply any prison
procedural rule bars
federal action. Woodford v. Ngo, 126 S.Ct.
2378, 165 L.Ed.2d 368,
74 USLW 4404 (2006).
Prison officials may
freely impinge upon the constitutional rights of prisoners when
there is a “legitimate penological”
reason for doing so. Turner v.
Safley, 482 U.S. 78 (1987). And
other laws impose broad constraints on a prisoner’s hope for
relief through the courts. See, for
example, the Antiterrorism and
Effective Death Penalty Act, Pub.
L. 104-132, 110 Stat. 1214 (1996)
(AEDPA); 28 U.S.C. §1244(d)(1)
(one-year statute of limitation for
filing a petition for writ of habeas
corpus in federal court); the Prison
Litigation Reform Act of 1995

(CONTINUED)

(PLRA), 110 Stat. 1321-73, as
amended, 42 U.S.C. §1997e(a)
(1994 ed., Supp. V) (precluding suit where there has been no
physical injury, requiring exhaustion of all available administrative
remedies, and requiring an indigent prisoner proceeding in forma
pauperis to pay the full costs of the
litigation, unlike any other class
of indigent litigants). All of this
raises special challenges in prisoner
litigation.

The peer review of NCPLS case
files constitutes an objective assessment of the quality of our work.
The review of hundreds of files
across a number of substantive
areas of law during a three-day
period resulted in an overall average rating by the Audit Team that
exceeded 4 points on a 5-point
scale. The Audit Team thus concluded that NCPLS functions at a
high level. This ranking demonstrates the commitment of our staff
to fulfill the program’s mission, to
provide high quality legal services
to prisoners, and thereby to satisfy
the state’s constitutional obligation

to provide prisoners meaningful
access to the courts.
NCPLS provided information,
advice, and administrative advocacy in 2005 in some 13,000
requests for assistance. NCPLS
has been able to obtain relief for
many of our clients administratively or through means other than
litigation. For example, in the
seven months prior to the report,
our advocates obtained jail credit
totaling 20,477 days (more than
57 years of freedom) for North
Carolina inmates.
The $1,401,650.65
savings to North
Carolina taxpayers (calculated by
multiplying the
total number of
days credited by
the average daily
cost of incarceration
- $68.45) is another
tangible benefit of
this work.
Overall, NCPLS feels that the process employed in developing and
conducting the audit was fair and
open. We were generously provided an opportunity to offer our
suggestions to improve the process
(some of which were accepted),
and we were permitted to participate in the selection of the Audit
Team. Because the audit presented
a realistic chance to gain insight
and advice for improving program operations and the services
(Continued on Page 15)

Page 8

NCPLS ACCESS

Volume VII, Issue 2, June 2007

AM I ENTITLED TO MORE JAIL CREDIT?
By: NCPLS Staff Members Patricia Sanders, CLA, & Beth McNeill, Esq.

NCPLS receives thousands of
requests every year to assist
inmates in obtaining the sentence
reduction credit (jail credit) they
are due for time spent in jail on a
charge for which they were ultimately convicted. Our Jail Credit
Team consists of six full-time paralegals (working under the supervision of an attorney) whose
sole job is to investigate
inmates’ claims that they
are entitled to additional
jail credit. After reviewing the following basic
information regarding what
qualifies as jail credit, if
you believe you are entitled
to additional jail credit, we
encourage you to write to
NCPLS and request that we
investigate the matter for
you.
In North Carolina, there
are two main statutes that
govern jail credit: N.C. Gen. Stat.
15-196-1 and N.C. Gen. Stat. 15196.2. North Carolina Gen. Stat.
15-196.1 explains what time shall
be counted to reduce time to be
spent in prison. This statute states:
The minimum and maximum
term of a sentence shall be
credited with and diminished
by the total amount of time a
defendant has spent, committed
to or in confinement in any
State or local correctional,
mental or other institution as
a result of the charge that
culminated in the sentence.
The credit provided shall be
calculated from the date
custody under the charge
commenced and shall include

credit for all time spent in
custody pending trial, trial
de novo, appeal, retrial, or
pending parole, probation,
or post-release supervision
revocation hearing: Provided,
however, the credit available
herein shall not include any
time that is credited on the

allow defendants to receive credit
for the time they spend in a county
jail waiting to be admitted to the
DOC after they are convicted.
Many inmates are not aware of this.
An active sentence usually begins
the day a judge enters the judgment
against the defendant. Once an
active sentence starts, regardless of
where you are housed,
you are no longer entitled to receive credit for
the time you spend in
a county jail waiting to
be admitted to the DOC
because your active sentence has already begun
and the duration of the
sentence is being diminished day-by-day.

There are exceptions to
the rule that an active
sentence begins the day
the judge enters the
judgment – a suspended sentence
term of a previously imposed
(probation) and a split sentence.
sentence to which a defendant
A suspended sentence allows the
is subject.
defendant to remain in the community on probation, subject to
Case law defines confinement –
Morrissey v. Brewer, 408 U.S. 471, certain requirements imposed by
the court (such as reporting to a
92 S.Ct. 2593, 33 L.Ed.2d 484
probation officer routinely). The
(1972). In Morrissey, the U.S.
second situation is one in which a
Supreme Court pointed out that
short term of imprisonment begins
a person who does not have their
immediately, known as a “split
liberty restricted, who may be
sentence,” followed by a period
gainfully employed, is free to be
of probation. A judge sometimes
with family and friends, and may
has the discretion to impose a
function in society as a responportion of an active sentence, folsible, self-reliant person is not
lowed by release on probation for a
“confined.” Id. at 482.
specified period. In such cases, the
N.C. Gen. Stat. 15-196.1 also states defendant serves a portion of his
sentence in the Department of Corthat to receive jail credit on an
rection (DOC) or a county jail, and
active sentence a defendant must
have been confined on that particu(Continued on Page 9)
lar charge. This statute does not

Volume VII, Issue 2, June 2007

NCPLS ACCESS

Page 9

AM I ENTITLED TO MORE JAIL CREDIT?
(CONTINUED)

(Continued from Page 8)

is then placed on probation.
When a judge imposes a split
sentence, the judge has the option
to apply any jail credit to which a
defendant may be entitled, either
to the term of imprisonment or the
suspended portion of the sentence.
N.C. Gen. Stat. 15A-1351(a).
Again, many inmates are not aware
of this statute. If you are serving
a split sentence, before writing to
inquire about your jail credit, you
should first check your “Judgment
Suspending Sentence – Felony,
Imposing an Intermediate Punishment, Imposing a Community
Punishment (Structured Sentencing).” There is a specific place
on this form where the judge has
the option to give credit toward
the sentence imposed, which is
the suspended portion (the probation), or the imprisonment required
for special probation (the active
term). If a judge marks the box
by “the sentence imposed above,”
the defendant is not entitled to that
credit unless or until his probation
is revoked and and he is returned to
prison.
Inmates often write to NCPLS
asking about credit for time spent
on house arrest or on probation.
Inmates are not entitled to credit
for time spent on either house
arrest or probation. In State v.
Jarman, 140 N.C. App. 198, 535
S.E.2d 875 (2000), the North Carolina Court of Appeals determined
that when an individual is on
house arrest, he is not considered to
be confined as defined by case law.
Therefore, defendants are not
entitled to any credit for the time

spent on house arrest. In Hall v.
Bostic, 529 F.2d 990 (4th Cir.
1975), cert. denied, 425 U.S. 954,
96 S.Ct. 1733, 48 L.Ed.2d 199
(1976), the court determined that
there is nothing unusual in the
denial by North Carolina law of
credit for time spent on probation
or parole against a prison sentence.
It is common in both state and federal probation and parole systems,
and the validity of such denial has
been consistently recognized both
in federal and state decisions.

As this statute explains (rather
unclearly), jail credit is treated differently when a defendant receives
more than one conviction, depending on whether the sentences
are ordered to run concurrently
(together) or consecutively (one
after the other, also known as “boxcarred”). If a defendant receives
two or more sentences on the same
day and was in jail on any of the
charges for the entire time, then
sentence reduction credit should be
applied to all concurrent sentences.

N.C. Gen. Stat. 16-196.2 explains
how jail credit is applied to multiple sentences:

Keep in mind that this statute
works hand-in-hand with N.C.
Gen. Stat. 15-196.1. If a person
is arrested and incarcerated on
a charge on February 1 (for
example), and a second charge is
served on March 2, it is uncertain
whether or how much jail time will
be awarded on the second charge.
The calculation of jail credit in this
circumstance can be complex and
the correct calculation of credit
for specific sentences will likely
require review by one of our jail
credit paralegals.

In the event time creditable
under this section shall have
been spent in custody as a
result of more than one pending
charge, resulting in imprisonment for more than one
offense, credit shall be allowed
as herein provided. Consecutive
sentences shall be considered
as one sentence for the purpose
of providing credit, and the
creditable time shall not be
multiplied by the number of
consecutive offenses for which
defendant is imprisoned. Each
concurrent sentence shall be
credited with so much of the
time as was spent in custody
due to the offense resulting in
the sentence. When both
concurrent and consecutive
sentences are imposed, both
of the above rules shall obtain
to the applicable extent.

If a defendant is in jail on more
than one charge, is convicted on
all charges, receives more than one
sentence, and the sentences are run
consecutively, then N.C. Gen. Stat.
15-196.2 applies. Again, the way
it applies is not entirely clear. The
calculation of jail credit under these
circumstances can also be murky
and uncertain. The assistance of
our advocates may be very useful
in such instances.
(Continued on Page 10)

NCPLS ACCESS

Page 10

Volume VII, Issue 2, June 2007

AM I ENTITLED TO MORE JAIL CREDIT?
(CONTINUED)

(Continued from Page 8)

Case law explains the proper
calculation of jail credit. In State
v. Richardson, 295 N.C. 309, 295
S.E.2d 754; 1978 N.C. LEXIS 885,
the Supreme Court of North Carolina determined the proper way
to calculate jail credit. The Court
held that jail credit is computed by
excluding the first day and including the last. This means that when
jail credit is calculated, you do not
count the first day you are in the
jail, but you do count the day you
were transferred or released. In
other words, you do not count both
days. However, many jails and
clerks still count both days.
When a defendant receives a
suspended sentence but is ordered
to participate in the Drug Alcohol Recovery Treatment (DART)
program, the North Carolina Court
of Appeals determined in State
v. Lutz, 628 S.E. 2d 34, (N.C. Ct.
App. 2006), that he is entitled to
credit for time spent participating
in DART. There are two DART
programs. The first is the DARTCherry program which a defendant
participates in as part of the terms
of special probation. There is

also the DART program in which
inmates can participate while in
custody of the DOC. Day-for-day
credit should be received when
a defendant participates in the
DART-Cherry program. However,
in the DOC DART program, merit
or earned time credit is usually
given as an incentive for the inmate
to participate. The merit or earned
time will be less than day-for-day.
In the past, NCPLS also represented prisoners in cases seeking
credit for the time they spent in
IMPACT (Intensive Motivational
Program of Alternative Correctional Treatment). That question
was settled in State v. Hearst,
356 N.C. 132, 567 S.E. 2d 124
(August, 2002), The North Carolina Supreme Court ruled that
anyone who spent time in the
IMPACT program was entitled to
receive credit against their activated sentence for that particular
conviction. However, the IMPACT
program was discontinued in 2002.
Inmates also write to us about
credit for time spent in a jail in
another state. This usually happens
when a defendant on probation
leaves the State of North Caro-

lina and is picked up in another
state. If the defendant is picked
up in another state simply because
a North Carolina fugitive warrant is issued, then the defendant
is entitled to credit for all the time
spent in the other state’s custody,
plus the amount of time it took for
the defendant to be transported
back to North Carolina. That is
because the prisoner is being held
on the North Carolina charge and
N.C. Gen. Stat. 15–196.1 still
applies. However, if the defendant
is picked up in another state on a
criminal charge in that state, then
the question becomes more complex. Many factors must be taken
into account before a determination
can be made.
NCPLS jail credit paralegals investigate all kinds of questions regarding sentence reduction credits,
including jail time. If you believe
that you have not received all of
the jail credit to which you are
legally entitled, we encourage you
to write NCPLS with a complete
factual account. The more detail
you can provide in your letter, the
easier it will be for the paralegal to
determine whether your jail credit
has been properly calculated.

MEETING THE
CHALLENGES OF RE-ENTRY
By: Staff Attorney Michael G. Avery
According to the Department of
Correction, over 26,000 inmates
are projected to be released from
North Carolina prisons in 2007.
Furthermore, a study done by the
Bureau of Justice Statistics indi-

cates that the national recidivism
rate (the rate at which released
prisoners relapse into criminal
behavior) is greater than sixty
percent. Of those, almost fifty
percent were re-convicted within

three years of their release. See
Patrick A. Langan, Ph.D. & David
J. Levin, Ph.D., Bureau of Justice
Statistics Special Report, June
2002, NCJ 193427.
(Continued on Page 12)

NCPLS ACCESS

Volume VII, Issue 2, June 2007

Page 11

NORTH CAROLINA SENTENCING AND
POLICY ADVISORY COMMISSION UPDATE
By: Billy Sanders, Commissioner & NCPLS Office Administrator

The North Carolina Sentencing
and Policy Advisory Commission
has a statutory duty to review all
proposed legislation that creates
a new criminal offense,
changes the classification
of an offense, or changes
the range of punishment
or dispositional level for
a particular classification.
The Commission then
makes recommendations
to the General Assembly
regarding the proposed legislation. The Commission
recently reviewed approximately 90 such felony bills
drafted during the current
legislative session.
The Commission can take three
possible actions by majority vote:
1) find the bill is consistent with
the Structured Sentencing Offense
Classification Criteria; 2) find the
bill is inconsistent with the Offense
Classification Criteria; or 3) find
that the Offense Classification
Criteria are not applicable. (The
Offense Classification Criteria do
not apply to homicide offenses or
drug trafficking offenses.)
The Classification Criteria are
standards developed by the original Commission to decide if the
punishment proposed fits the harm
the bill is intended to deter. As an
example, the Offense Classification
Criteria for a Class G felony is
“serious property loss from the
person or the person’s dwelling.”
Class G felonies are reserved for
losses caused by property losses of
this type because there is greater

risk of danger to public safety in
those situations. If the bill creates
a Class G offense and the crime
does not involve “serious property

loss from the person or the person’s
dwelling,” the Commission will
ordinarily find that the punishment
in the bill is not consistent with the
Offense Classification Criteria. In
many cases, the Commission will
include a note that explains why a
punishment was found to be inconsistent with the Offense Classification Criteria.
Proponents of new crime legislation have occasionally submitted
bills that are inconsistent with the
principles of Structured Sentencing
in a different way – they contain
recidivist (repeated offenses) principles which are already accounted
for within Structured Sentencing
itself. As an example, a recent bill
proposed criminal punishment for
the operation of a “Chop Shop,” an
illegal enterprise which salvages
stolen cars for parts and sells them
on the market. The bill proposed
that a first offense be punished
under Class G – which was itself

problematic based on the above
criterion – and a Class F offense for
the second offense.
Under Structured Sentencing, prior criminal convictions are used to determine
the range of punishments
within a Felony Class.
For example, a person
convicted of a Class G
offense receives Four
Prior Record level points.
On a second conviction
of any felony, the range
of possible punishments
increases by application of
the Prior Record Level. In
the case of the “Chop Shop” bill,
not only was punishment of the
crime inconsistent with the Offense
Classification Criteria, it created a
recidivist statute which is inconsistent with the principles of Structured Sentencing and one that can
have a disproportionate effect on
prison resources. Predictability in
cost and prison housing needs were
among the primary rationales for
adoption of the Structured Sentencing Act.
An earlier example of the Sentencing and Policy Advisory Commission’s work was its analysis and
report related to an issue regarding
Youthful Offenders. The Commission’s report was submitted to
the General Assembly prior to this
year’s legislative session and recommended that youths should not
be tried as adults until they attain
the age of eighteen. (At present,
(Continued on Page 12)

NCPLS ACCESS

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Volume VII, Issue 2, June 2007

SENTENCING AND POLICY ADVISORY COMMISSION UPDATE
(CONTINUED)

(Continued from Page 11)

North Carolina is in the minority of
states that allow youths to be tried
as adults at the age of 16).
As a result, a bill was introduced
into the House of Representatives
which adopted the Commission’s
recommendation. House Bill 492
can be accessed at www.ncleg.net/
Sessions/2007/Bills/House/HTML/
H492v1.html, or by writing to:
Legislative Library
N.C. General Assembly
16 West Jones Street
Raleigh, NC 27601
The bill has a long list of sponsors, led by former NCPLS Board
Member Alice Bordsen.
A recent study conducted by the
Centers for Disease Control -

Prevention Task Force on Community Preventive Services
- concludes that the treatment of
youthful offenders under age 18 as
adults is counterproductive. A
summary of the study can be
found at: www.edjj.org/focus/
TransitionAfterCare/CDC%20task
%20force%20one%20pager%204.
20.07.pdf, or by writing to:

the Adult Justice System,” published in the American Journal of
Preventive Medicine (April 2007).

Robert A. Hahn, Ph.D., M.P.H.
Coordinating Scientist
National Center on Education,
Disability, and Juvenile Justice
University of Maryland
1224 Benjamin Building
College Park, MD 20742

Of course, after the Commission
conducts its reviews and makes
its recommendations, the General
Assembly can choose to follow,
modify, or ignore the Commission’s recommendations. However,
in the overwhelming majority of
cases the recommendations of the
Commission receive favorable
attention and are generally acted on
by legislators.

You can request the “Effects on
Violence of Laws and Policy Facilitating the Transfer of Juveniles
from the Juvenile Justice System to

Should the legislation become
law, fewer young people would be
going to prison in North Carolina,
and instead would receive the types
of educational and other services
available to juveniles elsewhere.

MEETING THE CHALLENGES OF RE-ENTRY
(CONTINUED)

(Continued from Page 10)

Many challenges confront those
re-entering civilian life, including
employment and housing, family
reunification issues, drug and alcohol treatment, health care services,
and transition for special populations such as sex offenders, domestic violence offenders and youthful
offenders. Recently, the Department of Correction’s Office of
Transition Services (OTS) held its
annual conference to address some
of these issues. The focus of this
year’s conference was “Shaping the

Future of Transition” by exploring
different approaches which have
proven effective in assisting people
to make successful transitions and
avoiding recidivism.
Prior to an offender’s release, OTS
provides services “designed to help
an inmate who is pending release
to live independently, to work, to
secure and maintain a residence, to
maintain health, to assume family
responsibilities, to participate in

community-based spiritual activities and to engage in a law-abiding, responsible lifestyle.” See
www.doc.state.nc.us/rap/OTS.htm;
and www.doc.state.nc.us/transition/
index.htm. Some of these services
include the Going Home Initiative,
Job Start, the Inmate Construction
program, and a variety of apprenticeship and vocational program
options.
(Continued on Page 14)

Volume VII, Issue 2, June 2007

NCPLS ACCESS

Page 13

THE ADA & HOW IT RELATES TO PRISONERS
By: Staff Attorney Michael G. Avery

The Americans with Disabilities
Act (ADA) prohibits discrimination
on the basis of disability by public
entities. 42 U.S.C. §12101. Title II
of the ADA provides that a disabled
person shall not be denied the
benefits of, excluded from
participation in, or subjected
to discrimination under any
program, services, or activity
conducted by city, county or
state governmental entities. 42
U.S.C. §§12111-117.

eligibility requirements for
the receipt of services or the
participation in programs or
activities provided by a public
entity.

In 1998, the U.S. Supreme Court
unanimously determined that the
ADA extends to state prisons. PA
Dept. of Correction v. Yeskey, 524
U.S. 206 (1998). According to
the Court, the ADA applies to
medical services, education
and vocation programs, library
access, and visiting and recreational activities, among other
things. Id.

Under either statute (the ADA
or the Rehabilitation Act), the
The ADA prohibits discriminastate is only required to make
tion against people with dis“reasonable modifications”
abilities. A person who suffers
in its programs, services, or
from a disability is one who
accommodations to avoid
has, or is regarded as having:
discrimination. 28 C.F.R.
(1) “a physical or mental impair§35.130(b)(7).
What constitutes
42 U.S.C.A. §12131(2). (The
ment” that (2) “substantially limits” Rehabilitation Act, 29 U.S.C. §794, a “reasonable modification” must
(3) one or more “major life activitake into consideration the needs of
also prohibits discrimination
ties.” See 42 U.S.C. §12102(2).
the prison environment for order,
against the disabled.)
security, management, etc. Courts
A “mental impairment” is “any
traditionally pay great deference to
The ADA contains three titles
mental or psychological disorder
the decisions of prison administrawhich prohibit discrimination in:
such as mental retardation, organic employment (Title I, §§12111tors in determining how prisons
brain syndrome, emotional and
should be run. See, 28 C.F.R. 35,
12117); public services (Title
mental illness, and specific learning II, §§12131-12182 12165); and
App. A at 466 (1995). Predomidisabilities.” 28 C.F.R. §36.104.
nate issues in prison ADA-related
public accommodations (Title
litigation cases include physical
III, §§12181-12189). This article
The ADA is designed to prohibit
focuses on Title III, which prohibits accessibility issues and accommodiscrimination against qualified
dations for deaf or blind prisoners.
discrimination by public accompersons with disabilities. The stat- modations. Specifically, Title III
See Love v. Westville Correction
ute defines a “qualified person with provides: “No individual shall be
Center, 103 F.3d 558 (7th Cir.
a disability” as:
1996) and Armstrong v. Wilson,
discriminated against on the basis
124 F.3d 1019 (9th Cir. 1997).
of disability in the full and equal
[A]n individual with a disenjoyment of the goods, services,
The Prison Litigation Reform Act
ability who, with or without
facilities, privileges, advantages,
(PLRA), which bars prisoners’
reasonable modifications to
or accommodations of any place
claims for mental and emotional
rules, policies, or practices,
of public accommodation by any
the removal of architectural,
person who owns, leases (or leases damages without a prior showing of physical injury (42 U.S.C.
communication or transporto), or operates a place of public
§1997e(e)), has been applied to
tation barriers, or the proaccommodation.” 42 U.S.C.
vision of auxiliary aids and
§12182(a).
services, meets the essential
(Continued on Page 14)

NCPLS ACCESS

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Volume VII, Issue 2, June 2007

THE ADA & HOW IT RELATES TO PRISONERS
(Continued from Page 13)

ADA claims. See Cassidy v. Indiana Dept. of Corr., 199 F. 3d 374
(7th Cir. 2000). Furthermore, the
administrative exhaustion requirement of the PLRA, 42 U.S.C.
§1997e(a), applies to claims
brought under the Rehabilitation
Act, as well. See Porter v. Nussle,
534 U.S. 516 (2002).
The Preamble to those regulations,
however, explains that a substantial limitation occurs “when the
individual’s important life activities
are restricted as to the conditions,
manner, or duration under which
they can be performed in comparison to most people.” 28 C.F.R.
Pt. 36, App. B, 600-601 (1997).
Similarly, under Title I, “substantially limits” is defined as “significantly restricts as to the condition,
manner, or duration under which an
individual can perform a particular
major life activity as compared to
the condition, manner, or duration
under which the average person in
the general population can perform
the same major life activity.” 29
C.F.R. §1630.2(j)(1)(ii). Substantial limitations need not rise to
the level of utter inabilities. See
Bragdon v. Abbott, 118 S.Ct. 2196,
2206 (1998); Taylor v. Phoenixville
Sch. District, 184 F.3d 296, 307

(CONTINUED)

(3rd Cir. 1999). EEOC guidelines
under Title I state that whether an
impairment substantially limits a
major life activity is determined in
light of: 1) the nature and severity
of the impairment, 2) its duration
or expected duration, and 3) its
permanent or expected permanent
or long term impact. See Dutcher
v. Ingalls Shipbuilding, 53 F.3d
723, 726 (5th Cir. 1995).
The Seventh Circuit has observed
that in some cases the terms “substantially limited” and “major life
activity” (discussed in the next
section) are interrelated and should
not be treated as two separate criteria. See United States v. Happy
Time Day Care Center, 6 F. Supp.
2d 1073, 1080 (W.D. Wis. 1998).
This is particularly the case when
the major life activity implicated
encompasses a broad range of
lesser activities. For example, as
will be discussed below, caring for
one’s self is a major life activity
that includes a wide range of lesser
activities. Therefore, a determination as to whether an individual is
substantially limited in caring for
one’s self requires a determination
based upon the cumulative effect
of overall impairment. See id.
at 1081; see also Vande Zande v.

Wisconsin Department of Administration, 44 F. 3d 538, 544 (7th Cir.
1995).
Major Life Activities
The Department of Justice’s regulations do not expressly define
“major life activities,” but they do
provide a list of illustrative, but
not exhaustive, examples of major
life activities: “major life activities means functions such as caring
for one’s self, performing manual
tasks, walking, seeing, hearing,
speaking, breathing, learning, and
working.” 28 C.F.R. §36.104.
The range of activities Congress
sought to include in this definition
is extremely broad: as one court of
appeals reasoned, the “plain meaning of the word ‘major’ denotes
comparative importance” or “significance,” and the term “life” is
“notable for its breadth.” Abbott
v. Bragdon, 107 F.3d 934, 939-40
(1st Cir. 1997), cert. granted, 118
S. Ct. 554 (1997); see also Doe v.
Kohn, Nast & Graf, 862 F.Supp.
1310,1320 (E.D. Pa. 1994) (holding that “the term ‘major life activities’ *** encompasses a lot [and
includes] the various major activities embraced within the full scope
of one’s life”). See next edition.

MEETING THE CHALLENGES OF RE-ENTRY
(CONTINUED)

(Continued from Page 12)

There is also a multitude of public
and private organizations providing supportive services for those
inmates already released from

prison or jail. As many of these
organizations focus their efforts
on individual communities, the
variety of options available varies

from community to community. A
fairly comprehensive list of these
resources organized by county can
be obtained by writing to NCPLS.

NCPLS ACCESS

Volume VII, Issue 2, June 2007

Page 15

ESTABLISHING EXCESSIVE FORCE
(CONTINUED)

(Continued from Page 3)

Unfortunately, while Doe may
have been able to prove a claim
of excessive force for the elevator
incident, the court would probably
dismiss the case on defendants’
motion for summary judgment
because Doe’s injuries would likely
be seen as de minimis.
This is the kind of analysis that a
legal professional uses to assess a
case and the chance of success in
litigation. Decisive factors include
the extent of the injury suffered
and witnesses, documents, or other
evidence that can corroborate an
account of improper or illegal
conduct. For this reason, it can
be critical that you document the
incident as best you can. This will
help lay the groundwork if you
should decide to file a lawsuit. In
this regard, witness statements can
be especially helpful.

To be of use in court, a sworn
statement must (1) be made on
personal knowledge, (2) set forth
such facts as would be admissible
in evidence, and (3) show that the
declarant is competent to testify to
the matters stated in the declaration. Additionally, the declaration
must be signed and dated. For use
in state court, such a document
must be notarized. In federal court,
however, it is enough (1) that the
declaration contain the following
language: “I declare under penalty
of perjury that this statement is
true and correct to the best of my
knowledge;” and (2) the declaration must be signed and dated by
the witness. Finally, in order that
the witness may be located if his
testimony should be needed in the
future, it is important that a permanent address be given (either that
of the witness, a spouse or a family
member through whom the witness
can be located). For this reason, a

prison identification number and/or
a date of birth can often be helpful.
Finally, there are a great many
things to think about before filing
a lawsuit – the time and cost of
litigation, the chance of winning
the lawsuit, and the amount of any
potential recovery. But one of the
most important things to be aware
of is the statute of limitation. A
statute of limitation is a law that
sets a time-limit for filing a lawsuit, and there are different timelimits for filing different kinds of
lawsuits. Usually, a case alleging
a violation of constitutional rights
may be filed within three years of
the incident upon which the suit
is based. Failure to file a lawsuit
within the time allowed by the
statute of limitation will ordinarily
prevent the injured party (plaintiff)
from ever getting the case into
court.

PROGRAM AUDIT OF NCPLS COMPLETE
(Continued from Page 5)

we deliver to our clients, we were
happy to work with IDS and SOG,
fully cooperating in the process
to provide assistance and support
at every juncture. The objective
findings of the Audit Team, rating
NCPLS operations and services
at 4.19 on a 5-point scale, we
believe to be reasonably accurate.
Although we are proud of that
ranking, we can never be satisfied
with anything less that perfection

(CONTINUED)

in serving our clients. We will
continue striving to improve those
services.
We respect and appreciate the
manner in which IDS conceived
and fulfilled the mandate of the
General Assembly throughout the
course of the program review. We
especially appreciate the leadership of IDS Executive Director
Malcolm Ray “Tye” Hunter, Jr.,
and Assistant Director Danielle M.

Carmen. We are grateful to Dr.
Maureen Berner, Associate Professor at the School of Government,
who was largely responsible for the
conception, design, and execution
of the audit plan. Finally, we thank
Joe Gavrilovich, MPA, John Rubin,
Professor, UNC School of Government and Virginia L. Hebert,
Legal Associate, Office of Indigent
Defense Services, for their assistance in planning and conducting
the audit.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.
1110 Wake Forest Road
P.O. Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: tsanders@ncpls.org

Visit our website at:
http://www.ncpls.org