The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS
PRISON OVERCROWDING:

Volume II, Issue I March 2002

ACCESS

How

WILL NORTH CARO-

LINA RESPOND? A REpORT FROM THE NORTH CAROLINA SENTENCING

&

POLICY ADVISORY COMMISSION

by Commissioner Billy Sanders, CLAS

Prison overcrowding is back in
the news. There are reports from
multiple media outlets that the
North Carolina General Assembly
is looking for ways to reduce the
prison population. As always,
these reports fuel prison rumors that
sentences are going to be slashed,
or that parole is going to be reinstituted. Hopefully, more accurate information will help inmates
understand the CUlTent situation
and how North Carolina will likely
respond.
Late last year, the General Assembly asked the North Carolina
Sentencing and Policy Advisory
Commission to "study and review
the State's sentencing laws in view
of the projected growth in the
prison population by 20 I 0," and to
"develop alternatives for consideration by the General Assembly."
On January 11, 2002, the Commission met and discussed several
alternatives which had been under
consideration by the Commission in
a st-udy which lasted most of 200 1.
The General Assembly is not bound
by any of the alternatives developed
by the Sentencing Commission, and
final approval of any new measures

will go through the normallegislative process. Those specific proposals will be discussed later in this
article.
First, exactly what is the current
situation regarding prison overcrowding? One of the functions of
the North Carolina Sentencing and
Policy Advisory Commission is to
project prison growth. Over the
course of its existence, the Commission has been remarkably accurate in projecting prison population
growth.
Without any changes in CUlTent
law, the Commission projects that
the prison population will grow
from about 33,188 this year, to
41,052 by 2011. That projected
increase in the prison population
may underlie the General Assembly's request that the Commission
examine alternatives to current
law.
The projected prison population
will exceed the State's operating
capacity in 2003 by 2,042 inmates.
The last session of the General
Assembly approved construction
of three new prisons, which will
increase prison capacity by 2,592
beds when they come on line in
2004. Without changes to current sentencing law, and in light of

planned construction, the operating
capacity of North Carolina's prisons
will exceed the Commission's
projections in 2005 by only 800
beds. Although there will be some
overcrowding in the mid-term
while new prison construction
takes place, the real crisis may
occur later in this decade.
The prison population is projected
to dramatically exceed operating
capacity by 2006, and by 2011, the
population will exceed capacity by
6,205 inmates. It is the projected
growth of the prison population
(Conlinued 0/1 page 3)

T is Issue:
Prison Over-crowding
Hamilton v. NC Dept. ofCorr.

2

Parole Eligibility

6

Hie Kinnaird: NCPLS StaffAttorney
and State Senat.or
8
Mothers in Prison

9

CPLS Updates Client File System II

Page 2
ACCESS is a publication ofNOlth 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,
NCCD, Wake Forest and Campbell.
NCPLS serves a population of more than
32,500 prisoners and 10,000 pre-trial
detainees, 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
Gary Presnell, President
Senator Frank W. Ballance, Jr.
Jim Blackburn
James A. Crouch, Esq.
Professor Grady Jessup
Paul M. Green, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.P.A.
Professor Ronald F. Wright
Professor Fred Williams
Executive Director
Michael S. Hamden, Esq.
Editor
Sharon Allison-Vincent
Executive Administrative Assistant
Alticles, ideas and suggestions are welcome: sallisonvincent@ncpls.org

NCPLS

HAMILTON f:

Volume II, Issue 1 March 2002

ACCESS

NC DEPT.

OF CORRECTION

NC COURT OF ApPEALS UPHOLDS TRIAL COURT DECISION

According to the North Carolina
Court ofAppeals, employees of the
Department of Correction who are
responsible for processing judgments received from the courts do
not have the authority to change
the sentences which have been
imposed by those courts. In a decision handed down on November
20,2001, the Court concluded that
the sole authority to correct illegal
sentences rests with the courts.
Therefore, even when a judgment
reflects an illegal sentence, Department of Correction employees must
enter the sentence in Department
records as the court has ordered.
Under such circumstances, Department employees must notify the
sentencing court and the parties
that the sentence is illegal, but it is
up to the court - not DOC employees - to correct the problem.
The case is Hamilton v. Freeman, which was first profiled in an
article in these pages in the Spring
of 2000. The case is a class action
lawsuit filed by North Carolina
Prisoner Legal Services on behalf
of all inmates in the custody of the
Department of Correction whose
sentences have been changed by
the Combined Records Office of
the Department of Correction. As
a result of those actions, NCPLS
alleged that plaintiffs and members
of the class were serving longer
sentences than those imposed on
them by the sentencing courts.
Specifically, these inmates had
received conCUlTent sentences
for crimes for which consecutive
sentences are required by statute,

or had received CYO status from
the sentencing court although they
were statutorily ineligible for it.
When Department of Correction
employees received these judgments for concurrent sentences,
they entered the sentences in their
records as consecutive sentences.
To compound the problem, DOC
failed to keep records or notify
anyone that the sentence had been
changed. North Carolina Prisoner
Legal Services alleged that practice
is illegal under both State and FederaI law and sought an injunction
ordering a halt to the practice.
After four years in litigation, the
case was decided favorably for
the plaintiff inmates in the trial
court. On July 3, 2000, Judge
Howard Manning of the Wake
County Superior Court ruled
that the Department's practice of
changing judgments violates State
law and required that judgments
be honored, even if they may be
illegal. Judge Manning specifically
ordered the Department to enter
judgments for concurrent sentences
as concurrent sentences, and to
notify the sentencing court that the
sentence may be illegal and in need
of correction. The Department of
COlTection appealed the decision of
the trial court to the North Carolina
Court of Appeals, and obtained a
stay of the trial court's Order, pending the outcome of the appeal.
In its recent decision, the Court of
Appeals upheld the order of Judge
(Continued on page 4)

NCPLS ACCESS

Page 3

Volume II, Issue 1 March 2002

Sentencing Commission
(Continuedfrom page 1)

over the next decade, rather than
an immediate need for new prison
space, that may have the General
Assembly searching for answers.
One possible alternative is simply
to build new prisons to accommodate the increase in population. However, that would be an
expensive approach which seems
unlikely to gain support, especially
given recent budget constraints.
Reasons for Growth
The crime rate has declined by
14.7% since 1995. Even though
the crime rate has decreased since
the introduction of Structured Sentencing, the prison population has
grown. What are the reasons for
that growth? The answer is more
complicated than one might think.
Crime Rate per 100,000 Population [Source: North Carolina State
Bureau of Investigation]
1995 - 5,766.7
1996 - 5,649.8
1997 - 5,593.7

1990's, North Carolina added about
389 people each day. Therefore,
even though the crime rate has
decreased, this decrease was offset
by the growth in the overall population.

to the present, there were 5,706
more prison entries than prison
exits, as there are more convicted
people entering the prison system
than are being released on an
annual basis.

Number of Prison Entries [Source
- N.C. Department of Corrections]

Number of Prison Exits [Source
- N.C. Department of Corrections]

1995 - 24,625

1995 - 19,074

1996 - 23,541

1996 - 22,083

1997 - 24,972

1997 - 24,025

1998 - 26,156

1998 - 25,805

1999 - 25,180

1999 - 26,083

2000 - 23,486

2000 - 25,859

2001 - 23,437

2001 - 22,762

Despite the rapid growth in the
State's population, the number of
persons entering the Department of
Correction has remained fairly constant since the implementation of
Structured Sentencing. There was
an increase from 24,625 in 1995 to
26,156 in 1998, but since that time,
the number of persons entering
prison has declined to below the
1995 level.

A phenomenon of Structured
Sentencing and one of the primary
reasons for the growth in the prison
population is the "stacking effect."
Persons convicted of less serious felonies are either diverted to
probation, or are given relatively
short sentences. Persons convicted
of more serious felonies are serving
longer periods of time in prison. In
general, this means an increase in
the number of people convicted of
the most serious crimes and sentenced to the longest prison terms.
That trend is expected to continue.

1998 - 5,427.8
1999 - 5,269.2
2000 - 4,921.5
Between 1950 and 1990, North
Carolina's population increased
by about 12 to 13 percent each
decade. However, in the 1990's, the
State grew by 21.4 percent, ballooning to over 8 million residents
and becoming the nation's ninthfastest-growing state. During the

However, criminal defendants who
commit serious felonies under
Structured Sentencing are spending
longer periods of time in prison.
Offenders released in 1993 - the
last year of the old system - had, on
average, served less than 20 percent of their sentenced time. Those
incarcerated under the Structured
Sentencing Act serve 100 percent
of their minimum sentence. As a
result, during the years from 1995

As time marches on, those in North
Carolina prisons serving relatively
short sentences will decline as a
percentage of the total population. This not only results in fewer
prison exits per year, but in a need
(Contilluued on page 5)

Page 4

Hamilton vs. N. C.
Department of
Correction
(Continedfrom page 2)

Manning, agreeing with the trial
court that the Department's practice violates State law. The Court
further noted that the trial court's
order (requiring the Department
to enter judgments for concurrent
sentences as concurrent sentences,
and to notifY the sentencing court
that the sentence may need to be
corrected) applies to all inmates
currently in custody of the Department, as well as to inmates who
will come into custody of the
Department in the future.

NCPLS ACCESS
we can most efficiently serve our
clients by providing information
through forms, letters, pamphlets
and booklets.
Divorce is a subject of interest to
many inmates, and the NCPLS
Divorce Packet is one of our most
frequently requested publications.
Although we do not offer legal
representation to inmates involved
in divorce proceedings, filing for an
absolute divorce is a fairly simple
legal procedure, and almost all of
our clients have been successful
using the forms and instructions
contained in the Packet.
Under North Carolina law, there is
only one requirement for an absolute divorce: the married couple
must have lived separately for one
year. That means the parties do
not have to prove anything else,
such as adultery or incompatibility. Therefore, little paperwork is
usually required, and the only issue
to be proved at the hearing is how
long the couple has been separated.

However, the decision of the trial
court is still not final. The Department of Correction has asked the
North Carolina Supreme Court to
review the Court of Appeals decision, and has again asked for a
stay of the trial court's order. As
of this writing, the North Carolina
Supreme Court has granted the
Department's request for a stay, but
has yet to decide whether it will
If an inmate has been in prison
review the case.
for one year or more, there is no
INFORMATION ABOUT question that the parties have been
separated for one year. But, if the
INMATE DIVORCE
separation began before incarceration, the date on the Complaint and
PROCEEDINGS
the testimony at the hearing will be
by Eleanor G. Kinnaird, Staff Attorney
considered evidence bearing upon
People who are incarcerated deal
the one-year requirement. Most
with similar circumstances and
spouse/defendants don't bother
sometimes experience similar
to contest the divorce or even
problems. Last year, more than
appear at the hearing. If the spouse
10,000 North Carolina inmates
doesn't dispute that the parties have
turned to NCPLS for information lived apart for one year, the divorce
and legal advice. For some of the will ordinarily be granted. But if
most common problems people
the spouse does object by filing
experience, we have found that
an Answer to the Complaint, the

Volume II, Isssue 1 March 2002
inmate may have to prove the
separation occurred and continued for one year. An example
of persuasive evidence tending to establish the period of
separation would be a home or
mailing address that was different from the spouse's address,
established more than one year
before the Complaint was filed,
such as a driver's license showing your residence at the time
of separation.
After the Complaint has been
filed and the time for filing an
Answer has passed, the inmate
should write to the clerk of
court to ask the clerk to issue
an order requiring prison officials to transport the inmate to
the hearing. Such an order is
called a writ of habeas cOlpus
ad testi candum. (It is almost
always best to file the Complaint in the county where you
are incarcerated. One reason is
that it is easier and less expensive for officials to arrange for
your attendance at the hearing.)
A few inmates have written our
office saying the judge refused
to writ the inmate to a hearing.
Instead, the judge required
the inmate to file a motion for
Summary Judgment. Summary Judgment is an appropriate procedure when there is no
dispute over the facts and the
matter can be decided by the
judge without a hearing. While
this is easier and cheaper for
the courts and correctional
professionals, it can be a little
(continued on page 11)

NCPLS

Page 5

ACCESS

Volume II, Issue 1 March 2002

Sentencing Commission
(Continuedfrom page 3)

for more prison space devoted to
higher custody classifications. It
is more expensive to build prison
space for higher custody levels, and
more expensive to operate those
pnsons.
Sentencing and Policy Advisory Commission Report

From the perspective of an inmate
presently serving a term of imprisonment, if is important to understand that none of the alternatives
recommended by the Sentencing
Commission to the General Assembly affect those sentences.
Regardless of rumors or media
reports, there are no plans under
discussion to shorten the sentences
of people who are now serving
prison terms, or to re-institute
parole. One of the reasons this
topic is not under discussion is
because it is inconsistent with one
of the basic tenets of Structured
Sentencing.
The most severe critics of former
sentencing laws deplored the
large discrepancy in the sentences
handed down from the bench and
the length of time actually served
on those sentences. Victims rights
groups, prosecutors, judges, and
other segments of society argued
strongly that everyone in the
criminal justice process, and those
affected by it, should know exactly
how long a criminal defendant
would have to serve on a sentence. Thus, "Truth in Sentencing"
became a cornerstone of Structured
Sentencing.

In developing alternative proposals, the Sentencing Commission
was constrained by the principle
of "Truth in Sentencing." It would
undermine this principle to retroactively modity sentences that have
already been imposed, and any
such initiative would face strong
opposition.
The most significant alternatives
the Sentencing Commission presented to the General Assembly
focus on changes in the Structured
Sentencing "grid" - the chart that
reflects the time to be served upon
conviction for each class of felony,
in light of the seriousness of the
offense and the offender's prior
record level. The "grid" currently
contains some inconsistencies
which were addressed by the Com-

prior convictions ...." G.S.
§15A-1340.l4(a). Thehigherthe
prior record level, the longer the
prison sentence. Cunently, to be
sentenced under the lowest prior
record level, Level I, a defendant
can have no prior convictions, or
opoints. A defendant moves from
Prior Record Level I into a higher
prior record level if that defendant
has had any prior convictions. The
prior record levels for felony sentencing are:
(l) Level I -

0 points.

(2) Level II - At least 1, but not
more than 4 points.
(3) Level III - At least 5, but not
more than 8 points.
(4) Level IV - At least 9, but not
more than 14 points.

miSSIOn.

(5) Level V - At least 15, but not
more than 18 points.

For example, there is a lack of consistency from one prior record level
to another, in terms of the number
of months each increase in prior
record level produces. Simply by
making the percentage increase
between prior record levels consistent (in terms of months to be
served), the prison population projections over ten years decrease by
1,084. The Sentencing Commission recommended that change.

(6) Level VI - At least 19 points.

There is also a lack of consistency
among prior record levels. "The
prior record level of a felony
offender is determined by calculating the sum of the points
assigned to each of the offender's

The Sentencing Commission has
recommended that Level I should
allow as many as two points. If
adopted, that change alone will
have the effect of reducing the
prison population by 1,455 in ten
years.
The Commission also recommended extending the period of
post-release supervision from nine
months to one year. In effect, the
term of imprisonment would be
reduced by three months, and the
period of post-release supervision would be increased by three
(Continued on page 7)

Page 6

NCPLS

ACCESS

Volume II, Issue 1 March 2002

PAROLE ELIGIBILITY: CLASS C FELONIES UNDER THE FAIR SENTENCING ACT
by Linda Weisel, Senior Attorney,

and Kari Hamel Manging Attorney

On December 7, 2001, NCPLS
StaffAttorneys Susan Pollitt and
Kari Hamel filed a Complaint in
Wake County Superior Court,
asserting that five plaintiffs, all
sentenced to life in prison under the
Fair Sentencing Act, must receive
sentence reduction credits toward
calculation of their parole eligibility dates. Senterice reduction credits include good time, gain time,
and meritorious time earned while
incarcerated.

§§ 15A-1340.7(a) and 148-13(b), It can take as long as a year for
mandating sentence reduction cred- the Court of Appeals to review
its for good time, gain time, and a decision on appeal.
meritorious time earned by inmates
who are serving life sentences for
The litigation surrounding how the
Class C felonies. Pursuant to these
Department of COITection impleregulations, which are codified in
ments its own regulations regarding
administrative code provisions 5
parole eligibility has garnered media
N.C.A.C. 2B.Olll(d), 2B.0112(c),
attention. On January 23,2002, The
2B.0114(a), inmates who are senNews & Observer, North Carolina's
tenced to a term oflife imprisonment
state-wide newspaper, published an
for a Class C felony must be given
article about this pending litigation
sentence reduction credits earned
entitled, "Inmates not getting goodwhile incarcerated.
Although
behavior credit, suits say. "
N.C.G.S. §§ 15A-1340.7(a) and
148-13(b) were repealed as a result
of the enactment of the Structured If you were convicted of a Class
Sentencing Act, these prior statu- C life sentence under the Fair
tory provisions are still applicable Sentencing Act (that is, before 1
to Plaintiffs, who were sentenced October 1994), you have not yet
under the Fair Sentencing Act.
been considered for parole, and you
believe you are eligible for relief
under DOC regulations, please feel
The issues raised by Plaintiffs have
free to write to NCPLS for more
previously been addressed by the
information.
courts in Teasley v. Becka/JdBates
v. Bec%; Nos. 99 CVS 11631 and 01
CV 8809 (Wake Co. Superior Ct.,
Sept. 18, 2001). The defendants
in Nasleyand Bates were ordered
to recalculate the parole eligibility
dates of the two plaintiffs. The
defendants obtained a stay of the
Superior Court's order to make
sure the order does not affect any
additional inmates similarly situ- Susan H. Pollitt, Senior Attorney
ated. In each case, the defendants
also appealed the Superior Court's
orders granting the plaintiffs relief.
NCPLS hopes the Court of Appeals
will issue a favorable decision in
kasleyand Batesthat will benefit
all inmates who have Class C life
sentences and are similarly situated.

Plaintiffs brought their action for
declaratory relief against the Secretary of the Department of Correction (DOC) and the three members
of the Parole Commission. vereen
et aJ 'v. Beck, et aJ, 'No. 01 CVS
15053 (Wake Co. Superior Ct., Dec.
7,2001).
Plaintiffs complain that their eligibility for parole would be earlier
if sentence reduction credits they
have earned were applied toward
the reduction of their sentences. A
related concern also surfaced. Consideration for custody promotions is
linked to those same parole eligibility dates. For people serving Class
C life sentences, because sentence
reduction credits are not applied
in calculating the parole eligibility
date, custody promotions are consequently deferred.
Plaintiffs based their claim upon
regulations issued by the Secretary
of Correction, pursuant to his discretionary authority under N.C.G.S.

NCPLS ACCESS

Page 7

Volume II, Issue 1 March 2002

Sentencing Commission
'(Continued/rom page 5)

North Carolina faces prison overcrowding in the long term
months. This change would result
in a reduction in prison population
of 591 inmates in ten years.
With regard to specific sentences,
the Commission forwarded two
recommendations. The Commission recommended reducing
from a Class C felony to a Class
F felony the crime of committing
a sexual offense against a person
between 13 and 15 years of age by
a defendant who is more than four
years, but less than six years older.
Although such a change would
not result in a significant change
in prison population, the Commission felt that the offense should be
reclassified.

Perhaps the most controversial
change recommended, and the
one likely to face the most serious
opposition in the General Assembly, is the proposed change to the
Habitual Felon Statute. Currently,
all those who are convicted of
Habitual Felon status are sentenced
as Class C felons, regardless of
the underlying offense for which
they are convicted. The Sentencing Commission forwarded a
proposal that people convicted of
Habitual Felon status be sentenced
at three class-levels higher than the
underlying offense. For example,
someone convicted of breaking
and entering (a Class H felony),
and convicted as an habitual felon,
would be sentenced at three class
levels higher, as a Class E felon

(rather than as a Class C felon, as
would be the case under CUlTent
law). The adoption of this proposal
would result in a projected reduction of 1,879 of the prison population in ten years.
One should note that the changes
in prison population that these
recommendations are expected to
produce may be affected by other
changes in Structured Sentencing
law. Each projection is accurate
only with respect to the particular change it accompanies. Other
changes in the law could impact
the projected decrease of any
individual measure. However, if
the projections were equal to the
(Continued on page 10)

Page 8

NCPLS ACCES'S

ELLIE KINNAJRO: NCPLS STAFF ATTORNEY
Since 1993, Ellie Kinnaird has
devoted her career in the law to
advocating on behalf of prisoners.
As a StaffAttorney with North Carolina Prisoner Legal Services, Ellie
has overcome numerous obstacles
and challenges in convincing often
unsympathetic audiences that the
inmates she represents have thc
potential to live productive lives.
Most of her work has focused on
helping in,mates to maintain or to
re-establish family ties, especially
for incarcerated mothers. In this
connection, Ellie, working with
Paralegal Kady McDonald, CLA,
has developed self-help materials
for inmates who are seeking visitation with their children, as well
as informational packets to assist
people who arc embroiled in child
support contToversies, divorce
actions, and proceedings to tenninate parental rights.
Ellie also provides direct representation to many prisoners. For
example, in a recent case, Ellie's
client needed help to arrange visitation with her daughter, a minor
in custody of our client's ex-husband. Even though there was a
consent order in force that allowed
visitation every other weekend, the
ex-hushand refused to bring the
child to visit or let anyone else do
so. He also refused to allow our
client to speak with her daughter
by telephone. Ellie learned that our
client's parental rights had been
terminated \vithout notice to her,
and hased upon a false accusation
of abandonment. With the ahle
support of Paralegal Kady McDon-

Volume II, Issue I March 2002

&

STArE SENATOR

aid, Ellie appeared in court on our
client's behalf and successfully
argued that parental rights should
be restored. But the ex-husband
filed a new motion to terminate
parental rights based on our client's
alleged abandonment and neglect
of the child. In response, Ellie presented overwhelming evidence that
her client had not abandoned or
neglected her child; in fact, she had
tried to provide child support,

Senator & StaffAlIorney
Eleanor Kinnaird
she sent cards and letters, made
phone calls, and even put an ad in
the local newspaper in the hope
that her child would see it. In light
of the evidence, the court decl ined
to terminate parental rights anel
ordered supervised visitation every
other weekend. That order seemed
to end four years of advocacy on
behalf of our client by NCPLS
StatT Attomey Ellie Kinnaird.
Recently, however, it came to light
that the ex-husband had flagrantly
disobeyed the court order, refusing to allow any contact between
the child and Ellie's client. In
subsequent mediation between

the parties, the defendant/ex-husband agreed to facilitate visitation
between our client and her daughter.
Ellie has also been the moving
force behind the creation of a
ground-breaking program which
will allow incarcerated mothers
to spend time with their children
within the confines of a correctional setting. [See "Mothers in
Prison," an article in this edition of
Acc/iJ:.s:] The Prison Nursery Project will afford mothers and children
an opportunity to build and maintain bonds that are essential to child
development. Through the Project,
imprisoned mothers will participate
in education designed to enhance
parenting skills and social responsibility.
Ellie's advocacy and leadership
extend far beyond her work at
NCPLS. She has been active for
many years in a number of civic
organizations, but Ellie's service in
elective office began in 1987 when
she successfully ran for Mayor of
Carrboro, North Carolina. After
four telms in office, Ellie was
elected to the North Carolina
Senate in 1996 as a representative o[the 16th District (covering
Orange, Chatham, Moore, and parts
of Lee and Randolph Counties).
Now in her third term, Ellie has
been a champion and strong advocate for education, environmental protection, campaign finance
reform, and safeguarding the rights
of seniors, the disabled, children,
and prisoners.
(Contillued Oil page 9)

Page 9

Volume II, Issue 1 March 2002

NCPLS ACCESS

Ellie Kinnaird:
NCPLS Staff Attorney & State Senator

(Continuedfrom page 8)

Ellie Kinnaird is an exceptional person who has
demonstrated a profound
commitment to public
service and the citizens
of North Carolina. We at
NCPLS are especially proud
of our friend and colleague.
MOTHERS IN PRISON:
THE PRISON NURSERY
PROJECT

In the Legislature, Ellie has been
elected Chair of the General
Assembly Women's Caucus for
the 2001-2002 legislative session.
Last year, she led a successful
effort to ban the death penalty for
mentally retarded defendants, and
she sponsored legislation calling for a moratorium on the death
penalty. (Studies show that African-Americans and poor defendants disproportionately receive
death sentences.) In presenting her
its "Outstanding Public Service
Award," the National Coalition to
Abolish the Death Penalty cited
Ellie for inspirational legislative
work "in opposition to the death
penalty and in support of a moratorium."
Ellie Kinnaird has also been honored by a host of other organizations for her service to the citizens
of this State. For example, in
2001, Ellie was presented the
"Defenders of Justice Award"
by the North Carolina Justice &
Community Development Center.

More recently, the North Carolina Academy of Trial Lawyers
presented Senator Kinnaird with
the Outstanding Legislator Award
and recognized her as "the best in
the legal profession as related to
public service." In January 2002,
the Chapel Hill/Carrboro Association of Educators presented Ellie
this year's "Friend of Education
Award." Ellie was cited for her
tireless work "for all educators ,
both local[] and statewide," and
especially for her "longtime commitment to the welfare of teachers
in the local area ...." Additionally,
Child Care Services of Orange
and Durham Counties recently
presented Ellie its Public Service
Award. Senator Kinnaird chairs
the Senate Children and Human
Resources Committee.
An accomplished classical musician, Ellie played professionally
for a number of years. She is
the mother of three sons and the
grandmother of two lovely granddaughters.

One of the harshest consequences of incarceration is
the effect on the children
left behind. 80% of women
coming into prison have children.
Care for those children while the
mother is incarcerated places a
burden on family members and
foster parents. But the greatest
burden is on the children who often
suffer deep cognitive, social and
psychological wounds from which
they never recover.
Many women are pregnant when
they come into the prison system.
Under the present system, the child
is taken away from the mother
immediately after the birth and
given to her designee; sometimes a
relative, often a foster parent. The
crucial time for developing a bond
between mother and child is lost
and seldom regained. Making the
problem worse, the care for the child
may be deficient or inadequate. We
know that the earliest years of a
child's life are the most important
~or brain development and learning,
Including the foundations for ethical and social maturation.

(Continued on page 10)

-

-b~

,.LV

Mothers in Prison
(Conlinllcdji'olll page 9)

To address this important issue for
women and their infants, an exploratory committee is planning the
establishment of a prison nursery.
The nursery would provide intense
pre-natal services in health care,
nutrition, drug addiction treatment,
personal dysfunction therapy, and
parenting skills for the pregnant
incarcerated women. After the child
is born, the best available child care
would be provided through Early
Head Start and Smart Start. The
mothers would learn how their
infants develop and how to interact
appropriately with them. Mothers and infants would bond in the
healthiest relationship possible, and
the mothers would be provided support through instruction in important parenting and life skills. Two
years of after-care, including the
best available child care and housing, employment, education and
addiction treatment, would be part
of the continuum of services.
Four states have prison nurseries,
but none of them have researched
(continued on page II)

NCPLS ACC:ESS

Volume II, Issue I March:

Sentencing Commission
(Conlinuedfmm page 7)

sum of their individual impacts, the
total reduction would amount to
5,009 prison inmates in ten years.
Based on the Commission's current projections, even if all of its
recommendations are adopted, the
Department of Correction will still
be 1, I 00 inmates over operating
capacity at that time.

Mixed Response
The General Assembly may decide
to pass into lawall, some, or none
of the proposals forwarded by the
Sentencing Commission. The
Legislature could also modify
some or all of those proposals, or
come up with completely different approaches. For example, it is
possible that the General Assembly
could direct the NOlth Carolina
Post-Release and Parole Commission to focus more on those who
are eligible for parole under former
law. Currently, there are 8,009
inmates serving sentences under
pre-Structured Sentencing laws,
many of whom may currently be
eligible for parole.

The Governor's Crime CommiE
sion has undertaken a study of 1
to deal more effectively with thl
who are on probation, and to he
them prevent revocation of their
probation. Currently, 46% of ne
admissions to the prison system
each year come from revocationt
of probation for technical reason
- that is, reasons other than the
commission of a new offense.
Those in prison for technical viol
tions of probation account for 36(
of the total prison population.

Thanks to the work of the North
Carolina Sentencing and Policy
Advisory Commission, the State 0
North Carolina now has accurate
and timely projections of the priso
population which provide it the
foreknowledge needed to deal wit!
prison overcrowding.

It is, of course, difficult to predict
what course of action the General
Assembly may take to deal with
this problem, but it is a good bet
that, even if all of the Sentencing
Commission's recommendations
are adopted, some new prison
construction will be undertaken
over the next ten years to prepare
for the projected increases in priso
population.

*[Editorial Notc: Billy Sanders,
serves as a Commissioner on the
NOlth Carolina Sentencing and
Policy Advisory Commission.
Sanders is employed by NCPLS a~
a Certified Legal Assistant Special
ist. ]

Page 11

NCPLS ACCESS

Divorce
Proceedings
(Continuedfrom page 4)
more work for the inmate.
First, a Summary Judgment Motion
has to be filed with the clerk. And,
like all documents filed with the
court, a copy of the Motion has to
be served on the opposing party
(or that party's attorney) by regular first-class mail. After 60 days,
if no response has been filed, the
inmate can ask the court to decide
the matterwithout a hearing. That
request could be called a "Waiver
of Hearing and Request for a Decision Based Upon the Pleadings,"
for example. In that document,
it should be noted that a Motion
for Summary Judgment was filed
in the case (on a certain date),
that no response to the motion
was received within the allowed
time, that there is "no dispute as
to any material fact," and that the
matter is now ready to be decided.
It may also be useful to attach a
proposed Order for the judge's
signature, should he decide to grant
the motion. (The proposed order
should look like any other pleading in the case, reflecting the case
name, the docket number, the court
in which the matter is pending,
and so forth. It should also briefly
recite that the action is one for
absolute divorce, that the parties
have lived apart for one-year, that a
motion for summary judgment has
been filed without response, and it
should conclude that an absolute
divorce is granted by the court.) If
the judge approves, the proposed
order can be signed, dated, and
filed as a final judgment in the case.
Because courts infrequently deal
with divorce actions involving

inmates, some of these procedures
are not well settled and may vary
from one county to another. If you
encounter difficulty in the process
that is not addressed in the NCPLS
Divorce Packet, please write to us
and let us know. We may be able
to help you resolve your particular
problem, and we are working with
judges and the courts to develop a
standardized approach to divorce
proceedings that involve inmates.
[Editor's note: Senator Kinnaird,
now in her third term, has been
invited to appear several times as a
guest speaker at the Annual Judges
Conference to discuss issues affecting inmates in their dealings with
the courts.]

Volume II, Issue 1 March 2002
filling space. In most cases, the
problem about which our client
wrote has long since been resolved
or forgotten, and/or our client has
been released from custody. Maintaining such files costs money that
could be better spent.
For these reasons, we plan to dispose of all NCPLS files opened in,
or before 1990. We will continue
to maintain files opened after that
date until further notice.
If you asked our office for assistance before 1 January 1991 and
you want the materials in your file
returned to you, please let us know
by letter before 30 April 2002. We
plan to destroy all files that have
not been requested by that date.

NCPLS Updates Client File System

Mothers in Prison

NCPLS is in the process ofupdat(continued from page 10)
ing its system for storing client
Pies. This project involved the
installation of a new filing system
what happens to the children born
in our office, as well as the retrieval into the nursery. We know that
of files from an off-site storage
children of incarcerated parents
facility. We hope that this prohave a high risk of entering the
ject will enable us to improve the
criminal justice system themselves.
speed at which we can evaluate and Researchers on the exploratory
respond to requests for assistance
committee are eager to find out
from our clients.
if the prison nursery lowers the
recidivism rate of mothers and
leads to successful lives for the
An important part of this project
children. The goal is to foster
is the disposal of older closed
healthy mothers and children
files. NCPLS has thousands of
who are contributing members of
files, some dating more than 20
our community. The exploratory
years. In most cases, the matters
committee is hoping to establish
that these files involved no longer
a prison nursery program that will
have any legal significance. Most
realize that goal.
of those files serve no purpose
other than sitting in filing cabinets,

NORTH CAROLINA
PRISONER LEGAL SERVICES,

INC.

224 S. Dawson Street
PO Box 25397

Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919)856-2223
Email: sallisonvincent@ncpls.org

Visit our website at: www.ncpls.org

North Carolina Prisoner Legal Services, Inc.
PO Box 25397
Raleigh, NC 27611