The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume V, Issue 3, September 2005

ACCESS

LEGISLATURE BANS
SMOKING IN PRISON
In the waning days of the 2005 Ses- The law will take effect on January
sion of the General Assembly, law- 1, 2006, and smoking inside cormakers passed
a bill that prohibits smoking
inside the state’s
prisons. Senate
Bill 1130 “An
Act to Prohibit
Smoking in State
Correctional
Institutions,”
amending Article
2 of Chapter 148
of the General
Statutes, §14823.1, ratified
August 24, 2005.
The measure was
adopted “to protect the health,
rectional facilities will be prohibwelfare, and comfort of inmates . .
ited after that date.
. and to reduce the costs of inmate
health care.”
The legislation also directs the
Department of Correction to
According to the newly adopted
conduct a pilot project “banning
legislation, “No person may use
smoking both inside buildings and
tobacco products inside of a State
on the grounds of State correctional
correctional facility, except for
institutions.” In connection with
authorized religious purposes.”
the pilot project, DOC is directed
Prisoners who violate the law may
to administer smoking cessation
be subjected to disciplinary meaprograms for inmates and staff.
sures that may include the loss of
Participation in such programs
sentence reduction credits. Corcannot be coerced, according to the
rectional officers and other DOC
law, but must be voluntary. The
employees, as well as visitors, may smoking cessation program “shall
also be sanctioned for violations of include instructions and education
the law.
that will help inmates and staff

cease the use of tobacco products
and remain smoke free.”
The purpose of
the pilot project is to study
the feasibility
“of a two-year
phase-in program
banning smoking
by all inmates,
personnel, and
visitors in all
buildings and
on all grounds
of State correctional institutions
operated by the
Department of
Correction.”
In this Issue:
Legislature Bans Smoking in Prison

1

ABA Encourages Liberal Access to
Prison Telephones

2

General Assembly Restructures Delivery
of Legal Services to Prisoners
3
Update on Blakely’s Retroactive
Application

5

NCPLS Helps Prisoners to Get
Appointed Counsel on Child Support
Civil Contempt Charges
9
Earning Freedom

10

NCPLS Contributes to New Law
School Casebook

14

Writing to NCPLS

14

Litigation Leads to New DOC
Policy Recognizing Legally
Changed Names

15

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 36,000 prisoners and 14,000 pretrial 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
President, Fred Williams, Esq.
Jim Blackburn
Michelle S. Cofield, Esq.
James A. Crouch, Esq.
Dean Ronald Steven Douglas
Professor Grady Jessup
Barry Nakell, Esq.
Susan Olive, Esq.
Gary Presnell, Esq.
Professor 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 V, Issue 3, September 2005

ABA ENCOURAGES LIBERAL
ACCESS TO PRISON TELEPHONES

Editor’s Note: NCPLS Executive
Director Michael Hamden chaired a
committee that drafted the following
resolution. Members of the committee
included Kay Perry, MI-CURE; Deborah M. Golden, DC Prisoners’ Legal
Services Project; and Laura K. Abel,
Brennan Center for Justice. Substantial editorial assistance and advocacy
were provided by Attorney Margaret
Colgate Love. Hamden presently
serves as co-chair of the American Bar
Association’s Corrections & Sentencing Committee. Copies of the Resolution and accompanying Report will be
provided upon request.

nities for prisoners to maintain and
develop community ties through
reasonably priced phone services,
ABA policy now accords with that
Chicago – On August 11, 2005,
of with the American Correctional
The American Bar Association’s
Association (ACA) (Oct. 1996 ResHouse of Delegates passed by over- olution on Excessive Phone Tarwhelming voice vote, without any
riffs); ACA’s Public Correctional
changes or amendments, a resoluPolicy on Inmate/Juvenile Offender
tion developed by the Corrections
Access to Telephone (adopted Jan.
and Sentencing Committee on cor- 24, 2001); and ACA’s related stanrectional telephone services. The
dards (Standards for Adult Correcresolution is as follows:
tional Institutions (3rd ed.); Standards for Adult Local Detention
AMERICAN BAR
Facilities (3rd ed.); Standards for
ASSOCIATION
Adult Community Residential
Facilities (4th ed.); Standards for
RESOLVED, that the American
Adult Correctional Boot Camp
Bar Association encourages fedPrograms (1st ed.); Standards for
eral, state, territorial and local
Juvenile Community Residential
governments, consistent with sound Facilities (3rd ed.); Standards for
correctional management, law
Juvenile Detention Facilities (3rd
enforcement and national security
ed.); Standards for Juvenile Corprinciples, to afford prison and jail rectional Boot Camp Programs (1st
inmates reasonable opportunity to
ed.); Standards for Juvenile Trainmaintain telephonic communicaing Schools (3rd ed.); Standards for
tion with the free community, and
Small Juvenile Detention Facilities
to offer telephone services in the
(1st ed.); and Small Jail Facilities
correctional setting with an appro(1st ed.)). See also, the National
priate range of options at the lowest Sheriffs’ Association Resolution of
possible rates.
June 14, 1995; and USDOJ-BOP,
*****
Program Statement 5264.06, TeleEncouraging legislators and correc- phone Regulations for Inmates
tional officials to expand opportu(Jan. 31, 2002).

Volume V, Issue 3, September 2005

NCPLS ACCESS

Page 3

GENERAL ASSEMBLY RESTRUCTURES
DELIVERY OF LEGAL SERVICES TO PRISONERS
As reported in the June edition of
ACCESS, the N.C. General Assembly
has been reconsidering the way
that legal services are delivered to
North Carolina prisoners. As our
readers may recall, legislation was
introduced that proposed
to eliminate funding for
NCPLS, opting to allow the
Office of Indigent Defense
Services (IDS) to provide
legal services through
other, unspecified means.
For over 16 years, NCPLS
has provided legal services
to North Carolina prisoners
under the terms of a
contract with the North
Carolina Department of
Correction (DOC). Mechanisms built into the contract to ensure that NCPLS
advocates could exercise
independent professional
judgement on behalf of their clients
were reviewed and approved by the
federal courts. Since the contract
was approved, no court has found
that any North Carolina prisoner
has been deprived of access to the
courts.
Neither NCPLS nor any agency of
state government sought to change
the contractual relationship between DOC and NCPLS. IDS took
no position on the legislation, but
NCPLS, DOC and the Department
of Justice actively opposed the
change.
Supported by the reports of independent attorneys and accountants
who audited NCPLS earlier this
year, members of the Board and

staff worked hard to inform legislators that the program has functioned effectively and efficiently,
delivering high quality legal services to our clients in a manner that
serves the public interest.

The General Assembly of North
Carolina enacts:
SECTION 14.9.(a) G.S. 7A-498.3
reads as rewritten:
§7A-498.3. Responsibilities of Office of Indigent
Defense Services.
(a) The Office of Indigent
Defense Services shall
be responsible for establishing, supervising, and
maintaining a system for
providing legal representation and related services in
the following cases:

Those efforts met with substantial
success when the original legislative proposal was abandoned in
favor of a bill that requires IDS to
contract with NCPLS for two years
and to conduct a two-year study of
the program. That legislation was
passed by the General Assembly on
August 5 and was signed into law
by the Governor the following day.
The relevant portion of the bill is
reproduced below.
TRANSFER RESPONSIBILITY
FOR PROVIDING LEGAL
ASSISTANCE TO INMATES
FROM THE DEPARTMENT OF
CORRECTION TO THE OFFICE
OF INDIGENT DEFENSE SERVICES

(1) Cases in which an
indigent person is subject
to a deprivation of liberty
or other constitutionally
protected interest and is
entitled by law to legal
representation;
(2) Cases in which an indigent
person is entitled to legal representation under G.S. 7A-451 and
G.S. 7A-451.1; and
(2a) Cases in which the State is
legally obligated to provide legal
assistance and access to the
courts to inmates in the custody
of the Department of Correction;
and
(3) Any other cases in which the
Office of Indigent Defense
Services is designated by statute
as responsible for providing legal
representation.
(Continued on Page 4)

NCPLS ACCESS

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Volume V, Issue 3, September 2005

DELIVERY OF LEGAL SERVICES TO PRISONERS
(CONTINUED)

(Continued from Page 3)

(b) The Office of Indigent Defense
Services shall develop policies and
procedures for determining indigency in cases subject to this
Article, and those policies shall
be applied uniformly throughout
the State. Except in cases under
subdivision (2a) of subsection
(a) of this section, the court shall
determine in each case whether a
person is indigent and entitled to
legal representation, and counsel
shall be appointed as provided in
G.S. 7A-452.
(c) In all cases subject to this
Article, appointment of counsel,
determination of compensation,
appointment of experts, and use of
funds for experts and other services
related to legal representation shall
be in accordance with rules and
procedures adopted by the Office of
Indigent Defense Services.
(d) The Office of Indigent Defense
Services shall allocate and disburse
funds appropriated for legal representation and related services in
cases subject to this Article pursuant to rules and procedures established by the Office.
SECTION 14.9.(b) Effective October 1, 2005, the State’s responsibility for providing inmates in the
custody of the Department of Correction with legal assistance and
access to the courts shall be administered by the Office of Indigent
Defense Services. The existing
contract between the Department of
Correction and Prisoner Legal Ser-

vices, Inc., shall not be extended or
renewed beyond that date.
The Director of the Office of
Indigent Defense Services shall
contract with Prisoner Legal
Services, Inc., to provide legal
services and access to the courts for
inmates for a period of two years,
from October 1, 2005, through
September 30, 2007.
During this time, the Director of
Indigent Defense Services shall
evaluate the services provided by
Prisoner Legal Services, Inc. The
Office of Indigent Defense Services
shall provide an interim report of
its evaluation to the Chairs of the
Senate and House of Representatives Appropriations Committees
and Chairs of the Senate and House
of Representatives Appropriations
Subcommittees on Justice and
Public Safety by May 1, 2006, and
a final report of its evaluation by
May 1, 2007. The interim report
shall describe the evaluation process and criteria, the status of the
evaluation, and any preliminary
findings.
SECTION 14.9.(c) The sum of one
million eight hundred eighty-three
thousand eight hundred sixty-five
dollars ($1,883,865) for the 20052006 fiscal year and the sum of two
million five hundred eleven thousand eight hundred twenty dollars
($2,511,820) for the 2006-2007
fiscal year shall be transferred from
the Department of Correction to the
Office of Indigent Defense Services
to implement this section.

SECTION 14.9.(d) Subsections
(a) and (b) of this section become
effective October 1, 2005. The
remainder of this section becomes
effective July 1, 2005.
IMPACT OF THE LEGISLATION
Shortly after the original legislation was passed by the Senate in
May, NCPLS invited IDS representatives into the office to discuss
the contingency that the General
Assembly might adopt legislation
that affected the delivery of legal
services to prisoners. On June 2,
IDS Executive Director Malcolm
Ray “Tye” Hunter and Assistant
Director Danielle M. Carmen
visited NCPLS, reviewed program
operations, and spoke with the
NCPLS Executive Director and
Office Administrator regarding the
proposed change. Speaking of the
possibility that IDS might be delegated the responsibility for administering the contract to deliver legal
services to prisoners, Mr. Hunter
provided welcome reassurance by
stating his commitment to provide
services of at least the same quality,
and at least to the same extent as
those services are presently being
provided.
How that commitment will be met
is a matter that will become clear
as negotiations between IDS and
NCPLS unfold. Talks will begin
soon and are expected to conclude
no later than September 30. Final
details will be reported in the next
edition of ACCESS.

Volume V, Issue 3, September 2005

NCPLS ACCESS

Page 5

UPDATE ON BLAKELY’S RETROACTIVE APPLICATION
By: Lauren Brennan, NCPLS Summer Intern

Over the last year, NCPLS has followed the implications of Blakely v.
Washington, 124 S.Ct. 2531 (2004),
on North Carolina prisoners.
Decided June 24, 2004, Blakely
held that the statutory maximum
sentence a judge may impose must
be based on “facts reflected in the
jury verdict or admitted by the
defendant,” and not based on additional fact-finding by a judge. Id.
at 2537. Blakely also clarified the
definition of “statutory maximum,”
referenced in Apprendi v. New
Jersey 530 U.S. 466 (2000), as the
maximum sentence a defendant
may receive in the presumptive
range, not the maximum sentence
for the offense.
One of the concerns of North
Carolina inmates and our office is
whether the Blakely decision will
be applied retroactively. The short
answer to the question is: sometimes yes and sometimes no. This
article will briefly explain in which
situations the Blakely rule may be
applied retroactively. In addition,
the article will explore how the
Blakely decision may affect North
Carolina sentencing law going
forward.
Criminal appeals fall into one of
two categories – direct review, or
collateral review. Direct reviews
of criminal convictions are reviews
of judgments that have not yet
become final (for example, an
appeal from a jury trial to the North
Carolina Court of Appeals involves
a judgment that is not yet final). A
judgment becomes final when the
time for seeking direct review has
expired or when a conviction has

been affirmed on appeal. Morrison
v. McDonald, 113 N.C. 327 (1893).
In contrast, collateral review is a
review sought (for instance,
through a motion for appropriate
relief) after a criminal judgment has become final. N.C. Gen.
Stat. 15A-1419. This is an important distinction because, generally,
courts have held that Blakely is
retroactive on direct review, but
not on collateral review.

in the aggravated range was done
in violation of the Sixth Amendment to the United States Constitution.” Id., 166 N.C. App. at 117.
The court granted the defendant’s
motion and ordered that the trial
court resentence the defendant consistent with the Blakely decision.
Id. at 118.

Direct Review
In Griffith v. Kentucky, 479 U.S.
314 (1987), the court stated that
“failure to apply a newly
declared constitutional rule to
criminal cases pending on direct
review violates basic norms of
constitutional adjudication.” 479
U.S. at 322. Three years later, in
Teague v. Lane, 489 U.S. 288
(1989), the U.S. Supreme Court
affirmed that principle. Accordingly, the new rule established by
Blakely is properly applied retroactively to all cases pending on
direct appeal when Blakely was
decided.
The North Carolina Court of
Appeals applied the Blakely rule
retroactively in State v. Speight, 166 N.C. App. 106 (N.C.
Ct. App., 2004). In Speight the
defendant’s case was argued
March 30, 2004, (before the
Blakely decision was announced)
and the Speight opinion was
filed September 7, 2004 (after
Blakely). In Speight, the defendant’s motion for appropriate
relief contended that “the trial
court’s imposition of a sentence

(Continued on Page 6)

NCPLS ACCESS

Page 6

BLAKELY

Volume V, Issue 3, September 2005

(CONTINUED)

(Continued from Page 5)

Collateral Review
The U.S. Supreme Court has the
option to specifically state in an
opinion whether a new rule shall be
applied retroactively to cases on
collateral review,
but seldom does.
The court did not
speak to the issue of
retroactivity in
Blakely. (United
States v. Marshall
117 Fed. Appx. 269,
270 (4th Cir. 2004);
Morgan v. North
Carolina Department of Correction,
110 Fed. Appx. 310
(4th Cir. 2004);
Carmona v. United
States, 390 F.3d
200, 202 (2d Cir.
2004); In Re Olopade, 403 F.3d 159,
162 (3d Cir. 2005);
In re Elwood, 408
F.3d 211, 211 (5th
Cir. 2005); Simpson
v. United States, 376 F.3d 679, 681
(7th Cir. 2004); Cooper-Smith v.
Palmateer, 397 F.3d 1236, 1245
(9th Cir. 2005); Leonard v. United
States, 383 F.3d 1146, 1148 (10th
Cir. 2004); In re Hinton, 125 Fed.
Appx. 317, 317 (D.C. Cir. 2005)).

489 U.S. 288 (1989). According to
Teague, “the costs imposed upon
the State[s] by [the] retroactive
application of new rules of constitutional law on habeas corpus . . .
generally far outweigh the benefits

Hlakelv
v.
AQuestion 01 Retroactivitv

When there is no clear statement by
the Supreme Court on the issue, to
determine whether the new rule
created by the Supreme Court
should be applied retroactively to
cases on collateral review, the
lower courts must conduct the analysis announced in Teague v. Lane,

of this application.” Id. at 310
(internal citation omitted). Teague
established that unless new rules
fall into one of two narrow exceptions, they should not be applied
retroactively to cases on collateral
review. Id. at 310. The first exception arises when the new rule is
substantive. The second exception
arises when the Court announces
a “watershed rule” of criminal
procedure. North Carolina law on
retroactivity follows the Teague
doctrine.
“A rule is substantive rather than
procedural if it alters the range

of conduct or the class of persons
that the law punishes.” Schriro v.
Summerlin, 124 S.Ct. 2519, 2523
(2004). Blakely, however, does
not affect the range of conduct or
a class of persons; it merely alters
the length of the
sentence a judge
has the authority to
impose for a particular crime.
All of the highest
state appellate
courts and all federal courts that
have examined the
issue of Blakely’s
retroactivity on collateral review have
concluded that the
Blakely rule is not
substantive. (Lilly
v. United States,
342 F. Supp. 2d
532, (W.D. Va.
2004); United
States v. Price, 400
F.3d 844, 845-846
(10th Cir. 2005); United States v.
Ramirez, 127 Fed. Appx. 414, 417
(10th Cir. 2005)). The next question under the Teague analysis
is whether Blakely announced a
“watershed rule.”
For a procedural rule to be applied
retroactively it must be a “watershed rule” of criminal procedure.
A “watershed rule” is one that
raises questions about “the fundamental fairness and accuracy of
the criminal proceeding.” Schriro,
(Continued on Page 7)

Volume V, Issue 3, September 2005

NCPLS ACCESS

Page 7

BLAKELY

(Continued from Page 6)

124 S.Ct. 2524. The decision
reached in Blakely does not affect
the guilt phase of a criminal trial,
but rather, the sentencing phase.
For this reason, courts have held
that Blakely did not
announce a “watershed rule” of criminal
procedure. (Castro v.
Keith, 2005 U.S. App.
LEXIS 9914 (10th
Cir. 2005); Orchard
v. United States, 332
F. Supp. 2d 275, 277
(Maine 2004)). This
means that Blakely does
not fall into either of the
categories of exceptions
established by Teague,
and therefore, will not
be applied retroactively
to cases on collateral
review.
The Schriro v. Summerlin Effect
In Schriro v. Summerlin, ___ U.S.
___, 124 S.Ct. 2519 (2004), the
U.S. Supreme Court addressed the
issue of whether the rule created
by Ring v. Arizona, 536 U.S. 584
(2004), should be applied retroactively. Ring extended Apprendi v.
New Jersey, 530 U.S. 466 (2001),
to aggravtating factors in capital
murder cases, holding that facts
increasing a defendant’s sentence
from life imprisonment to death
must be proved to a jury rather than
decided by a judge.
In Schriro, Defendant Summerlin was convicted of first degree
murder in Arizona and sentenced

(CONTINUED)
to death by a judge. Summerlin
exhausted all direct appeals before
the decision in Ring. Summerlin
appealed his conviction on collateral review, raising the argument

Ring decisions, coupled with the
rulings of lower courts in almost all
circuits (discussed above), strongly
suggest that Blakely will not be
applied retroactively.
The Future of
Sentencing Law in
North Carolina

that Ring should apply retroactively. The Court ruled that Ring
does not apply retroactively to
cases which had become final on
direct review before the Ring decision was announced.
The situation in Schriro is analogous to Blakely because both cases
are extensions of Apprendi, which
created a new procedural rule. The
U.S. Supreme Court ruled in
Schriro that Ring did not create a
watershed rule of criminal procedure, and therefore, the facts of
those cases did not fall into the
limited exceptions that warrant retroactive application of the rule first
announced in Apprendi and clarified in Blakely. The Schriro and

Naturally, the next
question is: “Where
does Blakely leave
North Carolina’s
Structured Sentencing statutes?” The
General Assembly
of North Carolina
passed a revision to
the sentencing law
in the 2005 Session
to conform with
recent Supreme
Court sentencing
jurisprudence. The
revised statutes elevate the burden
of proof for aggravating factors
from “a preponderance of the
evidence,” to, evidence “beyond
a reasonable doubt.” N.C. Gen.
Stat. 15A-1340.16(a). Also, there
are provisions which require that,
unless the defendant admits them,
aggravating factors must be determined by a jury. N.C. Gen. Stat.
15A-1340.16(a1)-(a6). The only
sentence enhancement which still
does not need to be proved to a jury
is prior record level points. The
full text of the amended versions of
the statutes appears below.

(Continued on Page 8)

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NCPLS ACCESS

Volume V, Issue 3, September 2005

BLAKELY

(Continued from Page 7)

It is important to note that under
the legislation, while aggravating
factors must be proven beyond
a reasonable doubt or admitted,
they generally do not have to be
alleged in the indictment. This is
supported by case law. In State
v. Allen, 2005
N.C. LEXIS 695
(N.C., 2005), the
court overturned
a prior decision
in State v. Lucas,
353 N.C. 568
(N.C., 2001),
and concluded
“that aggravating
factors need not
be alleged in an
indictment.”
According to
revised statute
N.C. Gen. Stat.
15A-1340.14,
Section 3, the
only aggravating factor that
must be alleged in the indictment
is, “any other aggravating factor
reasonably related to the purposes
of sentencing.” The new statute
does provide for notice of aggravating factors to be served on the
defendant 30 days before trial or
the entry of a guilty or no contest
plea. The new sentencing laws will
place a greater burden on the state
to prove aggravating factors, and in
turn, will help protect defendants’
constitutional right to have their
entire case tried to a jury.

(CONTINUED)
The revised statutes, which incorporate the teachings of Blakely into
the law of North Carolina, only
apply to defendants charged after
the date the statute took effect,
June 30, 2005.

not final on June 24, 2004, the date
on which the Blakely decision was
announced. Unfortunately, neither
the statutes nor case law will support relief for those inmates whose
judgments were final prior to the
Blakely decision.
To summarize,
generally a
North Carolina
inmate may
be entitled to
relief if:
• A sentence
in the aggravated range
was imposed;
• The judgment was not
final on direct
appeal prior to
June 24, 2004;

“Prosecutions for offenses committed before the effective date
of this act are not abated or
affected by this act, and the
statutes that would be applicable
but for this act remain applicable
to those prosecutions.”
N.C. Gen. Stat. 15A-1022.1, Section 5.
Defendants not sentenced consistently with Blakely may be entitled
to relief if their convictions were

• The defendant did not
stipulate or agree to an aggravating
factor or a sentence in the aggravated range in a plea bargain and
was sentenced after June 24, 2004.
Whether a particular defendant is
entitled to relief under Blakely is
best determined in consultation
with a lawyer. Please write to
NCPLS if you have questions
regarding your conviction or the
way Blakely might apply in your
case.

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Volume V, Issue 3, September 2005

Page 9

NCPLS HELPS PRISONERS
TO GET APPOINTED COUNSEL
ON CHILD SUPPORT CIVIL
CONTEMPT CHARGES
By Kady McDonald, Certified Legal Assistant, and
Michele R. Luecking-Sunman, Staff Attorney

In early 2005, NCPLS received
numerous complaints from inmates
being housed in the Brunswick
County Jail on civil contempt
charges for failure to pay child
support. Although NCPLS does
not normally accept child support cases, due to the number of
complaints we received in a short
period of time, our office decided
to investigate the matter.
The inmates were being held in jail
for several months at a time, with
no access to counsel, and no money
to pay child support, which was
required as a condition of release
from jail. Usually, after an initial
hearing, the inmate would have to
file a motion and wait 60-90 days
to appear before the judge again.
Without money to hire an attorney,
our clients did not know what to
file or how to get back in front of
the judge, or what to say to the
judge when they did return to court.
NCPLS contacted Indigent Defense
Services and the Institute of Government, whose staff were aware
of, and concerned about the problem. North Carolina case law

requires that specific findings be
made about an individual’s present
ability to pay child support before
a contempt order is entered. Glesner v. Dembrosky, 73 N.C. App.
594, 327 S.E. 2d 60 (1985), Plott v.
Plott, 74 N.C. App. 82, 327 S.E. 2d
273 (1985). In our clients’ cases,
it did not appear that such findings
were ever made. Instead, the presiding judge generally checked a
box that stated the defendants were
“willfully choosing not to pay.” In
case after case, our clients assured
us that there was no money available to pay the “purge” amount.
NCPLS spoke with a Brunswick
County attorney who prosecutes
child support cases. Our advocate explained concerns about the
lack of procedural protections in
such cases, as well as the failure to
provide defendants with access to
counsel. The attorney advised that
she was not aware of those problems, but shortly after the conversation, several of our clients were
appointed counsel.
The North Carolina Supreme Court
stated in McBride v. McBride, 431

S.E. 2d 14 (1993), that an indigent
person who faces the prospect of
incarceration for non-payment of
child support must have counsel
appointed to represent him at the
hearing. According to the McBride
Court, at the outset of a civil
contempt proceeding for nonsupport, the trial court should assess
the likelihood that the defendant
may be incarcerated. If the court
determines that the defendant may
be incarcerated as a result of the
proceeding, the court should then
inquire into the defendant’s desire
to be represented by counsel and
his ability to pay for legal representation. When a defendant in such
a case wants to be represented by
counsel but cannot afford to hire
an attorney, the court must appoint
counsel to represent the defendant.
Id. at 19.
If you are facing civil contempt
charges for failure to pay child
support, you should request that an
attorney be appointed to your case.
You can either do this in person at
the hearing or you can write the
district court judge and request an
attorney.

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NCPLS ACCESS

Volume V, Issue 3, September 2005

EARNING FREEDOM
By Michael G. Santos
April 2, 2004

Editor’s Note: The following

article, “Earning Freedom,” follows a series of articles republished
in ACCESS by permission of the
author, Inmate Michael G. Santos.
Mr. Santos was convicted of drug
distribution and sentenced to serve
45 years in Federal prison. He
is scheduled for release in 2013.
While in prison he has earned
Bachelors and Masters Degrees.
He has also written three books
available for review and purchase
on his web site: www.Michael
Santos.net. Although Mr. Santos
does not have direct access to the
internet, he can be reached by
email at: info@michaelsantos.net.
Mr. Santos can also be reached at
the following address: Michael G.
Santos (Reg. No. 16377-004), USP
Lompoc, Satellite Camp, 3705 W.
Farm Road, Lompoc, CA 93436.
_______________
In late 1985 I began making a
series of bad decisions. I was 21
and working in our family business, but I lacked the good character to act responsibly with the trust
my parents had placed in me. At
that time I felt the influence of city
lights attracting me and I was in
too much of a hurry to accelerate
my life. Rather than attend college
or focus on the family business as
my parents expected of me and as
a mature young man would have
done, I joined a group of friends in
a scheme to reap seemingly easy
and endless illicit profits by distributing cocaine.
Our group did not carry weapons
or use violence, and none of us had

served time in confinement before.
Yet when the law came down on
us in 1987, as it inevitably would,
it held us culpable for the entire
scourge delivered upon society as
a consequence of the cocaine we
distributed. I was 23 then, and the
judge in my case concluded that 45
years was the appropriate sentence
for me.
As children, my sisters and I
attended St. Johns, a Catholic
elementary school in Seattle, but
our family was not particularly
religious. By the time I was in the
fifth grade we moved to Lake
Forest Park, a suburb community
in North Seattle. Rather than continuing our education in Catholic
schools, my parents enrolled my
sisters and me in the local school
system. That move pretty much
ended my involvement in the
church.
While I languished in the county
jail waiting for my judicial proceedings to play themselves out, I
picked up the Bible. Those were
weak moments in my life. I had no
idea what was to become of me.
The possibility of serving multiple
decades in prison frightened me,
and during those lonely nights in
my cell when suicide seemed an
easy escape, the word of God gave
me strength. I read the Bible from
cover to cover, drawing fortitude
from both the Old and New Testaments.
Those Biblical readings helped me
realize that God has blessed me
with the power to choose how I

was going to respond to the complexities of my life. I realized that
although I was staring down the
long end of a 45-year sentence, I
still was a young man and my life
remained in God’s hands. Opportunities would come for me to use
my time in prison to grow. If I succeeded, I hoped to emerge from the
depths better able to contribute to
the world and the lives of others.
I remember struggling with the
concepts of free will versus determinism. Somehow I needed to
make sense of the twists and turns
my life had taken. I had a privileged adolescence with loving
parents and two sisters, but for 18
months I strayed into the clutches
of vice much like the Old Testament story of the prodigal son. The
justice department responded with
this lengthy sentence that threatened my sanity. In order to cope, I
needed to believe that it was God’s
will for me to endure the challenges of confinement. I embraced
the concept that triumphs through
the adversity of my life would inspire others and thus bring meaning
to my life. I hoped to reconcile
with society. The choice was up to
me. Prayer and faith helped me
realize that instead of languishing
through a lengthy prison sentence, I
could redeem my crimes through
work and prove myself worthy to
continue receiving God’s gift of
life.
In those early years of my confinement the United States Congress
had extended funding for prisoners
(Continued on Page 11)

Volume V, Issue 3, September 2005

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Page 11

EARNING FREEDOM
(Continued from Page 11)

to study. I enrolled in undergraduate courses at Ohio University
through correspondence and also in
courses at Atlanta’ s Mercer University. In high school I had been a
mediocre student, failing to take
advantage of the educational
opportunities available through the
excellent public
school system of my
area. During those
long nights in prison,
reflecting on my wayward youth while I
lay in the darkness of
the reinforced concrete shell to which
I had been assigned,
staring up at the steel
plate supporting the
stranger in the bed
above me, I realized
that it was my lack of
discipline and weak
moral compass that
led to the bad decisions I had made. I knew that
the predicament through which I
suffered was a direct consequence
of my own actions. I committed
myself to making better decisions
and took every advantage to make
the most of all learning opportunities available to me.
My studies helped me in many
ways. Not only was I educating myself, developing skills and
credentials that would assist my
efforts to overcome the obstacles
I expected to encounter upon my
release, university studies gave me
clearly identifiable goals to work
toward. My time was broken up by

(CONTINUED)

90-day quarters and I focused on
completing my assignments so that
I could move closer to receiving
the academic credits necessary to
earn a degree. By concentrating on
work that had meaning to me, that
I was confident had significance

men inside these communities of
felons serve sentences of multiple
decades. Some have no hope of a
better life and know that as marginalized citizens they will face
even higher hurdles to function
in society upon release than they
knew prior to confinement. Without
incentives to guide
their behavior, many
prisoners serve their
time in a manner
that compounds
their problems.
They participate in
drug rackets. They
gamble. They form
gangs of extortion
and intimidation.
For many, it is as if
they live in hell and,
without hope for
a better life, each
competes to live as
the chief demon.

to my life, I had valid reasons to
stay away from any activities or
behavior that could threaten or
delay my progress. While navigating my way through the minefields
of prison living, such reasons were
necessary to maintain direction.

In 1992 Mercer University awarded
my undergraduate degree. Around
that same time, the U.S. Congress
passed new legislation rendering
people in prison ineligible for Pell
Grants that would pay for university studies. Some influential
citizens, apparently, were upset
to learn that a portion of their tax
dollars were being used to pay for
schooling that would educate prisoners. I considered myself blessed
to have earned my undergraduate
degree before Congress had terminated funding opportunities.

Without meaningful goals, I have
found, prisoners frequently find
themselves distracted by the types
of vice that exist outside of these
closed communities. Indeed,
being separated from family and
friends, frequently lacking in selfdiscipline, prisoners may be more
susceptible to vice than the broader
population. Like me, many of the

(Continued on Page 12)

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NCPLS ACCESS

Volume V, Issue 3, September 2005

EARNING FREEDOM
(Continued from Page 11)

My academic studies represented
an integral and essential aspect of
my adjustment. I had begun serving my sentence at the United
States Penitentiary in Atlanta, a
maximum-security facility that the
New York Times had labeled the
most violent prison in America.
Despite being young and inexperienced, I managed to serve the six
years I spent there without receiving a single disciplinary infraction.
The primary reason was my laserlike focus on achieving credentials
that I expected would help me
overcome the stigma of my criminal convictions; earning that degree
was crucial to my sense of self. I
deliberately avoided areas, activities, and people that could disrupt
my progress.
In the fall of 1992 I began studying
independently at Hofstra University. I wrote to the dean of that
school expressing my commitment
to advancing my academic standing
and asking for permission to enroll
in a program that would lead me to
a graduate degree. After a lengthy
correspondence, the faculty agreed
to waive its residency requirement
and admit me. Although federal
funding was not available, my parents and my sisters all contributed
to help me meet the tuition obligations.
As a long-term prisoner, I wanted
to study aspects of the federal
prison system and the people it
holds. My advisory faculty at
Hofstra, therefore, enabled me
to structure an interdisciplinary

(CONTINUED)

course of study with concentrations in sociology and cultural
anthropology. I would become an
ethnographer, writing about foreign
culture while living as a participating member. The subculture I
studied, of course, was the growing American prison population.
Hofstra awarded my master of arts
degree in the spring of 1995.
Our nation now confines more than
2.1 million people at an annual cost
to taxpayers of over 40-billion dollars. Each year more than 600,000
people are released from places of
confinement to resume their lives
in their respective communities.
Sadly, during their confinement
many of those released felons
adjusted in ways that prepared
them to live in prison while simultaneously conditioning them to
fail in society. With recidivism
rates that exceed 60 percent, it is
clear that legislators and prison
administrators ought to consider
another approach. After all, what
is the goal of imprisonment? If it
is to warehouse human beings then
prisons succeed brilliantly. On the
other hand, if prisons are supposed
to correct behavior and thinking
patterns, then our recidivism rates
suggest that our system of corrections is an abject failure. I suggest
a reform. Providing opportunities
for felons to develop skills will
enable them to contribute as lawabiding citizens upon their release.
Of course, I am not a prison
administrator. I am a prisoner. As
such, I have never managed one

of the enormous budgets that fund
these caged cities. Nor have I had
to contend with the tough-on-crime
politics that result in myopic policies like the elimination of educational funding. Obviously, issues
complicating prison management
exist that I have no knowledge
about. Still, I have lived virtually
my entire adult life inside these
communities of men that society
has condemned. My experiences
and observations have spawned
ideas that legislators and administrators might consider implementing to improve this so-called
system of corrections.
One fundamental problem with
the prison system, as I have experienced it, is that administrators
manage it with the threat of punishment rather than the promise of
incentives. It is a system that contradicts the principles of American
life. Indeed, there is no limit to the
quantity of actions that can exacerbate a prisoner’s problems; every
disciplinary infraction he receives
will raise the prisoner’s custody
scoring, exposing him to sanctions
and higher-security living. Administrators may find such punishments necessary for management
reasons. Yet they should consider
balancing those punishments with
incentives that inspire the contributing, law-abiding behavior and
values that society expects from its
citizens.

(Continued on Page 13)

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NCPLS ACCESS

Page 13

EARNING FREEDOM
(Continued from Page 12)

Unfortunately, as correctional policies exist today, there is no way for
a prisoner to enhance his classification status. The individual who
disciplines himself and works to
develop skills that will contribute
to society fares no better while in
prison than the individual who
passes all of his time watching
music videos or playing dominoes.
Only behavior that violates disciplinary codes constitutes a change
in formal scoring, and, of course,
that change will be for the worse.
Under the current system, if an
individual wants his scoring to
change for the better, he must wait
for calendar pages to turn. That is
a flaw.
Many of the people who live in
prison lack personal backgrounds
or values that prompt introspection.
These prisons are filled with men
who have lived by the codes of
immediate gratification for their
entire lives. They have never
placed much value on education or
acquiring job skills. They are not
well suited to contemplate steps
they can take to prepare for the
challenges that will follow confinement. As a consequence, they
squander their time in prison. After
encountering obstacles that are insurmountable to them upon release,
many revert to behavior and activities that returns them to these penitentiary societies. It is a vicious
circle, one that our enlightened
society ought to make efforts to
stop.

(CONTINUED)

Rather than managing prisons with
the constant threat of punishment,
administrators ought to lead these
caged communities by offering the
men inside opportunities to earn
graduated levels of freedom. Instead of following the patterns of a
communistic society, where every
prisoner is treated the same, administrators ought to prepare prisoners
for society by following the same
principles that have made America
great. In other words, just as they
punish those who have been convicted of violating prison rules,
administrators ought to offer an
objective system through which
prisoners can distinguish themselves formally in a positive way.
They should prepare prisoners for
liberty by offering opportunities for
them to earn it.
Few people in prison take advantage of opportunities to develop
skills in prisons because they cannot identify the long-term value of
such personal investments. As I

wrote above, the men are serving
multiple decades and they notice
that the man who earns a graduate
degree or develops a marketable
skill receives the same consideration as the prisoner who passes
years slamming dominoes and
cards down on the table. But if
administrators were to authorize
programs through which prisoners
could earn their way into preferred
housing, earn better access to
family visits, or earn opportunities
to advance their education level or
trade skills, they would inspire
more prisoners to use their time
wisely.
Our nation’s leaders speak of a
compassionate conservatism. That
compassion has yet to find its way
into these societies of captives.
My spiritual readings suggest
that Christ taught—among other
things—forgiveness. Leaders of
our criminal justice system, on
the other hand, eschew Christian
concepts of forgiveness, redemption, or atonement. A thirst for
vengeance demands that those convicted of breaking America’s laws
pay with years of their lives. Still,
well over 90 percent of the people
who serve time eventually return to
their communities. Perhaps legislators and administrators ought to
think more about programs like the
ones I suggest above, programs that
will introduce people in prison to
pragmatic values, and opportunities for them to earn their freedom
through merit rather than the flipping of calendar pages.

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Volume V, Issue 3, September 2005

NCPLS CONTRIBUTES TO
NEW LAW SCHOOL CASEBOOK
A team of NCPLS attorneys contributed to one of the new publications being offered by Westlaw/
Thomson for use in the law school
classroom. Lynn S. Branham and
Michael S. Hamden, “Cases and
Materials on the Law and Policy
of Sentencing and Corrections (7th
ed. 2005). Published as part of its
American Casebook Series, the
book includes coverage of important court decisions that govern this
area of law, as well as materials
that reflect the practical challenges
of effectively representing criminal
defendants and prisoners. The
casebook serves both as an outstanding instructional tool for legal
educators and students, and as a
reliable and authoritative reference
work for practitioners.
A summa cum laude graduate of
the University of Illinois, Lynn
Branham received her law degree
from the University of Chicago,
where she was a member of the
law review. An expert in sentencing and corrections law and
policy, Professor Branham is a well
respected author who trains federal
judges on the Prison Litigation
Reform Act. Professor Branham

has spoken across the country, and
testified before Congress, about the
need for comprehensive community-corrections laws and effective
structured-sentencing mechanisms.
From 1990 until 1998, she served
as the American Bar Association’s
representative on the Commission
on Accreditation for Corrections,
and in 1999, Professor Branham
was presented the American Correctional Association’s Walter
Dunbar Award for her work to
improve the correctional accreditation process. She was reappointed
to a two-year term on the Commission in 2000. Ms. Branham presently serves as Associate Dean for
the Thomas M. Cooley School of

Law in Grand Rapids, Michigan.
Commenting on the new publication, NCPLS Executive Director Michael Hamden expressed
appreciation to the NCPLS Board
of Directors and the staff of the
program for enabling him to undertake the project. “The successful
completion of this work is attributable to the experience, scholarship,
and diligence of a team of NCPLS
attorneys: Hoang Lam, Ken Butler,
Janine Zanin, Beth McNeill, Lisa
Chun, Michele Luecking-Sunman,
Richard E. Giroux, and Betsy
ColemanGray. The contributions
of these bright, talented and committed lawyers are deeply appreciated.”

WRITING TO NCPLS
NCPLS intake staff processes over
500 letters per week from inmates
across the state. You can help us
give your letter timely attention by
ALWAYS doing the following:
1. Put your OPUS number on both
your letter and envelope.

2. Print clearly. Block letters are
usually best. Please do not use
small or fancy handwriting (if
your handwriting is hard to read,
your letter may find its way to the
bottom of the pile).
3. If at all possible, write in ink.

4. If you are writing to complain
about a condition of confinement,
an injury, or a problem with the
medical unit, start the grievance
process before you write to us.

(Continued on Page 15)

Volume V, Issue 3, September 2005

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Page 15

LITIGATION LEADS TO NEW DOC POLICY
RECOGNIZING LEGALLY CHANGED NAMES
By Michele R. Luecking-Sunman, Staff Attorney

For many years, the DOC refused
to recognize the names of prisoners
that had been legally changed after
the date the prisoner was first
admitted into DOC custody. The
situation arose most commonly
when prisoners changed their
names in connection with a religious conversion, but it was also
a problem for female prisoners
whose marital status changed.
NCPLS unsuccessfully litigated
several cases challenging DOC’s
position, specifically with regard to
legally recognized name changes
associated with religious conversion. In all of these cases, DOC
successfully argued that it is important to institutional order and security to be able to correctly identify
prisoners, and that too great an
administrative burden would result
from a legal requirement that
legally changed names be used as
the means to identify prisoners.
Recently, NCPLS was appointed
by the court to represent a prisoner
who sought to have his legally

changed name referenced on his
prison identification card. Dawed
Al-Amin Shabazz v. Michael York,
et al., Case No. 1:02CV00350
(MDNC 2005). The plaintiff, as
well as many others we have heard
from, found it difficult to access
prison services using his new
religious name. Though he followed the correct legal procedures
to officially change his name, DOC
policy stated that a prisoner must
use the name under which he was
originally committed to DOC, even
if his name was legally changed
prior to a readmission to DOC.
Therefore, when getting mail, signing up for sick call, requesting trust
fund disbursements, and to access
many other programs or services,
or to participate in various activities, the prisoner would have to
provide his former name – one that
he found offensive following his
religious conversion.
In an effort to resolve the Shabazz
litigation and several other complaints, DOC has changed the

policy regarding name changes.
Now, DOC regulations provide
that prisoners who legally change
their names may have their new,
legal name added directly below
the committed name on their
identification cards. DOC Rules
& Regulations, Chapter F, Section
.2908, Identification Card Procedure, Initial Issue and Reissue
Procedures and Requirements. The
policy applies to prisoners in similar situations so that their ID cards
will have, not only their committed
name, but their legally changed
name, as well.
With the adoption of the new
regulation, it appears that DOC
has made an effort to reconcile
legitimate security interests with
the religious and personal sensibilities of people who are incarcerated. However, important issues
remain to be resolved by the
courts, including the question as to
whether a prisoner has a legal right
to use a religious name to access
correctional programs, services,
and activities.

WRITING TO NCPLS
(Continued from Page 14)

5. Do not send us copies of grievances that have not been submitted
to DOC yet.
6. Do not staple or otherwise
attach the papers that are in the
envelope.

(CONTINUED)

7. If you are writing to request a
specific self-help form or packet,
it is not necessary to provide any
details about your situation. A
simple request for the form/packet
is fine.

8. It is not necessary to cite case
law when you write. We are familiar with prisoner rights law and
stay abreast of new developments.
9. Be patient. We respond to every
letter we receive, most on the same
day we receive it.

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