The North Carolina First Step Act

Published for NC Criminal Law on July 08, 2020.

A new law provides a limited possibility of sentencing and post-conviction relief for certain defendants convicted of drug trafficking.

The law, S.L. 2020-47, is called the North Carolina First Step Act. I wrote about it earlier in the year, here, when it was still under consideration in the General Assembly. At that point we were already getting questions about how North Carolina’s proposed law related to an existing federal law of the same name. (There’s no real connection between the two.)

North Carolina’s enacted law is similar to the version I described back in January. It amends the drug trafficking sentencing provisions in G.S. 90-95(h) by adding new G.S. 90-95(h)(5a). That new subdivision says the judge sentencing a defendant for drug trafficking or conspiracy to commit drug trafficking (which is sentenced the same as drug trafficking itself) may depart from the otherwise mandatory sentencing rules for trafficking if he or she makes a finding that the defendant meets 11 conditions.

Among those conditions are two threshold requirements that substantially limit the law’s applicability. First, the law applies only to defendants being sentenced solely for trafficking or conspiracy to traffic by possession; trafficking by manufacture, delivery, and transport are not eligible. Second, the trafficking must be for possession of an amount within the lowest category of trafficking for the particular controlled substance in question. So, less than 50 pounds of marijuana, less than 200 grams of cocaine, etc.

Several of the other conditions are directed at the defendant’s criminal history. He or she must not have previously been convicted of any felony under G.S. 90-95 (which would include, for example, any prior felony drug possession, sale, or PWISD—not just trafficking). The court must also find that the defendant has not used violence or a credible threat of violence or possessed a firearm or other dangerous weapon in the commission of any other violation of law, and that there is no substantial evidence that the defendant has ever engaged in the sale, transport for purpose of sale, manufacture, or delivery of a controlled substance. Those latter provisions are not expressly limited to things for which the defendant has been convicted, although I suspect prior convictions will be the most likely way of proving commission of a prior disqualifying offense.

Other conditions are directed at the circumstances of the trafficking offense now being sentenced. The defendant must not have used violence or a firearm or other dangerous weapon in the commission of the trafficking offense and must accept responsibility for his conduct. The court must find that the otherwise mandatory sentence would result in substantial injustice, and that it is not necessary for the protection of the public. The defendant must also admit that he or she has a substance abuse disorder and has successfully completed a treatment program approved by the court to address it. I can imagine that it might sometimes be necessary to continue prayer for judgment in an otherwise eligible case to allow a defendant time to complete a court-approved treatment program before sentencing.

A final requirement is that the defendant has, to the best of his or her knowledge, provided all reasonable assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals. That provision is of course very similar to the longstanding provision in G.S. 90-95(h)(5) regarding substantial assistance—with the only difference being that the new law requires only reasonable assistance, not substantial assistance. To the extent that those types of assistance overlap, bear in mind that if the court could find that the defendant provided substantial assistance, it could offer far more relief under the existing substantial assistance law than it can under the new First Step Act—and for more defendants with fewer required findings. If a judge finds substantial assistance for any drug trafficking defendant (regardless of drug quantity or prior criminal history), the sentence can be essentially whatever the judge wants it to be (a shorter active term, probation, a reduced fine, etc.).

Not so under the First Step Act. Assuming the judge can make findings on all 11 conditions listed in the statute, the law permits only a limited form of relief. It operates similarly to our existing law for attempted trafficking, allowing the judge to reduce the otherwise mandatory fine and sentence the defendant in accordance with the ordinary Structured Sentencing grid for his or her class of offense and prior record level. For example, suppose a defendant is convicted of Class G trafficking by possession of less than 200 grams of cocaine. If the judge can make all the required findings under new subdivision (5a), it can disregard the otherwise mandatory 35–51 month sentence and $50,000 fine and instead sentence the defendant like a regular, non-trafficking defendant under the sentencing grid. If the defendant was prior record level II, for example, the sentence could be something like 12-24 months, suspended, with supervised probation and a reduced fine.

Procedurally, the sentencing judge may only make First Step findings after a hearing where the district attorney has an opportunity to present evidence, including evidence from the investigating law enforcement officer, other law enforcement officers, or witnesses with knowledge of the defendant’s conduct at any time prior to sentencing. Ultimately, the judge can impose the reduced sentence regardless of whether the State agrees to it.

The law described above applies prospectively to sentences ordered on or after December 1, 2020, regardless of the date of offense.

The First Step Act also includes a provision reaching back to certain inmates already serving active time for drug trafficking. Defendants serving an active sentence imposed solely for drug trafficking who were not sentenced under the substantial assistance law are authorized to file a motion for appropriate relief to seek a sentence modification as provided in new subdivision (5a). Eligible inmates must file their MAR within 36 months of December 1, 2020; the State must respond within 60 days of the filing; and the court must hold any hearing it deems necessary within 180 days of the filing.

It’s not clear whether the MAR provision incorporates all of the eligibility conditions discussed above for newly imposed sentences. The enacting language describes the MAR as one seeking relief “as enacted in Section 2 of this act,” which is the section in which all 11 conditions are listed. However, it then goes on to set out a shorter list of only four requirements for retroactive relief:

  1. That the MAR was filed within 36 moths of the effective date of the act;
  2. That the inmate has no other felony convictions under G.S. 90-95;
  3. That the inmate was convicted solely for trafficking or conspiracy to traffic by possession; and
  4. That the inmate was convicted for trafficking a drug quantity in the lowest category of trafficking for that substance.

The law then says that if the inmate meets those four requirements, the court shall resentence the defendant in accordance with new subdivision (5a)—which, again, means under the ordinary sentencing grid for the defendant’s offense class and prior record level. It’s interesting that the front-end sentencing provision says the judge may grant relief if the defendant meets all the required conditions, while the MAR provision says the judge shall do it. Does the shall there override the otherwise applicable requirements for the judge to consider whether the ordinary sentence is a “substantial injustice” and “necessary for the protection of the public”? Perhaps the reference back to subdivision (5a) brings all 11 conditions back into play, but it’s not clear. The MAR provision applies only to sentences imposed on or before November 30, 2020. So, going forward, defendants who don’t get First Step relief at sentencing do not get another shot at relief via MAR.

It will be interesting to see how often the First Step Act provisions are used. (And we’ll know, because the law adds new G.S. 90-95(j) requiring the AOC to issue a report on it each year.) Looking at the eligibility conditions, I don’t think many defendants will be eligible for relief at sentencing. Of the 422 drug trafficking convictions entered statewide last year, only a fraction were for trafficking by possession of the lowest quantity category of that substance, and committed by a defendant with no prior felony drug record. And it’s possible that the existing substantial assistance law will continue to have more appeal. We know that judges already use the substantial assistance law at least about 20 percent of the time for drug traffickers, because over 75 of the 422 trafficking defendants sentenced last year got probation. (There are even more who received a shortened active sentence or a reduced fine pursuant to a substantial assistance finding, but those don’t stand out as clearly in the data.)

But even if the law isn’t used very often, it could be an important sign of other changes to come. As the law’s name says, it’s just the first step in what may be a broader plan to amend North Carolina’s sentencing laws.

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