Who’s in Prison in North Carolina?

Published for NC Criminal Law on March 06, 2018.

Who is in North Carolina’s prisons?

I recently read a book called Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform by John Pfaff, a professor at Fordham University School of Law. As the subtitle indicates, it examines the true causes of the incarceration rate in the United States. Professor Pfaff argues that the nationwide increase in the prison population is not the result of what he calls the “Standard Story,” a three-prong narrative often used to explain it: non-violent drug crimes pursued as part of the war on drugs, mandatory minimum sentences, and the economic incentives surrounding private prisons. Instead, he attributes much of the growth in the prison population to the political incentives and power of prosecutors.

I won’t do a full review of the book here, except to say that I think it’s excellent and that readers of this blog would enjoy and benefit from it. What I want to do instead, at least for today, is look at the extent to which Pfaff’s refutation of the Standard Story is borne out by data on North Carolina’s prison population.

Let’s start by putting North Carolina’s prison population in context. Today, the prison population sits at 37,208. That’s significantly below the October 2009 peak of roughly 42,000 inmates, and about the same number of inmates we had back in 2006. Three factors explain much of the decline. First, the General Assembly amended Structured Sentencing in 2009 to allow defendants with one prior record point to be sentenced like first-time felony offenders. Before that, even one prior point would shift a defendant into Prior Record Level II, with its slightly longer sentence lengths and higher likelihood of an active sentence. Second, in 2010 the Department of Public Safety (then the Department of Correction) changed its sentence credit policy to increase the rate at which inmates accrue Earned Time by 50 percent. That allowed inmates to reduce their sentences more quickly, and thus to obtain a release date closer to their minimum sentence. Third: Justice Reinvestment. The Justice Reinvestment Act’s sharp limitations on revoking probation and its transfer of misdemeanants from prison to the jails through the Statewide Misdemeanant Confinement Program were bound to cause a sharp decline—and did, especially from 2012 to 2014.

According to the Sentencing Project, North Carolina ranks about thirtieth in state imprisonment rate. It has the lowest rate of prison incarceration in the South (unless you consider Maryland to be in the South, which some unreasonable people apparently do).

With that background in place, let’s consider each of the three prongs of the Standard Story as applied to North Carolina.

Drug offenders. Professor Pfaff’s argument that America’s prisons generally are not full of nonviolent drug offenders holds true in North Carolina. (The data that follow were pulled from the Department of Public Safety’s Automated System Query tool, ASQ, which anyone can use to create custom reports.) Non-trafficking drug crimes make up a lot of prison entries (17 percent last year, the highest of any category and well ahead of second-place breaking or entering at 12 percent), but they do not account for the greatest percentage of the inmate population. That distinction goes to sexual assaults, which make up 12 percent of the total population. Following that are second-degree murders (9.4 percent), then robberies (8.6 percent), then drug trafficking (7.5 percent), then first-degree murder (7.4 percent), and then non-trafficking drugs at 7 percent.

Habitual felons actually account for nearly 14 percent of the prison population, but that category is harder to analyze because you can’t immediately discern the type of underlying offense that was sentenced under the enhancement. But we have data on that, too. We know that the crimes most commonly sentenced under the habitual felon law are possession of firearm by felon and breaking or entering. The bottom line is that most prison inmates in North Carolina were convicted of violent crimes. A relative handful of serious crimes—murder, robbery, sex crimes, and kidnapping—account for about half of all inmates.

Mandatory minimums. Does North Carolina have mandatory minimum sentencing? Yes, in the sense that some parts of the law require active time. (North Carolina does not have many federal-style mandatory minimum sentencing laws that take away a judge’s discretion to give a lesser sentence based on the presence of some additional circumstance, like the brandishing of a firearm.) The most obvious example in North Carolina is drug trafficking, which requires mandatory active time regardless of the defendant’s criminal history. But trafficking convictions are relatively rare (452 in FY 2017 according to the latest N.C. Sentencing and Policy Advisory Commission statistical report), and 17 percent of those convictions received probationary sentences—meaning they were either entered in error or benefited from a finding of substantial assistance, which allows the court to depart from the otherwise mandatory active term.

But trafficking sentences are not the only mandatory minimums. Everything from Class D up is sentenced from a grid cell in which the only dispositional option is “A” (active). Some of those cells allow for probation through extraordinary mitigation, but that law is rarely used. Ten grid cells in classes E though H require mandatory active time, but only for defendants who already have a criminal record (a substantial record if we’re talking about Class G and H defendants).

If we’re focused on non-trafficking drug offenders, the vast majority of those inmates were not sentenced from grid cell that required mandatory active time. I counted them up by grid cell. Of the 2,600 inmates in prison for non-trafficking drug convictions, I found 732 (just over a quarter) that were sentenced from active-only grid cells. And more than half of those (416) were Class C felons, which means the crime was probably manufacture of methamphetamine.

So, most inmates—especially if you look at non-trafficking drug inmates—were not subject to a mandatory minimum term of imprisonment in North Carolina. Most of the time, the judge had the choice between prison and probation at sentencing. And in fact, most of them got probation. Over half of North Carolina’s non-trafficking drug inmates arrived in prison via probation revocation.

Private prisons. The third prong of the Standard Story that Pfaff describes is the impact of a “prison industrial complex” that encourages those who profit from private prisons and other components of the prison system to lobby for more and longer sentences. Under G.S. 148-37 the state is authorized to enter into contracts with nonprofit or for-profit firms in other states to house state prisoners when there are no available facilities in North Carolina, but we don’t currently have any contracts to that effect. Prison spending and siting are surely matters of importance to legislators, local government leaders, and citizens in communities throughout North Carolina, but the general trend in North Carolina has been prison closures, not expansion. The state has closed more than a dozen prisons since 2011.

I think it’s fair to say that non-trafficking drug sentences and mandatory minimums are not the primary drivers of North Carolina’s prison population. That is not, however, to say that those issues are not important—as a policy matter, as a philosophical and moral matter, and of course as a legal matter for the individual defendants who are sentenced under those laws. I don’t advocate for any particular policy outcomes myself, but I take Professor Pfaff’s point that any well-conceived effort to address the incarceration rate begins with an informed discussion of what drives it. Any effort that focuses solely on the popular narrative will be incomplete at best, and potentially counterproductive if it is heralded as a victory but can’t deliver the hoped-for results.


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