NORTH CAROLINA PRISONER LEGAL SERVICES
ACTIVITIES & LITIGATION

INTRODUCTION

Established in 1978, North Carolina Prisoner Legal Services, Inc. (NCPLS), is a non-profit, public service organization. The program serves a population of more than 37,000 prisoners and 14,000 pre-trial detainees (with annual jail admissions exceeding 250,000). With a staff of 38, including 15 lawyers and 16 paralegals, NCPLS provides information and advice concerning legal rights and responsibilities, discourages frivolous litigation, and works toward administrative resolutions of legitimate problems. When serious problems cannot be resolved administratively, NCPLS provides representation in all State and federal courts to ensure humane conditions of confinement and to challenge illegal convictions and sentences. No other entity in North Carolina routinely provides these services.

LITIGATION

State v. Ellis, 639 S.E.2d 425, ___ N.C.___ (2007)(illegal sentence voidable ab initio)(But c.f., Hamilton v. Freeman, 554 S.E.2d 856 (NC App. 2001)(DOC required to honor judgment & commitment order as entered by court and could not unilaterally modify sentences based on its own determination that sentence violated state statute).

State v. Lutz, 628 S.E.2d 34, ___ N.C.App. ___ (2006)(pursuant to decision of N.C.S.Ct. in Hearst [see infra at p. 2], defendant entitled to credit against sentence for time spent in court-ordered substance abuse program at DART-Cherry substance abuse treatment program).

State v. Lawson (COA04-564)(NC Ct. App. 2005). NCPLS accepts a limited number of court appointments to represent defendants in criminal appeals. In this case, the defendant was convicted of assault with a deadly weapon inflicting serious injury. The North Carolina Court of Appeals ruled that the State failed to present adequate evidence on the element of the deadly weapon. The appellate court arrested judgment on the felony assault and remanded the case for entry of judgment on the lesser included offense of assault inflicting serious injury, a misdemeanor. A subsequent addendum to the opinion granted the defendant's Motion for Appropriate Relief (filed after the appeal, but prior to the Court's decision in the case). The court further held that defendant's aggravated sentence on the felony assault violated the requirements of Blakely v. Washington. The case was also remanded for resentencing.

Dawed Al-Amin Shabazz v. Michael York, et al., Case No. 1:02CV00350 (MDNC 2005). The plaintiff found it difficult to access prison services using his religious name. DOC policy stated that a prisoner had to 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, seeking medical services, requesting trust fund disbursements, accessing other programs or services, and participating 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 litigation DOC changed its policy, permitting prisoners who legally change their names to have their new, legal name added directly below the committed name on their identification cards.

State v. Thomas, No. 99-CRS-036198, Forsyth County Superior Court (2005). Motion for Appropriate Relief filed on behalf of a man sentenced for second degree rape. An error in calculating our client's Prior Record Level provided grounds fro reducing his sentence from 105-135 months to 91-119 months to reflect the correct Prior Record Level.

Thebaud v. Jarvis, 5:97-CT-463-BO(3)(EDNC 1997 - 2003). A class of women confined at Women's Correctional Institution in Raleigh, NC, alleged that a systemic failure to provide timely medical evaluations, diagnoses, and treatment for serious medical conditions resulted in deaths, miscarriages, and other serious injuries. After a series of ameliorative measures implemented by the defendants, the parties agreed to a novel resolution of the case - an expert was jointly hired to assess the delivery of health care services at the prison. The expert's recommendations were not binding on the parties, but the defendants agreed to act in good faith to implement those proposals they considered to be feasible and well-founded. Virtually all of those recommendations were addressed by the defendants, and after five years of litigation and substantial improvements in most aspects of the health care delivery system, the parties entered into a "Joint Resolution," under which Plaintiffs monitored compliance for a one-year period. The Federal District Court approved the Joint Resolution on 8 July 2002, and Plaintiffs took a dismissal on 8 July 2003.

State v. Hearst, 356 N.C. 132, 567 S.E. 2d 124 (N.C. 2002). North Carolina Supreme Court held that inmates who participated in a mandatory boot camp program (the Intensive Motivational Program of Alternative Correctional Treatment - IMPACT) were entitled to credit against their sentences pursuant to State law. From 1 October 2002 through 10 May 2005, with help in identifying affected prisoners from the DOC, NCPLS advocates obtained more than 69,928 days (some 383 years) credited to more than 300 of our clients (70 of whom were entitled to immediate release). At a rate of $65.59 per day, we estimate savings to the State in the amount of $4,586,577.52. Over the past 5 years, those savings totaled more than $15 million.

Hamilton, et al. v. Beck, et al., COA00-1470 (NCCt.App. 2002)(class action which reversed DOC's practice and required sentences to be recorded in DOC combined record as specifically stated in the judgment and commitment).

Hamilton v. Freeman, 554 S.E.2d 856 (NC App. 2001)(DOC required to honor judgment & commitment order as entered by court and could not unilaterally modify sentences based on its own determination that sentence violated state statute).

In other litigation, literally hundreds of inmates have been represented by NCPLS attorneys. Significant victories include; Bates v. Jackson, 5:98-HC-915-BR(2) (October 19, 2000), Fields v. Chavis, 5:00-HC-9-BR(3) (January 29, 2001) and Milligan v. McDade, 5:00-HC-8-H (February 15, 2001) (individual habeas corpus actions brought in federal court for the Eastern District of North Carolina finding violations of the Double Jeopardy Clause, and resulting in the immediate release of all three clients); In re: Bullis, 00 J 139 (3 October 2001)(gaining and enforcing client's right of visitation with minor child); and State v. Cox, (MAR challenging conviction for speedy trial violation resulted in settlement dismissing several charges and reducing sentence by more than 6 years.) Love v. Freeman, 188 F.3d 502 (4th Cir. 1991-1999)(8-year legal battle culminating in new trial when appellate court ruled that evidence improperly withheld by the State had prevented defendant from receiving a fair trial.)

Over the years, NCPLS has been involved in other significant litigation, including Small v. Martin, 85-987-CRT (EDNC 1985)(class action challenging conditions at 48 of the State's "road camp" prison units; settlement resulted in legislation that "capped" the prison population, leading to Structured Sentencing); Law, et al., v. Britt, No. 93-300-CT-BR (EDNC 1993)(class action lawsuit challenging the conditions in the State-run juvenile detention centers); Anthony D., et al., v. Freeman, et al., 5:95-CV-1053-BR(1)(EDNC 1995)(special education); and West v. Atkins, 487 U.S. 42 (1988)(U.S. Supreme Court held obligation to provide medical care to prisoners is non-delegable duty of the state). Medley v. N.C. Dept. of Correction, 412 S.E. 2d 654 (N.C.S.Ct. 1992)(State-law duty to provide adequate medical care for prisoners cannot be delegated).

Legal Services for Incarcerated Immigrants: For the past decade, NCPLS has provided limited assistance to inmates in connection with immigration matters. For instance, we have successfully represented prisoners who were U.S. citizens, but who were erroneously being considered for deportation, non-English speaking prisoners who were convicted without the benefit of an interpreter, and non-citizens who were not advised of the immigration consequences of entering a guilty plea. NCPLS has also successfully represented non-citizen prisoners who faced persecution, torture, or murder upon removal.

In re: Hassan, File No. A 76 413 781 The Bureau of Immigration and Customs Enforcement (BICE) attempted to deport our client, who was legally residing in the United States. However, upon a conviction for embezzlement, BICE filed an immigration detainer alleging that our client was deportable due to his conviction of an "aggravated" felony. In response, NCPLS filed a claim asserting that there was a clear probability that our client would face persecution and torture if he were forced to return to Somalia. (In the early 1990's, Somalia was gripped by a civil war after which our client suffered severe persecution and torture until he was able to escape to the United States where he was granted political asylum. Conditions in Somalia have not improved for the minority clan since the civil war and our client faced grave and perhaps mortal danger if he were forcibly returned to Somalia. This critical point was established with expert testimony which convinced the immigration judge to rule in our client's favor, allowing him to remain and work in the United States.

ACTIVITIES

NCPLS advocates are also involved in other activities to improve the criminal justice system and to serve the public.

The North Carolina Sentencing & Policy Advisory Commission is the body created by the North Carolina General Assembly to study the impact of criminal laws with regard to the State's correctional resources, to assess the impact of possible changes in the law, and to recommend measures that will best meet the correctional objectives of the Legislature. Billy Sanders, a Certified Legal Assistant Specialist employed by NCPLS as Office Administrator, serves as a Commissioner in that organization.

American Bar Association (ABA) - Executive Director Michael S. Hamden served as co-chair of the ABA Criminal Justice Section's Sentencing & Corrections Committee. In addition, Hamden, who has served as the ABA's liaison to the American Correctional Association, presently serves on the Criminal Justice Section Council.

American Correctional Association (ACA) - The ACA is a national, multi-disciplinary organization of professionals representing all levels and facets of corrections and criminal justice. ACA establishes standards governing corrections practices and operations, and accredits institutions that comply with those standards. The NCPLS Executive Director has served three terms of two years each on the ACA's Standards Committee (the body that promulgates standards which reflect "best practices" for all types of correctional facilities.) Hamden also served two terms of four years each on the ACA Commission on Accreditation (the body that rules on applications for ACA accreditation and enforces operational standards nationwide.) Hamden was elected to the Commission's Executive Committee in 2002 and will complete his term of service in August 2006.

Reasonable Access to Correctional Telephone Services - Families who have loved ones in prison know just how expensive it can be to communicate with prisoners by telephone. Collect calls are generally the only means by which a prisoner can place a call, and rates tend to be four or five times as expensive as ordinary phone calls. In his capacity as co-chair of the Corrections & Sentencing Committee of the American Bar Association (ABA), NCPLS' Executive Director successfully advocated for an ABA Resolution encouraging correctional authorities to provide prisoners reasonable opportunities to maintain telephonic communication with the free community, and to offer telephone services in the correctional setting with an appropriate range of options at the lowest possible rates. On August 11, 2005, the ABA's House of Delegates passed the Resolution by over-whelming voice vote.

The ABA Resolution accords with the position of the American Correctional Association (ACA). During his term of service as the ABA's liaison to the ACA, NCPLS' Executive Director drafted and successfully lobbied for the adoption of ACA's Public Correctional Policy on Inmate/Juvenile Offender Access to Telephone (adopted Jan.24, 2001); as well as related standards [Standards for Adult Correctional Institutions (3rd ed.); Standards for Adult Local Detention Facilities (3rd ed.); Standards for Adult Community Residential Facilities (4th ed.); Standards for Adult Correctional Boot Camp Programs (1st ed.); Standards for Juvenile Community Residential Facilities (3rd ed.); Standards for Juvenile Detention Facilities (3rd ed.); Standards for Juvenile Correctional Boot Camp Programs (1st ed.); Standards for Juvenile Training Schools (3rd ed.); Standards for Small Juvenile Detention Facilities (1st ed.); and Small Jail Facilities (1st ed.).]

Committee on Ethical Considerations for Revisions to the Department of Health and Human Services (DHHS) Regulations for Protection of Prisoners Involved in Research (the National Academies of Science, Institute of Medicine). To re-examine ethical considerations for the protection of prisoners involved in research, the Institute of Medicine recently commissioned a committee to study the issue. Regulations that presently govern such research were adopted by the Department of Health and Human Services (DHHS) at 45 C.F.R 46 Subpart C (1978). There are several concerns about these regulations. First, they apply only to research funded by DHHS or other agencies of government that have expressly agreed to be bound by the rules. 45 C.F.R. 46.101. Second, the regulations have been criticized as overly protective, preventing the participation of people who would benefit greatly from research into the treatment of HIV/AIDS, or Hepatitis C, for example. Third, researchers have complained that the regulations are too restrictive and that they frustrate efforts to expand knowledge. Finally, much has changed during the two-and-a-half decades since the rules were promulgated and some observers question whether they continue to be in keeping with the realities of prison life, societal perceptions about research, and the need for the protection of well-informed and consenting participants in research. Among those named to the Committee was NCPLS' Executive Director.

Lynn S. Branham and Michael S. Hamden, Cases and Materials on the Law and Policy of Sentencing and Corrections (7th ed. 2005). A team of NCPLS attorneys contributed to a new publication from Westlaw/Thomson for use in the law school classroom. Published as part of its American Casebook Series, the book includes coverage of important court decisions, 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 is an expert in sentencing and corrections law and policy and a well respected author who presently serves as Associate Dean for the Thomas M. Cooley School of Law in Grand Rapids, Michigan.

North Carolina Prisoner Litigation Conference (December 1996 - February 1997). NCPLS convened a conference involving representatives of the United States District Court, the U.S. Marshal, the Department of Correction, the Inmate Grievance Resolution Board, and the Office of the Attorney General, to discuss prisoner litigation in the Eastern District of North Carolina, and to explore ways to increase efficiency, consistently with the interests of justice and the rights of the litigants.