Question 1

Challenging or Seeking Relief from a Criminal Conviction

Accepted Answer

There are many ways to challenge a criminal conviction. Which avenues are available to a given client depends on whether the client pled guilty or had a trial, whether the client appealed the judgement, and many other case-specific factors. Our office will provide a post-conviction review for any incarcerated person convicted in North Carolina. If you would like for us to review your loved one’s case, please encourage them to write to us with a brief explanation of the issues in their case. Our review consists of multiple stages and requires document and information requests from other offices—we appreciate your patience as we conduct our review process.
If we are unable to offer representation, one may still file something on one’s own. We gladly provide instructional guides and forms to incarcerated individuals upon request.
Helpful Links and Resources:
NCPLS Post-Conviction Manual and Forms(undefined)

North Carolina Indigent Defense Services (https://www.ncids.org/ids-defenders/)(for information about trial and appellate defenders)
UNC School of Government Guide: Relief from a Criminal Conviction(https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction/)

Question 2

Conditions of Confinement in Jails and Prisons

Accepted Answer

The US Constitution prohibits “cruel and unusual punishments,” which includes inhumane treatment and conditions while confined. If one is experiencing treatment or conditions that one believes is unlawful, one must first file a grievance regarding the incident(s) or condition(s). If administrative remedies are unsuccessful, one may seek to file a lawsuit. As to lawsuits, there are two types of claims and three jurisdictions in which to file—it is important to file the appropriate claim in the appropriate jurisdiction or one’s claim may be dismissed. Due to limited resources our office is not able to represent every individual who writes to us regarding conditions of confinement. We will evaluate each case for potential direct representation and will provide forms and manuals for incarcerated people to file suit on their own if we are unable to represent them on their claim.
A claim alleging cruel and unusual punishment may be brought in federal court by anyone incarcerated in a jail or prison facility. To succeed in a constitutional conditions of confinement claim, one must prove two things: 1. that one suffered a sufficiently serious deprivation of life’s necessities (food, warmth, sanitation, shelter from the elements, medical care, etc.) and 2. jail or prison officials acted intentionally or with deliberate indifference to punish the incarcerated individual.
An individual in jail may file a claim alleging negligence in the Superior Court of the county where the incident(s) occurred. An individual in prison may file a claim alleging negligence in the North Carolina Industrial Commission. To succeed in a negligence claim, one most show 1. that prison or jail officials had a specific legal duty, 2. that they unintentionally neglected or breached that duty, and 3. that their breach of duty directly caused the injury suffered by the plaintiff.
Helpful Links and Resources:
NCDAC Policy and Procedure Manual(https://public.powerdms.com/NCDAC/tree/documents/2416346)

Question 3

Custody Classification, Work Assignments, and Transfers

Accepted Answer

Questions and concerns about custody classification, work assignments, and transfers are often best addressed to an incarcerated person’s case manager. Individuals do not have an enforceable legal right to the following: a specific custody classification, a specific work assignment or a work assignment at all, or a transfer to a different facility – each of these decisions is in the discretion of the facility even if a sentencing judge recommended any of the above (i.e. work release, a specific facility, etc.). While we can provide general guidance regarding these processes to incarcerated people who write to us, please note that case managers should be able to provide more detailed and specific guidance because they are more familiar with the procedures at the facility and have a role in certain custody and programmatic decisions. If you believe a decision was discriminatory on the basis of race, nationality, gender, sexual orientation, or disability, see our guidance on discrimination and write to us for further evaluation of your situation.
Helpful Links and Resources:
NCDAC Policy and Procedure Manual(https://public.powerdms.com/NCDAC/tree/documents/2512318)

Question 4

Discrimination

Accepted Answer

If an incarcerated person believes they have been discriminated against by a facility staff member or policy, we encourage them to file a grievance (https://public.powerdms.com/NCDAC/tree/documents/2145373)using the facility’s administrative remedy procedure. If they are unable to resolve the issue with the grievance process, they may wish to file a lawsuit under the Equal Protection clause of the 14th Amendment to the U.S. Constitution. Due to limited resources our office is not able to represent every individual who writes to us regarding a failure to protect from assault, but we will evaluate each case for potential direct representation. For those individuals we are unable to represent, we will provide forms and manuals to file suit on their own.
To succeed in a discrimination lawsuit, one must prove three things. First, one must prove that DPS treated one worse than DPS treats “similarly situated” prisoners of a different race, nationality, gender, or sexual orientation.  Second, one must prove that the difference in treatment you experienced resulted from purposeful, intentional discrimination by facility officials due to your race, nationality, gender, or sexual orientation, and not because of a different, legitimate reason. If one has direct proof of discriminatory intent—such as racist comments from facility officials—it is important to include that in one’s complaint. Third, one must prove that the action was not taken to support a legitimate government interest.  Even if an action is discriminatory, it may be allowed by a court if the discriminatory action supports a legitimate government interest, such as prisoner health, safety, or security, among others. For further information on discrimination claims, see our memo on Equal Protection Claims.

Helpful Links and Resources:
ACLU – Know Your Rights, Prisoners’ Rights(https://www.aclu.org/know-your-rights/prisoners-rights/)

Question 5

Failure to Protect from Assault

Accepted Answer

We encourage those who have been assaulted to use the sick call process to seek medical care for and documentation of any injuries. If they wish to file a lawsuit on the basis that facility officials failed to protect them from harm, then they must also file a grievance regarding the incident. As to lawsuits, there are two types of claims and three jurisdictions in which to file—it is important to file the appropriate claim in the appropriate jurisdiction or one’s claim may be dismissed. Our office is not able to represent every individual who writes to us regarding a failure to protect from assault, but we will evaluate each case and can provide forms and manuals for incarcerated people to file suit on their own. The standards below apply whether one was assaulted by another incarcerated person or by a facility official, but be aware that standards for use of force may also apply if the assailant is a facility official.
Claims that allege staff were deliberately indifferent to a substantial risk of serious harm can be filed in federal court by individuals in jail and prison. Claims that allege staff neglected a duty to protect arise under state law. An individual in jail may file a negligence claim under state law in the Superior Court of the county in which the incident occurred. An individual in prison may file a negligence claim under state law in the North Carolina Industrial Commission. Our office is not able to represent every individual who writes to us regarding a failure to protect incident, but we will evaluate each case and can provide forms and manuals for incarcerated people to file suit on their own.
Helpful Links:
NCDAC Policy and Procedure Manual(https://public.powerdms.com/NCDAC/tree/documents/2422903)

Question 6

Grievances and the Administrative Remedy Procedure

Accepted Answer

The North Carolina Department of Public Safety created an administrative remedy procedure to give inmates a way to report problems and allow staff members to respond to inmates’ issues. This procedure is more commonly known as the grievance process. We receive many letters every week from inmates who report problems with this process, from difficulty getting DC-410 forms, interference by correctional staff, and fear of retaliation for filing grievances. By law, one must follow each step in the grievance process from beginning to end before one can file a claim outside of the prison system about the issue one is facing. This is known as exhausting the grievance process. This letter explains how incarcerated people can navigate the grievance process effectively.(undefined)

Helpful Links and Resources:
NCDAC Policy and Procedure Manual(https://public.powerdms.com/NCDAC/tree/documents/2145373)

Question 7

Immigration and Detainers

Accepted Answer

Outside law enforcement agencies may file a detainer with NCDPS to request custody of an individual. Detainers may affect one’s custody classification, work assignment, parole, and participation in other programs. Typically, detainers are filed when one has pending charges filed by a county in North Carolina, another state, or the federal government. A detainer may be removed by resolving the pending charges/allegations. For further information about requesting a speedy trial, otherwise resolving pending charges, or other matters pertaining to domestic detainers, please consult the NCPLS detainer manual below.
Federal immigration officials may also file detainers with the DOC if an individual has pending immigration matters. Under state law, some individuals may request to be transferred to ICE custody prior to the completion of their active sentence, but certain criteria determine eligibility.(https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_148/gs_148-64.1.html) While NCPLS is unable to provide advice regarding immigration matters, we advise speaking with an immigration attorney regarding your specific concerns and offer the below resources for reference.
Helpful Links and Resources:
North Carolina Justice Center Legal Assistance for Immigration(https://www.ncjustice.org/getting-legal-assistance/#:~:text=If%20you%20need%20immigration%20help,for%20immigration%20legal%20assistance%20only.)
Immigration Law Help Directory of NC Organizations(https://www.immigrationlawhelp.org/search?state=NC)
LawHelpNC Guidance on Immigration(https://www.lawhelpnc.org/issues/immigration)

Question 8

Jail Credit

Accepted Answer

While the idea may seem simple, calculations of how much of one’s time spent in jail applies to one or more sentences can be quite complex. Generally, if one spends time in jail as a result of a given charge or incident, then one is entitled to credit for that time toward the active sentence one receives as a result of that charge or incident. If one receives multiple sentences as a result of given charge(s) or incident(s), then one is entitled to receive as much credit as will reduce their total incarceration term by the amount of time spent in jail. (In other words, the time will be applied to every concurrent sentence, but consecutive sentences are treated as if they were one long sentence and jail credit is only applied once.) Jail credit matters may become more complicated in cases with multiple sentences, multiple offense dates or charging dates, probation revocations, and split sentences.  Our office is unable to fully investigate each request for jail credit assistance that we receive, but we encourage incarcerated people to write to us regarding any concerns they have about their convictions. We can provide general guidance on jail credit issues to any incarcerated person who writes to us.

Question 9

Marriage, Divorce, Child Custody, and Family Law

Accepted Answer

Any person in a North Carolina prison may submit a marriage request to the facility head and may marry, pending approval of the facility head. Facility heads may deny a request if the incarcerated person is in restrictive housing, if the marriage presents a security threat, or if both individuals are incarcerated. For further information, see NCDPS Policy and Procedure Manual (https://www.ncdps.gov/adult-corrections/prisons/policy-procedure-manual)(F.0300 Inmate Marriage Requests).
While NCPLS is unable to assist with divorce proceedings, child custody proceedings, or other aspects of family law, we offer the below resources.
Helpful Links and Resources:
LawHelpNC Guidance on Issues in Family and Juvenile Law(https://www.lawhelpnc.org/issues/family-and-juvenile)
Legal Aid of North Carolina Child Custody Clinic(https://www.legalaidnc.org/get-help/self-help-clinics/child-custody-and-visitation-clinic)
Legal Aid of North Carolina Simple Divorce Clinic(https://www.legalaidnc.org/get-help/self-help-clinics/simple-divorce-clinic)
NC Courts Help Topics (https://www.nccourts.gov/help-topics)(including Marriage, Divorce, Child and Family law)

Question 10

Medical Treatment in Jails and Prisons

Accepted Answer

We encourage those who need medical and mental health treatment to request care via the sick call procedure at their facility. If they are dissatisfied with the care that they received, they should file a grievance regarding the issue. If they wish to file a lawsuit regarding the medical care they did or did not receive, it is necessary to first file a grievance.(https://public.powerdms.com/NCDAC/tree/documents/2145373) As to lawsuits, there are two types of claims and three jurisdictions in which to file—it is important to file the appropriate claim in the appropriate jurisdiction or one’s claim may be dismissed. Due to limited resources our office is not able to represent every individual who writes to us regarding medical treatment, but we will evaluate each case for potential direct representation.  We can provide forms and manuals for incarcerated people to file suit on their own if we are unable to provide them this representation.
Please note that lawsuits regarding medical care for COVID-19 present unique challenges because of the novelty and uncertainty of the virus. See additional information on COVID-19 below.
A medical care civil rights claim under §1983 alleges deliberate indifference to serious medical need. These claims can be made brought in federal court. These claims allege that the actions of medical staff were intentional, which can be challenging to prove. To succeed, one must prove four things: 1. one had a serious medical need, 2. medical staff or other staff knew about the need, 3. medical staff chose not to treat or address the need, and 4. the lack of treatment caused a serious injury. One can file a medical care civil rights claim in federal court whether one is incarcerated in a jail or in a prison.
If one was injured as a result of carelessness (instead of an intentional action) by medical staff, one may file a medical negligence claim under state law. If one is in a jail facility, a medical negligence claim is filed in Superior Court in the county in which the incident(s) occurred. If one is in a prison facility, a medical negligence claim is filed in the North Carolina Industrial Commission. To succeed, one must prove four things: 1. medical staff owed one a duty of reasonable care, 2. medical staff breached that duty, 3. the breach of that duty directly caused an injury, and 4. the injury suffered as a result of the breach is sufficient to win money damages. The largest challenge to incarcerated people filing medical negligence claims is Rule 9J of NC Rules of Civil Procedure, which requires that a medical expert certify that the care received did not comply with the standard of care. Medical expert witnesses can be difficult to find and expensive—friends and family may wish to seek out doctors who may be willing to serve as a medical expert.
Helpful Links and Resources:

North Carolina Medical Board (https://www.ncmedboard.org/)(governing doctors, physician’s assistants, and nurse practitioners)
North Carolina Board of Nursing (https://www.ncbon.com/)(governing nurses other than nurse practitioners and certified nursing assistants)
North Carolina Division of Health Service Regulation (https://info.ncdhhs.gov/dhsr/)(governing certified nursing assistants)
NCDAC Comprehensive Health Services (for prisons) (https://public.powerdms.com/NCDAC/tree/documents/2530610)

Question 11

Pending Criminal Charges and Challenges with Attorneys

Accepted Answer

NCPLS provides post-conviction assistance to those who have already been convicted in North Carolina State courts. Individuals sometimes experience communication or other issues with their appointed attorneys. While NCPLS is unable to represent clients at the trial level, we offer the below resources for finding an attorney, seeking help in communicating with one’s attorney, and filing a grievance regarding an attorney’s performance.
Helpful Links and Resources:
North Carolina Indigent Defense Services (https://www.ncids.org/ids-defenders/)(for information about trial and appellate appointed or public defenders)
North Carolina Advocates for Justice Find-A-Lawyer Directory(https://www.ncaj.com/?pg=FindALawyer)
North Carolina State Bar Association’s Attorney Client Assistance Program (https://www.ncbar.gov/bar-programs/attorney-client-assistance-program-acap/)(for help communicating with one’s attorney)
North Carolina State Bar Association’s Guidance on Disputes with Lawyers(https://www.ncbar.gov/for-the-public/i-am-having-a-dispute-with-a-lawyer/)

Question 12

Religious Services and Accommodations in Jails and Prisons

Accepted Answer

In both jail and prison facilities, the first step to ensuring that one’s religious needs are met is to speak with a chaplain or file a request for services or accommodation with the appropriate authority. In a jail facility, this may entail filing a request or grievance with a jail administrator that clearly states one’s beliefs and the services or accommodations one is requesting. In a prison facility, one may file a grievance if the religious services manual is not being followed or is unduly restrictive. Then, one may ask a chaplain, case manager, or other prison official for a DC-572 Request for Religious Assistance, which one can submit to be reviewed by the Chaplaincy Services Director. See NCDAC Policy and Procedure Manual H .0100 Religious Services.(https://public.powerdms.com/NCDAC/tree/documents/2418569)
If administrative remedies are unsuccessful, one may file a lawsuit about the free exercise of religion in federal court under both the Constitution and Religious Land Use and Institutionalized Persons Act (RLUIPA). In both cases, one must prove that the facility policy places a substantial burden on the practice of one’s religion. For Constitutional claims, one’s claim may be dismissed if there is a legitimate penological interest (such as a security risk or safety concern) for the policy. For claims under RLUIPA, the court will consider whether the policy fulfills a legitimate governmental interest and whether the policy is the least restrictive means to fulfill that interest. Claims under RLUIPA are easier to prove, however, one may not seek money damages in claims under RLUIPA. Due to limited resources our office is not able to represent every individual who writes to us regarding religious services and accommodations, but we will evaluate each case for potential direct representation. For those we are unable to represent, we can provide forms and manuals for incarcerated people to file suit on their own.

Question 13

Sentence Modifications, Commutations, and Clemency

Accepted Answer

There is no legal provision for modifying a sentence without cause—this includes changing sentences from consecutive to concurrent—but there may be other avenues to relief. We encourage anyone seeking to modify their sentence in any way to write to our attorneys so that we can review the case or provide guidance on the specific kind of modification being requested.
Our office is unable to compile clemency petitions for every individual who writes to us with a request. Requests for a pardon or commutation are made through the Governor’s Clemency Office. (https://governor.nc.gov/contact/frequently-asked-questions/legal-issues#IwanttohavemyrightsrestoredreceiveapardonorcommutationExecutiveClemencyWhodoIcontact-125)We are happy to provide procedural guidance on clemency to incarcerated people who write to us.
Helpful Links and Resources:
American Bar Association Guidance on Capital Clemency in North Carolina(https://www.capitalclemency.org/state-clemency-information/north-carolina/)

Question 14

Sexual Assault and Harassment

Accepted Answer

NCPLS takes sexual assault cases very seriously. If someone you know has been assaulted while incarcerated, please have them write to us immediately. We encourage anyone who has been assaulted to seek medical care to treat any injuries and document the assault. The standards for the Prison Rape Elimination Act, known as PREA, went into effect in 2013. Under the PREA standards, one has the right to be free from sexual harassment and abuse by other incarcerated people and facility staff; the right to have one’s report of sexual harassment or abuse investigated by facility officials; and the right to be free from retaliation for reporting incidents of sexual harassment or abuse.  One also has the right to medical services following a report of an alleged act of sexual abuse at no cost or co-payment; the right to a referral for mental health services; and the right to access outside victim advocates for emotional support services from a local, state or national rape crisis organization in as confidential a manner as possible.
Prison facilities have uniform procedures and policies for handling sexual assault incidents in accordance with the Prison Rape Elimination Act (PREA). While jail facilities are also subject to PREA standards, the procedures and policies differ among facilities. For assaults that take place within a prison facility, please consult below our memo regarding the implementation of PREA standards in NCDAC facilities. For assaults that take place within jail facilities, we recommend that individuals immediately report the incident to the Sheriff, the Jail Administrator, or to a staff member whom they trust and request that a criminal investigation be opened into the abuse.  One can also write a grievance requesting that one’s sexual harassment or abuse be investigated. A family member of the assault survivor, an attorney, or someone else may report the abuse, but we strongly urge that they do so only with the permission of the survivor.
Although one cannot sue correctional staff for a PREA violation alone, one may choose to file a constitutional claim of sexual assault in federal court. To succeed on a sexual assault claim, one must show that (1) staff touched or used force against the individual, without the individual’s consent, and (2) the touching or force was of a sexual nature. One cannot succeed merely on the belief that the touch or force was sexual in nature; one must prove the existence of facts that support that claim. Accordingly, an unwanted touching of a private area of an individual’s body is probably not actionable as a sexual assault claim unless also accompanied by sexual comments or other conduct indicating the contact was sexual in nature.
One may also choose to file a constitutional claim alleging that facility officials failed to protect one from harm, including sexual assault. For further guidance on these claims, see our guidance on Failure to Protect from Assault.
Helpful Links and Resources:

National PREA Resource Center(https://www.prearesourcecenter.org/)
NCDAC PREA Guidance(https://www.dac.nc.gov/divisions-and-sections/administrative/prison-rape-elimination-act-prea-office)
Just Detention International (https://justdetention.org/)(International organization combatting sexual assault in prisons and jails)

Question 15

Use of Force by Correctional Staff

Accepted Answer

We encourage those who have been assaulted by correctional staff to file a grievance regarding the incident, use the sick call process to seek medical care for and documentation of any injuries, and write to us with any additional questions they may have. The standards governing excessive use of force lawsuits make it difficult for incarcerated people to succeed on these claims. A court will rely on several factors to evaluate a claim, including the officer’s explanation regarding the need for the use of force, the relationship between that need and the amount of force that was used, and the extent of the injury that resulted. Due to limited resources, our office is not able to represent every individual who writes to us regarding a use of force incident, but we will evaluate each case for potential representation. If we are unable to provide direct representation, we can provide forms and manuals for incarcerated individuals to file suit on their own.
Helpful Links and Resources:
NCDAC Policy and Procedure Manual (https://public.powerdms.com/NCDAC/tree/documents/2422903)(See F .1500 Use of Force)

Question 16

Wills, Estates, and Housing Law

Accepted Answer

While these topics are generally outside of the scope of our work, we offer the below resources on wills, estates, and housing. NCPLS can also provide limited, general guidance to incarcerated people who write in about estate administration.
Helpful Links and Resources:
NC Courts Help Topics (https://www.nccourts.gov/help-topics)(including Wills and Estates, and Housing)
Legal Aid of North Carolina (https://www.legalaidnc.org/)(for Housing Discrimination and Eviction)
North Carolina Justice Center (https://www.ncjustice.org/projects/consumer-housing/overview-ch/about-consumer/)(Homeowner and Tenant rights, and Foreclosure Prevention)