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North Carolina Central Law Review
Volume 32
Number 1 Volume 32, Number 1 Article 8
10-1-2009
The Fair Sentencing Act: Exploring Solutions to
Unintended Interpretations of Law
Jessica Floyd
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Law Review: Vol. 32 : No. 1 , Article 8.
Available at: https://archives.law.nccu.edu/ncclr/vol32/iss1/8
THE FAIR SENTENCING ACT: EXPLORING
SOLUTIONS TO UNINTENDED
INTERPRETATIONS OF LAW
JESSICA FLOYD*
Murderers and other violent criminals who were convicted under
the North Carolina Fair Sentencing Act (FSA or the Act) could be
entitled to immediate release. This means that violent criminals would
be free to mingle amongst law-abiding citizens without being subject
to a parole board, a parole officer or any type of formal supervision.
The FSA applies to offenses committed from 1981 through 1994.1
However, the Act was repealed in 1994 and is no longer current law.2
State v. Bowden brought the implications of the Act to the judiciary
forefront.3 Bowden contended his sentence was cut in half as a result
of the sentencing credits received under the 1981 Retroactive Provi-
sion of the Act, thus entitling him to immediate release from prison.
This note focuses on the Bowden case and the relatively limited his-
tory of sentence reduction credits associated with the FSA. The facts
and holding of the case are explained in detail followed by an analysis
of the options available to the court. Finally, the note considers the
impact of the various possible outcomes on society and whether or not
the Governor of North Carolina has the authority to prevent the re-
lease of inmates sentenced under the Act.
THE CASE
In 1975, Bobby E. Bowden was convicted of two counts of first-
degree murder and sentenced to death.4 In 1976, the North Carolina
Supreme Court vacated Bowden's death sentence and remanded so
that life sentences could be imposed.5 Subsequently, the defendant
was given two life sentences, which are presumed to run concur-
* B.A., University of North Carolina at Chapel Hill, The School of Journalism and Mass
Communication, 2007; J.D. (cand.) North Carolina Central University School of Law 2011. I
dedicate this casenote to my loving parents, Representative Pearl Burris-Floyd and Dr. Elson S.
Floyd, for their continued support and encouragement, now and always.
1. Price v. Beck, 153 N.C. App. 763, 766, 571 S.E.2d 247, 250 (2002).
2. N.C. GEN. STAT. § 15A-1340.1 (1993) (repealed 1994).
3. State v. Bowden, No. COA08-372. (N.C. Ct. App. Nov. 4, 2008), 668 S.E.2d 107 (2008).
4. Id. at 597, 668 S.E.2d at 108.
5. State v. Bowden, 290 N.C. 702, 717, 228 S.E.2d 414, 424 (1976).
1
Floyd: The Fair Sentencing Act: Exploring Solutions to Unintended Interp
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116 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 32:115
rently.6 In 2005, Bowden filed a Petition for the Issuance of a Writ of
Habeas Corpus ad Subjiciendum. Bowden argued that he should have
received good time credit and good conduct credit as required by the
1981 Retroactive Provision of the Fair Sentencing Act7 . He contended
that due to the number of credits he had accumulated, his sentence
would be cut in half, thereby reducing his eighty-year life sentence to
forty years, and entitling him to immediate release.8 In 2006, the trial
court denied Bowden's petition.9
Next, Bowden appealed to the North Carolina Court of Appeals,
where the matter was considered a motion for appropriate relief.10
The Court vacated the trial court's order and ordered the lower court
to conduct an evidentiary hearing to resolve issues of fact raised in
Bowden's petition.11 After conducting an evidentiary hearing, the trial
court found that all of Bowden's good time, merit time, and gain time
credits had been applied to his sentence. 2 However, the Department
of Correction later retroactively changed the status of Bowden's sen-
tence reduction credits from "applied" to "pending". 3 Thus, the trial
court issued an order denying Bowden's claim for relief. 4 The trial
court held that, "N.C. Gen. Stat. § 14-2 (1974) only requires the De-
partment of Correction to treat [Bowden's] life sentence as a term of
eighty years for purposes of parole eligibility."' 5
Again, Bowden appealed this decision contending that N.C. Gen.
Stat. § 14-2 (1974) grants him a statutory right to have his life sentence
treated as an eighty-year sentence for all purposes, including determi-
nation of his unconditional release date.'6 The Court of Appeals
agreed with Bowden and held as such. 17 The Court's rationale was
based on the plain language of the statute in providing, "life imprison-
ment shall be considered as a sentence of imprisonment for a term of
eighty years in the State's prison without limitation or restriction.' 18
There was no indication within the wording of the statute which sug-
gested that the eighty-year life sentence only pertained to parole eligi-
bility. 9 The Court held that "[Bowden's] life sentence is considered as
6. Jernigan v. State, 279 N.C. 556, 563, 184 S.E.2d 259, 265 (1971).
7. Bowden at 597, 668 S.E.2d at 108.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
16. Bowden, at 599, 668 S.E.2d at 108-09.
17. Id. at 599, 668 S.E.2d at 109.
18. Id. at 601, 668 S.E.2d at 110.
19. Id. at 601, 668 S.E.2d at 110.
2
North Carolina Central Law Review, Vol. 32, No. 1 [2009], Art. 8
https://archives.law.nccu.edu/ncclr/vol32/iss1/8
THE FAIR SENTENCING ACT
an eighty-year sentence for all purposes. '20 The Court then reversed
the trial court's order and remanded for a hearing to determine how
many sentence reduction credits Bowden is eligible to receive and
how those credits are to be applied." Subsequently, Bowden appealed
to the North Carolina Supreme Court, which held that discretionary
review was improvidently allowed.22
BACKGROUND
The Fair Sentencing Act of North Carolina (FSA or the Act) ap-
plies to offenses committed from 1981 through 1994.23 Notably, Bow-
den's 1975 convictions do not fall within the specified timeframe.
However, the Act included a retroactive provision that covered crimes
committed before 1981.24 This provision provided as follows:
(b) With respect to prisoners who are serving prison or jail terms not
subject to Article 81A of Chapter 15A of the General Statutes and
prisoners serving a life term for a Class C felony, the Secretary of Cor-
rection, may, in his discretion, issue regulations regarding deductions
of time from the terms of such prisoners for good behavior, meritori-
ous conduct, work or study, participation in rehabilitation programs,
and the like.
(Emphasis added) N.C.G.S. § 148-13(b). In essence, the retroactive
provision affected Class C felony sentences imposed prior to 1981.25
Class C felonies may be punishable by life imprisonment.26 For prison-
ers convicted of a Class A or B felony, a distinctly different subsection
applied which mandated sentence reduction credits,
(b) A prisoner committed to the Department of Correction or a jail to
serve a sentence for a felony shall receive credit for good behavior at
the rate of one day deducted from his prison or jail term for each day
he spends in custody without a major infraction of prisoner conduct
rules.
(Emphasis added) N.C.G.S. § 15A-1340.7(b). For well-behaved Class
A and B felony prisoners, this provision could cut his or her sentence
in half.27 Prisoners sentenced under the FSA are "eligible for release
on parole only upon the completion of the service of th[e] minimum
term or one fifth of the maximum penalty allowed by law.. .whichever
20. Id.
21. Id.
22. State v. Bowden, No. 514PA08, slip op. (N.C. Oct. 9, 2009).
23. See N.C. GEN. STAT. §§ 15A-1340.1-1340.7 (1993) (repealed 1994).
24. N.C. GEN. STAT. § 148-13(b) (1993) (repealed 1995).
25. § 148.
26. Teasley v. Beck, 155 N.C. App. 282, 286, 574 S.E.2d 137, 139 (2002).
27. Id. at 287, 574 S.E.2d at 140.
2009]
3
Floyd: The Fair Sentencing Act: Exploring Solutions to Unintended Interp
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118 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 32:115
is less, less any credit. '2 8 However, for prisoners serving a life sen-
tence for a Class C felony (like Bowden) sentence reduction credits
are not mandatory, nor guaranteed.29
Supplementing this legislation are regulations from the North Caro-
lina Administrative Code.30 According to the Code, "sentence reduc-
tion credits" are "[t]ime credits applied to an inmate's sentence that
reduce the amount of time to be served."'" This includes good time,
gain time, and meritorious time.312 Good time is "credit for good be-
havior at the rate of one day deducted for each day he spends in cus-
tody without a major infraction of prison conduct rules."33 Gain time
is "credit for participation in work and program activities,"34 and mer-
itorious time is credit given "for acts of exemplary conduct or work
under extraordinary conditions."35
Under North Carolina law, the Director of Prisons is vested with
the authority to determine the allowance and forfeiture of gain time at
his sole discretion.36 Gain time and good time credit determinations
have been deemed to be strictly administrative decisions and not
within the judicial realm.37 Therefore, giving or withholding these
types of sentence reduction credits is not a matter in which courts are
authorized to deal.38 The Court of Appeals has previously held that
sentence reduction regulations of the Department of Correction do
not apply to inmates serving Class C life sentences for purposes of
determining parole eligibility.39
The FSA was subsequently replaced with the Structured Sentencing
Act, which is effective on or after October 1, 1994.40 Nevertheless, the
FSA comes into play periodically for defendants like Bowden. The
facts in Bowden present a truly novel issue for the courts regarding the
number of credits to which he is entitled, and whether they should be
applied to his sentence.
28. N.C. GEN STAT. § 15A-1355(c) (allocating credit that can be given to prisoners with
Class C felonies).
29. N.C. GEN. STAT. § 148-13(b).
30. Teasley, 155 N.C. App. at 287, 574 S.E.2d 137 at 140.
31. Id.
32. Id.
33. 5 N.C. ADMIN. CODE 2B.0110(1)(repealed 1995).
34. 5 N.C. ADMtN. CODE 2B.0110(2)(repealed 1995).
35. 5 N.C. ADMIN..CODE 2B.0110(3)(repealed 1995).
36. Teasley v. Beck, 155 N.C. App. 282, 287, 574 S.E.2d 137, 140-41 (2002).
37. State v. Stone, 71 N.C. App. 417, 419, 322 S.E.2d 413, 415 (1984). See State v. Shoe-
maker, 273 N.C. 475, 160 S.E.2d 281 (1968).
38. State v. McCall, 273 N.C. 135, 136, 159 S.E.2d 316,317 (1968). See also N.C. GEN. STAT.
§ 148-13.
39. Teasley, 155 N.C. App. at 292, 574 S.E.2d at 143.
40. Id. at 285, 574 S.E.2d at 139.
4
North Carolina Central Law Review, Vol. 32, No. 1 [2009], Art. 8
https://archives.law.nccu.edu/ncclr/vol32/iss1/8
THE FAIR SENTENCING ACT
ANALYSIS
On remand, if the trial court decides to apply all of Bowden's sen-
tence reduction credits, he could be entitled to immediate release with
no parole supervision. Additionally, a domino effect would occur
amongst prisoners in legal situations similar to Bowden's. Hence, pris-
oners from all over the state would begin advocating for and insisting
on being released from prison with no strings attached.
The Court noted in the opinion that "for reasons unclear to this
Court, the Department of Correction later retroactively changed the
status of [Bowden's] sentence reduction credits from "applied" to
"pending."" 41Based on the current law, no reason need be given to
the judiciary because the decision of whether to apply or not to apply
sentence reduction credits lies squarely in the domain of the Depart-
ment of Correction.42 Therefore, it is quite possible that upon review,
the Department of Correction may determine that the change in Bow-
den's sentence reduction credit status from "applied" back to "pend-
ing" will remain the same.43 If this is the case, no reduction credits
would be applied and Bowden would be forced to serve the remainder
of his eighty-year life sentence."
More importantly, from a public policy perspective, it would be in
society's best interests for the Department of Correction not to allow
Bowden (or any other felons in a similar situation) to accumulate
enough credits to obtain "immediate release" under the FSA. If so,
Bowden, along with many other inmates, will be allowed to walk the
streets with no supervision and no "big brother" system to ensure that
they make a smooth transition back into mainstream America.
The problem lies strictly with the FSA and its wording. The Act
provided that a prisoner shall receive one credit for good behavior for
each day he spends in custody without a major infraction.45 However,
the word "major" is not defined anywhere within the provision.46 Yet,
the language states that it is mandatory that the prisoner receive this
credit (as indicated by the word "shall"). How can the Director of
Prisons be forced to allocate credits to prisoners that will result in
early release when there are no criteria for determining whether the
41. State v. Bowden, 193 N.C. App. 597, 598, 668 S.E.2d 107, 108 (2008).
42. Stone, 71 N.C. App. at 419, 322 S.E.2d at 415.
43. It is important to note that, if this were to occur, it would not be considered ex posto
legislation because Bowden's sentence would not be increased. Bowden would simply be re-
quired to serve out the remainder of his initial sentence.
44. "A sentence of life imprisonment shall be considered as a sentence of imprisonment for
a term of 80 years in the State's prison." N.C. GEN. STAT. § 14-2, See also Bowden, 193 N.C. App
at 599, 668 S.E.2d at 109.
45. Teasley at 286, 574 S.E.2d at 140.
46. § 15A-1340.7 repealed by Laws 1993, ch.538, § 14.
2009]
5
Floyd: The Fair Sentencing Act: Exploring Solutions to Unintended Interp
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120 NORTH CAROLINA CENTRAL LAW REVIEW [Vol. 32:115
prisoner met the applicable standard? Surely, this was one of the rea-
sons the FSA is no longer in existence.47
The only way to find a solution to the problems that the ambiguities
in the FSA provisions have left us with is to determine whether or not
it was the intention of the legislature to vest within the Director of
Prisons the power to drastically reduce the sentences of prisoners. It is
my opinion that this was not the intention of the legislature and,
therefore, is one of the main reasons the Act was repealed. Further-
more, an assessment must be made as to whether the legislature in-
tended for the FSA to cut the sentences of numerous inmates in half,
by making it seemingly mandatory for each person to be given a sen-
tence reduction credit each day. It seems preposterous that the ordi-
nary, reasonable person would believe that such an intention existed.
Here, we have a case in which the bests interests of society and the
most rational interpretation of the provision should prevail against "a
possible" interpretation of the provision. More specifically, the De-
partment of Correction should keep the status of Bowden's credits
and others like him in the "pending" category and not "apply" this
inordinate amount of credits to his sentence. This should be coupled
with a clear articulation by the Court that it appears to not have been
within the vision of the legislature to place such mighty authority in
the hands of the Director of Prisons.
Notably, North Carolina Governor Beverly Perdue is making every
effort to block the release of Bowden and other similarly situated per-
sons. However, the truth of the matter is that the power to make such
a change does not rest with the Governor, but instead it is the legisla-
ture and the judiciary who must work together, yet independently, to
achieve such an outcome.
CONCLUSION
Given the novelty of the issue, the trial court is going to have a
difficult time deciding how to apply sentence reduction credits and the
number of credits an inmate convicted under the FSA is entitled to
receive. The key to making such a decision turns on the judiciary's
analysis of the legislative intent supporting the FSA at the time of its
enactment. It is my opinion that the legislature did not intend for the
Director of Prisons to have unquestionable authority to single-
handedly reduce the sentences of prisoners. Equally as far-fetched, is
the idea that such authority would be mandatory. This type of su-
preme power vested in one individual would undermine the judicial
47. The FSA was repealed and replaced by the Structured Sentencing Act. See N.C. GEN.
STAT. § 14-1.1 (1986) repealed by Laws 1993, ch. 538, § 2.
6
North Carolina Central Law Review, Vol. 32, No. 1 [2009], Art. 8
https://archives.law.nccu.edu/ncclr/vol32/iss1/8
2009] THE FAIR SENTENCING ACT 121
sentencing process and set the stage for abuse of power. Given these
considerations, coupled with societal and public policy concerns, the
court will likely find that the legislature did not intend for the FSA to
be interpreted as Bowden desires; and that the inordinate amount of
sentence reduction credits allegedly received by Bowden should not
be applied to his sentence.
Although one person has brought this issue to the forefront, the
ultimate decision will impact many. The decision will affect all of the
other felons who were sentenced under this Act, and all of the people
those felons will interact with if allowed to be released from prison
with no supervision. The release of prisoners from incarceration
should not be an accidental or unexpected occurrence: it should be a
deliberate and planned result, given at the appropriate time, for those
who have paid his or her debt to society.
7
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The Fair Sentencing Act: Exploring Solutions to Unintended Interpretations of Law

North Carolina Central Law Review

Contents Vol. 32 No. 1

Martin, J. Matthew

The Nature and Extent of the Exercise of Criminal Jurisdiction by the Cherokee Supreme Court: 1823-1835

Levine, Mark A.

An Opiate of the Masses: Religious Gerrymandering of Sacramental Intoxication

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North Carolina Central School of Law

North Carolina Central University School of Law
History and Scholarship Digital Archives
Commencement Brochures Law School Publications
5-1-2009
Commencement Exercises 2009
North Carolina Central School of Law
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Cl1ass f2oq,9
James E. Shepard, Founder
&tu'da~, t J4i 6, 2O_9
7iW94"fl P~al, t A""etC1 h4/
iI&*YO af.m.
4Acetwuh/na
Chance D. Lynch
SBA President
Tonya L. Ford
President
NCCU School of Law Alumni Association
Remarks by Students with Highest Honors
Introduction of the Speaker
Speaker
Mark J. Pickett
Day Program
David B. Currens
Evening Program
Raymond C. Pierce
Dean, NCCU School of Law
Theodore M. Shaw
Co-Chair of the Obama Transition Team
for the U.S. Department of Justice,
and Past Director-Counsel
and President, NAACP Legal Defense Fund
Charge to the Class Joyvan L. Malbon
Class President
J7te 6Ya&sxo oCfJPa JO~d~i
Presentation of Degrees Raymond C. Pierce
Dean, NCCU School of Law
Adrienne L. Meddock
Assistant Dean, NCCU School of Law
R. Steven Douglas
Assistant Dean, NCCU School of Law
b Weceiwional
Welcome
Welcome
1A 6: 20(q
Fares Al Alem R. Ben Harrison
Katiana S. Alexis Sir Ashley J. Harrison
Desmon L. Andrade *+ Yolonda P. Harrison
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+ Nikeita R. Ashe Christopher M. Hensley
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A Mary Carolyn Hackney * Cory Bradley Patterson
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Dameka A. Harrington A Mark J. Pickett
* Aliste Harris *0 Benjamin C. Pierce
+ LaTanya Harris J red Pierce
&< 1diates
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+ Tanisha LaShawn Robertson
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+ Shaquana L. Rudolph
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o Ann M. Shy
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* Kellie Suzanne Southard
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A Summa CumLaude
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+ Alternative Dispute Resolution
Certificate
0 Advanced Alternative Dispute
Resolution Certificate
* Biotechnology and Pharmaceutical
Law Certificate
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The colors of the cords the graduates are wearing symbolize the following:
Gold: Graduating with highest honors (summa cum laude)
Purple: Graduating with high honors (magna cum laude)
White: Graduating with honors (cum laude)
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(two cords signify senior editors)
The following graduates are wearing medallions:
The executive board of the Biotechnology and Pharmaceutical Law Review
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The executive board of the Student Bar Association


Commencement Exercises 2009

Larsen, Zachary C.

The Egalitarian First Amendment: Its History and a Critique on the Grounds of Text, Rights, Negative Liberty, and Our Republican Constitutional Structure

Cook, Gina M.

When the Duty to Provide a Reasonable Accommodation Seems Unreasonable: Accommodating and Managing Employees with Episodic Impairments or Impairments in Remission under the ADA Amendments Act of 2008

Coleman, DeAnna

Foreword

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