Pubdate: Sun, 7 Jun 2009
Source: News & Observer (Raleigh, NC)
Copyright: 2009 The News and Observer Publishing Company
Authors: Joseph Neff and David Raynor


Lawmakers Won't Touch a Popular Law, Even If It Would Save $190
Million Over Five Years

North Carolina's habitual-felon law is powerful: A three-time criminal
who breaks into a parking meter or has a crack pipe with cocaine
residue can be sentenced as if he were a rapist.

It is expensive: These longer sentences add an average of$195,000 in
prison costs for each habitual felon, a News & Observer analysis
shows. Since the law took effect in 1994, taxpayers have committed an
additional $1.5 billion to house habitual felons -- and an additional
$264 million to build prisons for them. And it is untouchable at the
General Assembly. District attorneys and sheriffs have squashed all
attempts to change it by painting opponents as coddlers of criminals,
said former Rep. Joe Kiser, a Republican and the former sheriff of
Lincoln County.

"I blocked it every time," Kiser said. "I'd say, 'Here we go, soft on
crime again.' " Being tough on crime has been hard on the state
budget, and now that the state has a $4.5billion shortfall, finding a
path toward fiscal health has seldom been so critical. In the past,
the General Assembly has been unwilling to take tough stands.
Legislators are afraid to end goodies for powerful industries, kill
pet projects or make hard calls on crime issues that provide fodder
for attack ads.

The financial crisis, the worst since the Great Depression, had been
expected to force state leaders to evaluate everything government
does. Instead, Gov. Beverly Perdue and legislators have proposed
simpler across-the-board cuts in most programs and largely stayed away
from fundamental change and issues that can roil particular interest
groups. The state still spends $8 million a year so that booster clubs
can pay discounted in-state tuition rates for out-of-state athletes.
Dirt roads continue to get paved at roughly $100 million a year, while
urban areas struggle with crumbling and clogged highways. Lawmakers
continue to provide $1,950 annual grants to North Carolinians who
attend in-state private colleges, regardless of financial need or
academic merit. The grants cost $56.8 million in the 2007-08 fiscal

'I say lock them up' In the case of habitual felons, changing the law
would bring gradual but significant savings. If the state stopped
sentencing people to eight to 10 years for low-level offenses, it
would save roughly $5 million in the first year. The savings would
compound each year, saving the state a total of $190 million after
five years.

Since the law was passed, the prison population has grown steadily,
from 27,052 in June 1995 to more than 41,000 in 2009.

In that period, the Department of Correction has been on a
construction binge, opening 20 prisons that hold 16,424 inmates.
Building prisons is not cheap; it costs $66,000 per inmate to build a
medium-security prison and $28,000 a year to house each prisoner.

Despite its costs, the habitual-felon law has been unchanged since it
was approved 15 years ago.

Judges pronounce the sentences, but district attorneys alone decide
whether to charge offenders as habitual felons. Criminals who have
been convicted four times deserve lengthy lock-ups, said Tom Horner of
Wilkes County, president of the N.C. Conference of District Attorneys.
"Are you willing to put these people on the street and let them kill
somebody?" Horner asked. "This person has had at least three bites of
the apple. I say lock them up."

In mid-May, law enforcement officials packed a House committee meeting
to oppose any change in the law.

"They say, 'You're turning out criminals,' and the debate spins out of
control," said Rep. Phil Haire, a Sylva Democrat.

Haire and other critics say the habitual-felon law has picked up few
violent criminals. Instead, the law has packed prisons with more than
5,000 offenders whose main problems are drugs and alcohol. They take
up space that could be used for violent or more dangerous felons.

"Criminals are mean or lazy or covet their neighbors' property and
need punishment," Haire said. "Addicts are not criminals, per se. They
need to be treated, and prison is not going to help if they have an
addiction problem." 'It shocks the conscience' Jerry Adams was a
longtime drug addict from Fayetteville with a history of larceny, drug
possession and breaking and entering.

In 2000, police found two plastic baggies in a truck Adams was
driving. Tests by the State Bureau of Investigation indicated the
presence of cocaine, but the amount was so small the SBI could not
weigh it. Prosecutors described Adams as a nonviolent drug user.

Superior Court Judge Gary Locklear asked the jury to stay in the
courtroom to witness the sentence the habitual-felon law demanded: 11
to 14 years. "And the folks who can really cause a change, I don't
believe they're sincere in what they're doing," Locklear said as he
sentenced Adams. "They keep building more prisons, and what do we
have? We've got more drug addicts." Adams admitted that he shoplifted
or stole lawnmowers from sheds to get money for drugs and alcohol, but
he said he always worked, either at his family's auto body shop or on
construction jobs.

"I'm an addict," he said. "I ain't never hardly been in a fight in my
life." Keeping Adams in prison for 11 years instead of the eight
months he would have gotten for simple cocaine possession will cost
taxpayers an additional $290,000. Occasionally, judges find the law so
distasteful that they find a way around it. In 2005, a jury in Kinston
found Michael Anthony Starkey guilty of possessing 1/10 of a gram of
cocaine -- the smallest amount that can be detected by scales at the
State Bureau of Investigation. Starkey, whose criminal record included
breaking and entering, forgery and cocaine possession, had been
working as an undercover informant for the Lenoir County Sheriff's

When the district attorney brought a habitual-felon indictment,
Superior Court Judge Ernest Fullwood had no choice but to give Starkey
a sentence of 70 to 93 months.

"It shocks the conscience," Fullwood said in court. "It's unfair. It's
inequitable, and it's wrong."

Fullwood listed crimes that would pull an identical sentence:
malicious castration, stealing $100,000, robbing a bank or holding up
someone with a shotgun. "Had he pulled somebody off the street and
committed second-degree rape, he couldn't have gotten any more time,
not another day," Fullwood said in court. "He couldn't have gotten any
more time if he had committed an act of terrorism against the county
of Lenoir and contaminated the water supply." Fullwood took an
extraordinary step: He ruled that the sentence he had just handed down
was cruel and unusual punishment. He threw out the sentence and gave
Starkey eight to 10months for cocaine possession. "It was the right
thing to do," Fullwood, now retired, said in an interview. "This man
had no record to speak of, as criminal records go." Starkey, who had
already spent months locked up awaiting trial, left court that day and
resumed work with the N.C. Department of Transportation for two years,
but he is now unemployed. According to court records, he hasn't been
arrested since. He hasn't even received a traffic ticket. "Nothing,
zero, zip, nada," he said. "I've been having trouble finding a job,
but I'm blessed, and I stay out of trouble."

District attorneys decide To qualify as a habitual felon, an offender
must be convicted of a felony, then commit another and be convicted,
then commit a third felony and be convicted and then commit a fourth
and be convicted. The district attorney can decide after the fourth
charge whether to seek a habitual-felon indictment from a grand jury.
If the offender is convicted of that fourth charge, the judge must
sentence him as a habitual felon. The punishment for a habitual felon
is more severe than for arson, armed robbery or burglary. Only murder,
first-degree rape and making a nuclear weapon carry longer sentences.
The actual fourth offense, whether armed robbery or shoplifting, has
no bearing on the sentence. The fourth offense of most habitual felons
is a lesser property or drug crime, an N&O analysis of records
involving all such cases since the start of 2004 showed.

Seventy-three percent were convicted of the lowest-level felonies,
such as drug possession, larceny, breaking and entering or possession
of stolen goods. Only 5 percent were convicted of what the state
considers serious violent crimes, such as armed robbery, burglary,
kidnapping or assault with a deadly weapon causing serious injury.

Because the habitual-felon charge is at the discretion of the district
attorney, there's a wide discrepancy among prosecutorial districts. Wake
County has almost four times as many people as Buncombe County, but the two
counties have almost exactly the same number of habitual felons in prison.
Or compare Charlotte and Winston-Salem: Mecklenburg County has more than
twice the population of Forsyth County, but it has fewer than half as many
habitual felons in prison.

Moore County, home to Pinehurst and horse farms, has the highest rate
of habitual felons in prison. It is policy in Moore County to indict
every eligible offender as a habitual felon, according to a 2000
affidavit from District Attorney Garland Yates.

It's not unusual for substance abusers in Moore County to get
sentences of six to 10 years for trace quantities of drugs.

Keith Jamerson was convicted in Moore County of possession of 1/10 of
a gram of cocaine. Jamerson's prior felonies included breaking into a
car, larceny, receiving stolen goods and selling marijuana.

As he sentenced Jamerson to 80 to 105 months in 2002, Superior Court
Judge James Webb complained that the legislature had handcuffed judges
by forcing them to impose harsh sentences.

"I cannot believe it is the intent of the General Assembly for
somebody to go to prison in this particular circumstance," Webb said.
"It's going to cost the taxpayers of North Carolina to keep the
defendant in prison for about seven years $172,283. It's just
inconceivable to me that that's what the legislature intends."

Jamerson is scheduled to be released in December 2011. No effect on
crime The habitual-felon law emerged from an effort in the early 1990s
to restructure the state's sentencing laws. It was controversial from
the beginning. The chairman of the N.C. Sentencing and Policy Advisory
Commission thought, in fact, that what has become known as "structured
sentencing" would eliminate any need for a habitual-felon law.
Chairman Tom Ross, then a Superior Court judge, pointed out that the
new sentencing laws would take into account an offender's prior
record: A clean record would bring less punishment, while a lengthy
crime sheet would bring more. Others warned that a huge pool of
low-level offenders would be eligible for habitual-felon status and
could clog the prisons.

Prosecutors and others, however, won the day by arguing that a
habitual-felon law would be the only weapon available to deal with
career criminals terrorizing the community.

In the first few years, fewer than 200 habitual felons were sent to
prison each year. The numbers rose sharply in the late 1990s as
prosecutors spread the word to one another on how to use the law.

The N.C. District Attorneys Association started training sessions on the
habitual-felon law at its conferences. One how-to guide from October 2000
titled "Prosecuting Habitual Felons: A Practical Approach" began: "Why
prosecute habitual felons? The most obvious reason is you can reduce the
crime rate in your district."

Heavy use of the habitual-felon law does not appear to reduce crime.
Since 1997, the violent crime rate in Buncombe and Forsyth counties
has decreased about 23percent in each county, in line with the state
average. The violent crime rate in Mecklenburg decreased 42 percent,
almost twice as much. Buncombe and Forsyth use the habitual-felon
statute five times as much as Mecklenburg.

The property crime rate wasn't affected, either. That rate fell 16
percent across the state. Heavy users such as Buncombe and Moore fell
at the state rate, as did Mecklenburg.

The property crime rate fell 27percent in Forsyth and 41 percent in
Wake County. Forsyth uses the habitual-felon statute four times as
often as Wake. 'Legislators are cowards' David McFadyen was a district
attorney from Craven County in 1992 when he argued for the
habitual-felon law while on the sentencing commission. Now in private
practice in New Bern, McFadyen said the law must be used wisely. "You
have to review their record and see if the hammer is appropriate,"
McFadyen said. "Are they a danger to the community? ... It's not
appropriate in every case. The law may need to be tweaked."

Bruce Cunningham, a Southern Pines lawyer who represented Keith
Jamerson, has been arguing for a decade that the law needs to be
changed. "Legislators are cowards," Cunningham said. "Habitual felon
is a politically charged but meaningless label."

In 2002, Cunningham lobbied judges, legislators and members of the
sentencing commission for changes and wrote letters that included
examples of long sentences for nonviolent offenders.

He received a handwritten response from Rep. Joe Hackney, a Chapel
Hill Democrat who now is the House speaker.

"The House these days is an overwhelmingly conservative place,"
Hackney wrote. "I suspect the terrible sentences you sent would be
applauded by a substantial majority."

Repeat low-level offenders At the same time North Carolina passed the
habitual-felon law, the General Assembly passed a law aimed at violent
repeat offenders, the type of criminal the public fears most.

Violent habitual felons get mandatory life sentences when convicted of
a third serious violent crime. There are very few violent repeat
offenders who fit this category; only 30 since 1994. Meanwhile, the
prisons house thousands of repeat low-level offenders: 7,703 habitual
felons have been convicted since 1994.

Another likely entrant is Jaymee Reavis of Winston-Salem, a
32-year-old heroin addict with a lengthy history of drug convictions.
She was arrested after her mother found a spoon and hypodermic needles
and called Reavis' probation officer. Tests revealed a trace amount of
heroin, and Reavis has been indicted as a habitual felon.

"I'm set to take a pay cut so we can put this girl in prison for
15years," said Marilyn Ballard, a public defender in Forsyth County.
"She's going to spend more time in prison than my armed robbers."
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