HABITUAL-OFFENDER LAW RACIALLY BIASED, BLACKS CHARGE

Numbers Are The Proof, They Say; Not So, Say Prosecutors, Others

Velma Thomas turned her anger into action last year after her husband,
arrested on a drug-possession charge, was convicted as a habitual felon and
sentenced to nine to 12 years in prison.

She began to research state statistics since 1995 about the racial makeup
of defendants convicted as habitual felons in the Triad and North Carolina.

The numbers she gathered show that as of April 30, 81 percent of defendants
convicted as habitual felons in Forsyth County were black, and 17 percent
were white. In Guilford County, 80 percent of the defendants convicted
under the law were black and 18 percent were white.

In North Carolina, 74 percent of defendants convicted as habitual felons
were black, and 24 percent were white. The overall prison population in
North Carolina, as of May 31, was 62 percent black and 33 percent white.
Thomas said that the statistics prove her contention, that the law is
unfair because it allows prosecutors to decide whether a defendant will be
charged as a habitual felon.

"I'm not saying that people shouldn't be punished for what they do," said
Thomas, whose husband, Victor, was convicted in May 2001 of felony
possession of cocaine, his fourth felony conviction. "They should be
treated the same way. They (defendants) are being prosecuted for past
criminal records. It is cruel and unusual punishment."

Thomas, 33, a Winston-Salem native, took her statistics and her cause to a
civil-rights lawyer in Greensboro, as well as to the North Carolina NAACP.

They listened.

The National Association for the Advancement of Colored People wants Gov.
Mike Easley and legislators to determine whether the habitual-felon law
discriminates against blacks. Melvin L. "Skip" Alston, the president of the
state chapter, said he discussed the law with Easley and several
legislators during a trip to Raleigh last month.

He said that his group will monitor the use of the law by keeping up with
the racial makeup of the defendants convicted under the statute.

Alston became concerned about the law when he received a letter in May from
Romallus Murphy, a lawyer in Greensboro.

"The race issue jumps out at you," Murphy wrote to Alston.

Murphy said he wants state officials to explain why a disproportionate
number of blacks are being convicted as habitual felons.

"The figures suggest that it has a discriminatory effect on minorities,"
Murphy said.

Tom Keith, the Forsyth County district attorney, said he supports the
habitual-felon law because it keeps violent criminals off the streets and
behind bars.

Keith and David Hall, an assistant district attorney in Forsyth, said they
don't consider the race of criminal defendants when they decide to charge
offenders as habitual felons.

"It is not a big conspiracy to put black people in prison," Keith said. "If
you are a professional criminal, we are going to put a stop to it. We are
going to protect the black community."

The habitual-felon numbers appear to conflict with a study released in
June, which found that minorities and whites with equal criminal
backgrounds are getting similar prison sentences in North Carolina.

The N.C. Sentencing and Policy Advisory Commission, which makes
recommendations to legislators about the state's sentencing laws, conducted
the study.

Susan Katzenelson, the commission's executive director, said that her
agency's study showed that nearly 14.6 percent of those eligible were
actually convicted and sentenced as habitual felons - 13.4 percent of
eligible white offenders and 15 percent of eligible blacks, Hispanics and
Native Americans.

"You just can't say that prosecutors are selecting habitual felons by
race," Katzenelson said.

Still, she acknowledged the "huge minority representation in the courts and
prison system."

Long history

The General Assembly approved the habitual-felon law in 1967. The original
law applied to anyone convicted of four felonies.

At the time, state Sen. Julian Ashbrook, D-Halifax, said that the law was
intended "to deal with those gangsters that come into North Carolina and
habitual criminals who harass people and create death and destruction."

Legislators added provisions for violent habitual felons in 1994 that could
include punishments of life imprisonment without parole. And ever since,
prosecutors have relied on the law to ratchet up sentences for repeat
offenders.

Under the law, an offender can be charged and convicted as a habitual felon
and automatically sentenced under Class C sentencing guidelines - the same
level reserved for the most serious assaults, second-degree rape and
second-degree murder. Depending on the offender's record, sentences in
Class C range from a minimum of five to six years to as much as 11 to 14 years.

As a result, there are now more than 3,000 habitual felons in the state's
prisons, or almost 10 percent of the total prison population.

Alston said he wants Easley to ensure that the 39 district attorneys in
North Carolina are applying the habitual-felon law fairly and are not
targeting blacks. If state officials determine that the law is unfair, then
legislators should repeal it, Alston said.

Community leaders, prosecutors, civil libertarians, sociologists and
criminologists disagree on whether the habitual-felon law discriminates
against blacks. Some say the statistics that show disproportionate numbers
of blacks convicted under the law are misleading because they don't reflect
the social causes behind the trend.

Some black neighborhoods are plagued by poverty, unemployment, a lack of
education, single-parent households, drug use and inadequate housing - all
factors that lead to high crime, they said.

Many blacks in Winston-Salem are aware of the statistics, said Robert
Greer, a founder of a community group called Black Men and Women Against
Crime, and a member of the Coalition for Drug Prevention.

Protects everyone

The habitual-felon law, Greer said, doesn't discriminate against blacks,
because it protects every resident.

"The law should be for all of us," he said. "If they (offenders) haven't
learned by the third time, you should throw the book at them."

When young blacks are convicted of their first and second felonies, they
find it difficult to get jobs after they are released from prison, Greer
said. Many eventually turn to drug dealing as a way to support their
families. Others sell drugs because of the lure of quick money, he said.

"A lot of them get more attention when they are locked up than they do when
they are out on the streets," Greer said. "A lot of them are not asking for
pity. When they get caught, they know they will have to do their time."

The issues behind the law are complex, and using racial bias to explain the
disproportionate statistics for blacks and whites would be wrong, said Earl
Smith, a sociology professor at Wake Forest University.

There is not enough evidence to show that race is a factor, Smith said.

"What we do know from national samples is that race, class and gender do
factor into how prosecutors have made decisions on sentencing," Smith said.

Others, however, remain convinced that the law is used unfairly toward blacks.

The racial disparity in the numbers of the inmates convicted as habitual
felons is part of the overall bias against minorities in the state's
criminal-justice system, said John Boddie, a Greensboro lawyer and the
board president of the N.C. chapter of the American Civil Liberties Union.

The law targets low-level drug dealers for long prison sentences, Boddie said.

"I run into people who are shocked when they learn about the racial
disparities in drug sentences," Boddie said. "Unfortunately, there are not
a whole lot of white people who know about this."

Many people support the habitual-felon law because "they care about their
streets being safe and their children being safe," Boddie said. "We are
spending all of this money to keep people in jail for nonviolent offenses."

Studies offer different views on whether race is a factor in how
habitual-felon laws are applied across the United States.

A 1998 study at Western Michigan University and Florida State University
showed that race was a factor in Florida's habitual-offender law.

"For drug possession and drug dealing, blacks are 2.7 times more likely to
be sentenced as habitual than non-blacks," the study said. "For drug
trafficking, this difference is more than six times."

As of May 31, Forsyth County leads the state with 409, or 13 percent, of
all convictions of habitual felons for this year, statistics show. Guilford
County is second with 302, or 9 percent, of the convictions. Mecklenburg
County is third with 269, or 8 percent, of the convictions.

There were no available figures for the total number of people convicted
under the law since 1967.

Reviews pool of cases

Hall keeps 10 notebooks with the cases of offenders who were eligible for
habitual-felon status. He reviews a pool of cases every week to decide
whether the defendants should be prosecuted as habitual felons.

Hall said he consults with investigators with the Winston-Salem Police
Department about the offenders before he decides whether to prosecute them
as habitual felons. Black defendants make up 85 percent of the cases that
are rejected for habitual-felon status, Hall said.

Defendants who are repeat violent offenders or low-to mid-level drug
dealers are targeted as habitual felons. If the offenders are addicts, they
are not prosecuted as habitual felons, but typically referred to
drug-treatment programs, Hall said.

Habitual offenders in Winston-Salem mostly target blacks as their victims,
said Keith, the Forsyth County district attorney.

Hall and Keith credit the law as a deterrent. From 2000 to 2001, for
example, violent crime decreased 20 percent in Forsyth County, they said.

Regardless, Alston said that Keith and other district attorneys should use
the law to convict more white defendants who are repeat offenders.

"He (Keith) needs to protect the white community also," Alston said. No
prosecutor will admit that the law discriminates against blacks, Alston
said, but "the proof is in the facts. The statistics show the unfairness of
the law."