REPEAT OFFENDERS MAY GET LIGHTER SENTENCING IN N.C.

Raleigh -- To relieve at least some of the pressure for more prisons, the
state Sentencing Commission recommended this month that legislators relax
sentencing rules for a growing segment of the prison population - habitual
felons.

But the state's district attorneys say such a move would shorten sentences
for precisely the criminal who needs to stay in prison longer: the repeat
offender who can't turn his life around and commits serious crimes over and
over.

"We're using the habitual felons to focus on the 6 percent of people who
give us 60 percent of our crimes, and these people are going to turn them
loose," said Forsyth County District Attorney Tom Keith, who argued against
the recommendation before the Sentencing Commission. "They'd get out in two
years or less instead of 10 years or more."

Since the early 1990s, prosecutors have relied on the state's
habitual-felon law to ratchet up sentences for repeat offenders. A habitual
felon is one who has been convicted of at least four felonies, ranging from
lower-level drug and property crimes to embezzlement to assault to rape to
murder.

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

As a result of their longer stays, there are now more than 3,000 habitual
felons in the state's prisons, or almost 10 percent of the total
population. Those sentenced at Class C account for more than 20 percent,
according to the N.C. Sentencing Commission.

"They stay longer and longer - so they soak up bed space," said Keith.

As part of a study requested by legislators last year to reduce the
pressure for more prisons, the Sentencing Commission voted this month to
recommend that the state relax sentencing guidelines for habitual felons.

According to the commission's analysis, 65 percent of habitual felons are
classified as "habitual" after they commit lower-level drug and property
crimes that would normally warrant less than two years in prison.

Rather than sentence those criminals under the same Class C guidelines as
second-degree murder, the commission recommends that habitual felons be
sentenced at three sentencing levels higher than they would otherwise face.

Instead of being sentenced at Class C and facing an average sentence of
more than eight years, for example, a habitual felon convicted of
possession of 1 gram of cocaine would be sentenced at Class F for or an
average sentence of 23 months.

"It's saying, 'They are habitual - let's punish them more severely.' But
it's just making it proportionate to the underlying felony," said Susan
Katzenelson, the commission's executive director.

The Sentencing Commission projects that over 10 years, the reduced
sentences for what are considered low-level drug and property crimes would
save 1,879 prison beds.

Assuming 900 beds per prison, "It would save, in the long run, not building
two prisons," said Katzenelson, who noted that studies have found that
crime recidivism tends to increase with the length of an offender's stays
in prison. "It's a matter of budget - can we afford to keep them locked up
for a long time?"

The latest close-security prisons that the state plans to buy under a
lease-purchase arrangement cost almost $75 million apiece and will cost $17
million a year to run, according to Correction Secretary Theodis Beck.

Defense attorneys support the move to reduce sentences for lower-level
felons. H. Gerald Beaver, a lawyer from Fayetteville, argued before the
Sentencing Commission for the relaxed guidelines on behalf of the N.C.
Academy of Trial Lawyers.

He offers the example of a former drug addict with three felony convictions
that might have occurred 10 to 15 years ago, but who falls off the wagon
and is arrested with a gram of cocaine.

"The next thing you see him facing 12 years in prison for a simple
possession charge that used to be a misdemeanor in North Carolina," Beaver
said. "It flies in the face of what we've always thought, which is to let
the punishment fit the crime."

Increasing a sentence by three categories under the state's guidelines "is
a very significant rise in the penalty," he said.

"It just doesn't make sense to punish every (habitual) felon as a Class C
felon," he said. "Any law that is subject to that kind of potential abuse -
for someone to say one size fits all . is just a ludicrous statement."
Beaver and other trial lawyers say that district attorneys frequently use
the threat of prosecution as a habitual felon to force guilty pleas.

"The habitual-felon law should not be used as a plea-bargaining tool. It
should not be used to force a plea in a case that really should be tried,"
he said.

State Sen. Frank Ballance, D-Warren, a defense attorney who sits on a
justice and public safety budget subcommittee in the state Senate, agrees.
"What some prosecutors are doing is using that as a hammer over the heads
of some people who might even be innocent," Ballance said. "So the guy
says, 'I'll take one year and go on.'" But Keith, whose office sent more
habitual felons to state prison last year than any other county, cites
several real-life examples of how the new guidelines might work. They include:

. A felon who was convicted of voluntary manslaughter, possession of a
weapon on school property and later cocaine possession and received a
sentence of 58-79 months under the existing habitual-felon law. "Under
theirs, he would get about 13-16 months," Keith said.

. A chronic woman-beater who was convicted of felony assault and received a
sentence of 151-191 months under existing guidelines. Under the proposed
guidelines, he would spend 25 months in prison, Keith said. . A young man
who with his brother had accounted for more than 1,000 police reports and
was convicted of shooting into occupied property, involuntary manslaughter
and selling cocaine, receiving a sentence of 114-146 months under existing
guidelines. "He would have pulled 15 months under their structure," Keith
said. Keith ties the stiff penalties even for repeat drug offenders to a
reduction in the state's violent-crime rate.

"The state's prosecutors now fear such a weakening in the punishment of
habitual offenders would dilute one of the main reasons for the decline in
the crime rate. North Carolina prosecutors contend the drop in violent
crimes is a result of putting violent criminals in jail for longer periods
of time," he told the Sentencing Commission.

And despite his support for the relaxed sentences, Ballance isn't sure it
will win support from legislators this year during the General-Assembly's
election-year short session. "I don't know if that's going to get through,"
he said. "In the short session, people run for office."