Explained: Sentencing

Explained is an occasional series from the Durham DA’s Office providing information and context about the court process.

In North Carolina, sentencing in criminal cases is done in accordance with Structured Sentencing laws that have been in place since 1994. These laws guide the type and length of sentence a person convicted of a crime receives, based on current offense and prior criminal history.

This post describes how Structured Sentencing works and the role the DA’s Office has in the sentencing process.

What is Structured Sentencing?

Structured Sentencing was developed by the North Carolina Sentencing and Policy Advisory Commission, which was created in 1990 to revise the state’s sentencing laws. At the time, North Carolina’s prisons were severely overcrowded — fueled by rising crime rates, increased drug enforcement particularly in communities of color, and mandatory minimum prison sentences for drug crimes. According to the Commission, it developed Structured Sentencing guidelines to ensure sentences are proportionate, consistent, and true to the time a person will actually serve, while reserving prisons for more serious offenses.

The Commission categorized criminal offenses into different classes and created charts that provide judges with a range to choose a sentence from, based on the offense class and the defendant’s prior record level.

How is a sentence determined?

Sentences are guided by sentencing charts, sometimes called punishment grids. There are separate sentencing charts for misdemeanors and felonies.

Down the left side of the chart are crime classes:

• Felonies are categorized as Class A through Class I. First-degree murder is the only class A felony. Under Structured Sentencing, some different sentencing rules apply for felony sex and drug trafficking offenses.
• Misdemeanors are categorized as Class A1, 1, 2, or 3 — with A1 being the most serious.

Along the top of each chart is prior criminal record level. A person’s prior record level is calculated using a point system. More prior convictions — and more serious convictions — will result in a higher prior record level.

The first step in determining a sentence is to find where the relevant crime class and prior record level meet in the middle of the chart.

For felonies, each cell in the chart contains three sentencing ranges: A presumptive (or normal) range, a lower mitigated range and a higher aggravated range. Each range refers to the minimum number of months a person would be ordered to serve (a different chart lists a corresponding maximum number of months for each minimum).

During sentencing, attorneys may present evidence of specific mitigating and aggravating factors that are listed in state law. The judge takes those factors into consideration, decides what range is most appropriate, and selects a minimum number of months. Judges can also find that “extraordinary mitigation” is warranted by exceptional circumstances and choose a sentence lower than the mitigated range, but this is uncommon.

Examples of mitigating factors include:

• The defendant was very young when the crime was committed.
• The defendant’s mental condition reduces his culpability.
• The defendant has accepted responsibility for the crime.

Examples of aggravating factors include:

• The victim was very young or very old.
• The crime was committed for the purpose of evading arrest.
• The defendant committed the offense while on pretrial release.

The chart for misdemeanors is similar to felonies — with crime class along the side and prior record level along the top. However, each cell contains a single range from which the judge chooses a single number of days for the person to serve. There are no mitigated and aggravated ranges and no minimums or maximums.

Often, a judge will state at sentencing the maximum possible penalty a defendant faces. Usually this refers to the maximum possible sentence for the crime class, not for a specific defendant, his individual prior record level, and the unique facts of his case. It may be unlikely or even impossible for a particular defendant to receive that maximum punishment.

How are sentences served?

There are three types of sentences:

· Active (A): Incarceration, usually in the state prison system. Active sentences for misdemeanors are commonly served in local jails.

· Intermediate (I): Supervised probation with at least one of several conditions imposed, like house arrest, drug treatment court, or a “split sentence” divided between prison and a probation period.

· Community (C ): Supervised or unsupervised probation. This could (but isn’t required to) include conditions such as community service, electronic monitoring, or substance use treatment.

The Sentencing and Policy Advisory Commission publishes annual reports on sentences imposed statewide here.

One, two or all three types of sentences may be available to the judge, depending on the case and prior record level. This means that in some situations — like serious felonies — an active sentence is the only option and in others — like lower-level misdemeanors — an active sentence may not be legally available.

For felonies, the defendant can earn time off of the maximum sentence imposed, but must serve at least 100 percent of the minimum sentence and 85 percent of the maximum. If an individual was detained pretrial on the charges, that time will be credited toward their sentence.

Sentences for individual charges are often ordered to be served at the same time (concurrently). This means that if a charge with an equal or shorter punishment is dismissed — for example as part of a plea arrangement — the sentence isn’t necessarily reduced because the most serious charge will ultimately determine the length of the sentence. In egregious cases or cases with multiple victims, a judge may order sentences be served consecutively — meaning back-to-back.

Under Structured Sentencing, life sentences in North Carolina refer to a person’s natural life, rather than a specific term of years.

Structured Sentencing eliminated the possibility of parole for offenses committed after 1994. Instead, people convicted of all felonies after 1994 are released to post-release supervision once the required sentence is completed.

What is the role of the district attorney in sentencing?

While judges sentence people in the criminal legal system, prosecutors also have significant influence over sentencing because of the discretion they have in deciding what criminal charges are brought to court. Reducing or increasing charges can shift what sentence a person may face.

As part of a plea arrangement, the State and the defense negotiate and agree that the defendant will plead guilty to certain charges. In some cases, they may also agree to a specific sentence. Or, an “open plea” may be entered, meaning the defendant has agreed to plead guilty to certain charges but it’s up to the judge to determine the sentence in his or her discretion using the process described above. In an open plea, the State and the defense may make a sentencing recommendation. In either situation, the judge must accept the plea for it to be entered.

If a person is convicted by a jury at trial, prosecutors may also make a recommendation before the judge determines the sentence.

Victims in crimes against a person and felony property crimes have the right to be reasonably heard at sentencing. Crime victims and the families of homicide victims may request to address the court before a sentence is handed down.

Find more information in the Sentencing and Policy Advisory Commission’s Citizen’s Guide to Structured Sentencing.