In 1973, at age 17, Cumberland County native Larry Stubbs broke into a home and stole $394 worth of property: a table lamp, record player, organ, TV set, electric blanket and a men's suit. Convicted of second-degree burglary, he was sentenced to life in prison.
In 1991, at age 16, Cumberland County native Terrance Wilkerson broke into several homes. Convicted of second-degree burglary, he was sentenced to 50 years. Last fall, Wilkerson made parole.
In 2011, at age 20, Cumberland County native Shaquille Richard broke into a home. Convicted of second-degree burglary, he received a light sentence. Fifteen months later, Richard was released from prison.
The paths of these men into the criminal justice system are similar. But their fates represent three eras of sentencing laws that prison-reform advocates are increasingly calling unfair. Last week at the N.C. Supreme Court, Stubbs made his most recent plea for freedom. Had he burglarized a home today, his lawyer argued, he would have received a maximum sentence of four years—10 percent of the 40 years he has already served.
Stubbs is one of about 1,300 North Carolina inmates serving life sentences for crimes, excluding first-degree murder, committed before 1994. That was the year the General Assembly enacted the Structured Sentencing Act, which reclassified crimes, mandated shorter sentences (particularly for property offenses) and eliminated parole in lieu of post-release supervision.
The act was widely hailed for keeping overzealous judges in check and shielding minorities from disproportionate sentences. But the legislation doesn't apply retroactively, leaving older inmates like Stubbs out of luck.
"The justice system should have said, lets monitor you more closely and give you another shot," said Stubbs' attorney, Sarah Jessica Farber of Raleigh.
As overpopulated prisons have sapped government budgets, there has been a national push to make sentencing reforms retroactive. Most notably, the U.S. Supreme Court last month agreed to consider whether its 2012 ban on mandatory life-without-parole sentences for juvenile killers should be applied to inmates convicted before that year. The court has also thrown out death sentences for mentally ill and juvenile inmates.
A handful of states, too, have made certain laws retroactive. Californians, for example, voted last November to reclassify low-level felonies as misdemeanors, which will help about 10,000 inmates leave prison sooner. New York recently scaled back the sentences for inmates caught up in the 1970s era of stringent drug laws.
"There's no question that the climate for reform is expanding, with increasing bipartisan support," said Marc Mauer, executive director of the Sentencing Project, a Washington, D.C., research and advocacy group. Mauer noted that prominent Republicans like Rand Paul and Newt Gingrich have called for the nation's prison population to be reduced.
But the case for retroactivity is not widely embraced in most state courts, and North Carolina is no exception. The N.C. Supreme Court has continuously blocked attempts to modify sentences. The most significant example is State v. Whitehead, involving a Nash County defendant doing life for a second-degree murder he committed in 1993, the year before Structured Sentencing. In 2011 a trial judge modified his sentence and ordered his release. But in a parallel to Stubbs' case, the state Supreme Court blocked the release and overturned the trial judge's order.
"It is not the role of the judiciary to engage in discretionary sentence reduction," the justices said in their opinion. That is the job of the state Legislature.
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Stubbs, now 59, bears some responsibility for his fate. In 2008 he was released from prison on parole. Less than two years later, he was charged with DWI and forced to resume his burglary sentence. (It should also be noted that Stubbs pleaded guilty to an assault-with-attempt-to-commit-rape charge linked to his 1973 burglary. His 15-year sentence for that crime expired in 1988.)
Still, one could argue that Stubbs was the victim of chronic bad luck. Had the teenager committed his crime outside of North Carolina, he likely would have avoided imprisonment. (The majority of states did not charge 17-year-olds as adults.) It also didn't help that at the time of his crime, North Carolina had the highest per capita crime rate of any state, prompting judges to levy harsher judgments. And if Stubbs had committed his crime eight years later, he almost certainly would have avoided a life sentence; the 1981 Fair Sentencing Act, a precursor to Structured Sentencing, limited a judge's power to impose indeterminate sentences.
Recently, Stubbs had reason to hope for an early release. In 2011, acting as his own lawyer, he argued that his sentence violated the Eighth Amendment's ban on cruel and unusual punishment. He won a review, and in an unorthodox move, Cumberland County Judge Gregory A. Weeks showed mercy. He modified Stubbs' sentence to 30 years with credit for time served, and ordered Stubbs' immediate release. In his order, Weeks cited U.S. Supreme Court case law referencing "evolving standards of decency that mark the progress of a maturing society."
Attorney General Roy Cooper's office quickly lobbied the Court of Appeals to review Weeks' order and to halt Stubbs' release.
Last February the appellate court sided with Cooper's office. It ruled that Stubbs' life sentence, though severe, "allowed for the realistic opportunity to obtain his release," which happened when he was paroled in 2008.
But the court's decision came with a twist. Judge Linda Stephens, while agreeing with her colleagues on the Eighth Amendment issue, declared that the Court of Appeals did not have jurisdiction to review a resentencing case. Stephens' dissent left the door open for Stubbs to appeal to the N.C. Supreme Court.
In the Raleigh courtroom last Tuesday, Farber, Stubbs' attorney, told a panel of five state Supreme Court justices that her client did not deserve to die in prison for a property crime he committed at 17. However, her argument was based not on constitutional standards, but jurisdictional ones.
In sentence-modifications cases, she said, the court of appeals lacks jurisdiction. "There is no road that goes from a trial court's decision to the Court of Appeals. There's a highway that goes right to the Supreme Court."
Daniel O'Brien, a lawyer from Cooper's office, countered that the Court of Appeals had jurisdiction, through its statutory authority "to supervise and control the proceedings of any of the trial courts of the General Court of Justice."
The Supreme Court is expected to rule on the case this year. There are several potential outcomes. In one scenario, the justices could disagree with Judge Stephens on whether the appeals court has jurisdiction, which would keep Stubbs in prison and close his case.
In another scenario, the justices could side with Judge Stephens, but shoot down Stubbs' Eighth Amendment claim, which would lead to the same result.
Farber is hoping for a third outcome: that the justices combine the opinions of Stephens on the jurisdictional issue, and Judge Weeks on the constitutional issue, and order Stubbs' release. Such an outcome, Farber acknowledged, is unlikely. (Four out of the five justices considering the case are Republicans.)
"Ultimately I think these things will be corrected, but that course correction will take time," Farber said.
Her client, however, is more hopeful. "Mr. Stubbs has not really wavered in his belief the courts will do him right and let him go home," said Farber. "And it would be nice to see that belief lived out."
This article appeared in print with the headline "When the punishment doesn't fit the crime"