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Pleading for Prison: NC laws force some offenders to serve long-term sentences in county jails

NC lawmakers changed DWI laws to crack down on habitual drunk drivers, but this increase in public safety may come at an unexpected cost.

Laura Fortenberry, a 17-year-old native of Gaston County, North Carolina, was on her way home to look after her younger siblings on a Sunday night in July of 2010.  Unfortunately, 28-year-old Howard Pasour was also on the road that night, driving while intoxicated behind the wheel of his Jeep.  Pasour, speeding and weaving through traffic, crossed the centerline and slammed into the car with Laura and her two friends inside.  Laura was killed as a result of the crash and her friends sustained serious injuries.

Howard Pasour was charged with, and later pled guilty to, second degree murder and driving while impaired (DWI).  This was not the first DWI conviction on Pasour’s record; it was actually his fourth.  After his third DWI, Pasour was required to wear an ankle-monitor, which had been removed several months before the crash.  North Carolina law at the time “prohibit[ed] judges from putting the monitoring devices on serious DWI offenders for more than 60 days.”   Pasour’s troubling criminal history led parents across the state to wonder why he was still on the streets and to think that Laura would still be alive if he would have been in jail for the previous three DWIs.

With a DWI-related fatality rate higher than the national average, North Carolina has become notoriously tough on drunk driving offenses.  After the death of Laura Fortenberry, North Carolina lawmakers decided to crack down even further on those who repeatedly choose to drink and drive.  In response to Laura’s death, Session Law 2011-191, “Laura’s Law,” was passed.  The purpose of the law is to “increase the punishment for DWI offenders with three or more grossly aggravating factors, to authorize the court to require continuous alcohol monitoring for certain offenders, and to increase the court costs for DWI offenders.”

As a result of the tragedy of Laura’s death, Laura’s Law increases the penalties and jail time for repeat DWI offenders.  Before Laura’s Law was passed, the “most severe sentence that could be imposed for any of the impaired driving offenses sentenced pursuant to G.S. 20-179 is a Level 1 sentence, which carries a maximum term of imprisonment of 24 months and a maximum fine of $4,000.”  Now, an aggravated Level 1 DWI carries a penalty of “immediate license suspension for 30 days with the possibility of limited driving privileges after 10 days, up to a $10,000 fine, between 12 months and 36 months in jail, monitored [abstention] from alcohol for 4 months after prison release, and substance abuse assessment.”  This is where cases like Howard Pasour’s will fit in in the new DWI sentencing scheme.

Passed the same year as Laura’s Law, the Justice Reinvestment Act also has a significant impact on DWI offenders.  Among other things, the Act requires most misdemeanants to serve their sentences in jail.  The Act “requires that all felony sentences and misdemeanor sentences requiring confinement of more than 180 days be served in DOC [Department of Correction]” and “retains the rule that sentences of 90 days or less should be to the local jail.”

Despite the changes that Laura’s Law made to the DWI sentencing scheme, “the rules for service of a DWI sentence continue unchanged.  Under G.S. 20-176(c1), a DWI sentence must be served in the jail unless the defendant has previously been jailed for a Chapter 20 violation, or unless it is the defendant’s second or subsequent DWI.”  As the ABA Journal noted: “In a later session, lawmakers amended the law to send everyone convicted of a misdemeanor to jail — which includes people sentenced under Laura’s Law.”

“[T]hese drunk drivers would be the longest serving jail inmates in modern history.”

The interplay of Laura’s Law and the Justice Reinvestment Act has led to “a growing number of DWI offenders serving multi-year sentences in North Carolina’s jails, snagged between a reform that cut the prison population and a popular law that cracked down on repeat drunk drivers.”  As reported by the ABA Journal, “more than 170 people with DWI sentences of two years or more are serving their time in the state’s jails, which were built to detain people awaiting trial or serving short sentences.”  Gregg Stahl, director of government relations at the North Carolina Sheriffs Association, “realized that these drunk drivers would be the longest serving jail inmates in modern history.”

Often used interchangeably, jail and prison are two entirely different institutions.   The most basic difference between the two is the length of active sentences they are designed to accommodate.  “Jails are usually run by local law enforcement and/or local government agencies, and are designed to hold inmates awaiting trial or serving a short sentence.”  Prisons, on the other hand, are “typically operated by either a state government or the Federal Bureau of Prisons,” and are “designed to hold individuals convicted of more serious crimes,” or for long-term incarcerations.

As applied to the issues discussed above, the most pertinent distinctions between jails and prisons are the programs offered within the two institutions.  “Unlike prisons, jails have little or no programs for drug treatment, education and job training, and they lack outside yards with basketball courts, ball fields and weight racks.”  Persons housed in jails, as opposed to state prisons, have no access to law libraries and do not even get to go outside.  “Because prisons are designed for long-term incarceration, they are better developed for the living needs of their populations.  Jails, on the other hand, tend to have more transient populations and less well-developed facilities.”

According to his interview with the ABA Journal, Hewett “wants to go to prison” because “there, he might have a shot at fresh air, sunshine and substance abuse treatment.”

On January 26, 2018, the ABA Journal reported on the story of Brandon Hewett, a 38-year-old man serving a nine-year sentence for three Driving While Impaired convictions in the Brunswick County Jail.  Hewett, a self-proclaimed alcoholic with a “20-year record of alcohol and traffic violations,” will not have access to any substance abuse programs while serving his sentence, even though it was ordered by the judge as part of his sentence.  His time outside is limited to “a few minutes a day when he helps unload meals from a truck.”  Hewett describes the treatment he receives in the county jail as “inhumane” and states that “they treat [him] like a murderer.”

According to his interview with the ABA Journal, Hewett “wants to go to prison” because “there, he might have a shot at fresh air, sunshine and substance abuse treatment.”  When asked about Hewett’s situation, the sentencing judge acknowledged that “serving nine years in jail is tough,” but stated that “his hands were tied” because “the law requires all people convicted of misdemeanors to go to jail.”

As the habitual nature of these crimes suggests, the rate of recidivism for DWI offenders is high.  Because of this, people serving an active sentence for multiple DWI convictions could greatly benefit from substance abuse counseling during their incarceration.  Not only would the offenders benefit, but also the public at large.  By working to reduce the likelihood of recidivism by addressing the core issue of substance abuse, North Carolina’s goal of keeping the roads safe would be better served.  This can be achieved through the introduction of substance abuse programs in jails, as Guilford County and a few others have done, or by revisiting the effects of Laura’s Law and the Justice Reinvestment Act on DWI offenders.

Cydney Joyner
About Cydney Joyner (15 Articles)
Cydney Joyner is a third year law student and serves as an Associate Editor for the Campbell Law Observer. She is originally from Winston-Salem, NC. She attended undergrad at Salem College, a women's college in Winston-Salem, where she studied Political Science, International Relations, and Religion. During the summer following her first year of law school, she worked at the Buncombe County District Attorney's Office in Asheville, NC. Her legal interests are criminal law, international law, and constitutional law. This summer Cydney is interning at the U.S. Attorney's Office for the Western District of NC in Asheville.