Glenn v. Johnson
| Decision Date | 13 May 1985 |
| Docket Number | No. 84-6448,84-6448 |
| Citation | 761 F.2d 192 |
| Parties | Bennie Lee GLENN, Appellee, v. Walter T. JOHNSON; Jane G. Greenlee; Joy J. Johnson; Wymene Valand; Joseph Palmer, Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
James Peeler Smith, Asst. Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen., Raleigh, N.C., on brief), for appellants.
Charles T.L. Anderson, Apex, N.C. (North Carolina Prisoner Legal Services, Inc. on brief), for appellee.
Before WINTER, Chief Judge, MURNAGHAN, Circuit Judge, and MERHIGE, United States District Judge for the Eastern District of Virginia, sitting by designation.
A wrong turn near the outset of a journey usually extends the trip unnecessarily. That is what has happened here. Bennie Lee Glenn was convicted in 1972 of several crimes and sentenced consecutively to 115 years for assault (five years), armed robbery (thirty years) and kidnapping (eighty years). The applicable statute governing parole eligibility, now repealed, was N.C.Gen.Stat. Sec. 148-58, which provided:
All prisoners shall be eligible to have their cases considered for parole when they have served a fourth of their sentence, if their sentence is determinate, and a fourth of their minimum sentence, if their sentence is indeterminate; provided, that any prisoner serving sentence for life shall be eligible for such consideration when he has served 10 years of his sentence. Nothing in this section shall be construed as making mandatory the release of any prisoner on parole, but shall be construed as only guaranteeing to every prisoner a review and consideration of his case upon its merits.
A sentence of 115 years is determinate. Glenn's parole eligibility date should, therefore, have been 28 3/4 years from the date of his sentence.
The North Carolina Parole Commission, in the face of clear and unambiguous language, tried to approach the statute "logically." The logic, however, was fatally flawed. The commission reasoned that a life sentence would be at least as serious and, in virtually every case, more serious than any sentence for a term of years. Operating from that premise, the Commission decided that life had to receive the longest period before parole eligibility could arise and, consequently, it would be improper, and unintended by the legislature, for parole eligibility to be deferred after the prisoner has served ten years of his sentence, regardless of the aggregate number of years comprising the sentence. Accordingly, the Parole Commission adopted a rule which deemed prisoners parole eligible after serving ten years, even though the aggregate sentence was more than forty years (in this case 115 years).
The Parole Commission's motivation was doubtless very humane. It also, unfortunately, led to an altogether indefensible reading of the statute. In the first place, in simple English, a forty year or a 115 year sentence is "determinate." A life sentence, on the other hand, is among the categories described as "indeterminate." On the unambiguous language of the statute, the ten year maximum for parole eligibility in indeterminate sentences simply has no application to determinate sentences.
Moreover, when one stops to think about it, it was not entirely illogical, if illogical at all, for the North Carolina legislature to have drafted what the Parole Commission took it upon itself to deem an arbitrary provision. Murder is the most immediate crime to which one's mind turns when life imprisonment is contemplated. It is an execrable crime. At the same time, some studies indicate that the single perpetration of the crime of murder is by no means indicative of a predisposition to commit other crimes. See, e.g., J. Monahan, Predicting Violent Behavior: An Assessment of Clinical Techniques 135-36 (1981). On the other hand, those who repeatedly commit crimes punishable only by determinate sentences may display a propensity towards recidivism which would make early parole for them less reasonable than parole for someone sentenced to life.
Glenn was convicted of three crimes, assault, armed robbery and kidnapping, all of which may have grown out of essentially a single occurrence. Another prisoner, however, might have been convicted of three serious crimes quite independent of one another, yet carrying the same penalties. In that case, there would exist an indication of a predilection not so readily amenable to elimination in time as to make parole eligibility at ten years desirable. At any rate, the North Carolina legislature was free to take such considerations into account and to reach its conclusion that for a sentence of 115 years, parole eligibility should not arise until 28 3/4 years had elapsed.
We have not been apprised of exactly when the North Carolina Parole Commission's regulation...
To continue reading
Request your trial
-
Davis v. Moore
...v. Thomas, 19 F.3d 498, 500 (10th Cir.1994); Cortinas v. United States Parole Comm'n, 938 F.2d 43, 46 (5th Cir.1991); Glenn v. Johnson, 761 F.2d 192, 194-95 (4th Cir.1985); Lerner v. Gill, 751 F.2d 450, 457 (1st Cir.1985). See also Crowley v. Landon, 780 F.2d 440, 444 (4th Cir.1985) (no ex ......
-
Cohn v. Federal Bureau of Prisons
...no ex post facto violation where agency stopped applying good time credit statute to prisoners with life sentences); Glenn v. Johnson, 761 F.2d 192, 194-95 (4th Cir.1985) (finding no ex post facto violation where agency adopted Attorney General's opinion correcting misapplication of statute......
-
Washington v. Commissioner of Correction
...incarceration prior to parole eligibility), cert. denied, 513 U.S. 1002, 115 S.Ct. 516, 130 L.Ed.2d 422 (1994); Glenn v. Johnson, 761 F.2d 192, 194-95 (4th Cir. 1985) (same); State v. Horner, 153 N.H. 306, 312, 893 A.2d 683 (2006) (when practice "directly contravenes" statutory language, co......
-
Hawkins v. Freeman
...provisions in North Carolina has caused confusion for its Parole Commission and Attorney General before, see generally Glenn v. Johnson, 761 F.2d 192 (4th Cir.1985), and we very much doubt that Hawkins, without any legal training, could be expected to untangle The State's third attempt to a......