Consenting to Relief to Remove Vulnerable People from Prison

Updated May 4, 2020:  On April 23, this post discussed the use of consent MAR’s to address the risk from COVID-19 to individuals in North Carolina’s prisons.  Since then, the risk from COVID-19 in prisons has increased. Pending litigation challenges the response from the prison system to COVID-19.  In response to the litigation, Superior Court Judge Rozier recently  ordered the prison system to provide more detailed information about their efforts to deal with the pandemic; for each prison unit information must be provided detailing the availability of masks, access to soap and other sanitizers, whether bunks have been rearranged to keep occupants more than six feet apart, and for prison units in which people are substantially more likely to contract the disease than the non-incarcerated population, a detailed and specific plan demonstrating the steps that will be taken in the next thirty days to diminish the spread of the virus.  In short, serious questions remain about the prison system’s ability to effectively limit the risks of the virus to those housed or working in the prisons. 

On April 23, we discussed initial efforts to remove individuals from the risk through post-conviction proceedings, which produced relief for nine people who had been convicted in Durham. Since that time, Ben Finholt, and other advocates, continue to use individual post-conviction motions to remove those who are vulnerable from the prison setting.  The newer MAR’s have increasingly focused on the constitutional claims that requiring someone to remain in prison on a sentence that was lawful when imposed can violate the Eighth Amendment’s ban on cruel and unusual punishment and the right to be free from cruel punishment under Article, § 27 of the North Carolina Constitution, when the prison setting exposes the person to serious health risks from the virus.   While the consent of the District Attorney remains an important component of obtaining effective and timely relief, the MAR’s do not rest primarily on that consent as the basis for relief.  In Durham the number of people who have obtained relief through these proceedings has now increased to 14.  In addition, District Attorneys in Wake and New Hanover counties have agreed to relief in a case in their counties, although the basis for the relief in Wake included a legal ground not directly tied to COVID-19, and three additional MAR’s are pending in Buncombe County.  These motions will continue to be an important part of the effort to spare people in prison from the impact of COVID-19.


The impact of COVID-19 on the criminal justice system has been swift and dramatic, highlighting the need for quick and effective response from state and local authorities. As described in our coverage of COVID-19 on this blog, responses have included orders issued from state supreme courts and their chief justices addressing the need to reduce jail populations, and decisions made to reduce prison populations. In addition, advocates working to protect those in prison and jail beyond those covered by the orders have filed litigation, including emergency writs of mandamus, habeas actions, and class action lawsuits.

In North Carolina, advocates have also turned to a provision in North Carolina law that allows prosecutors and defendants to consent to post-conviction relief. This provision was created long before the pandemic, but highlights the importance of looking at all available legal tools in addressing an unprecedented crisis. The use of this provision also highlights the question whether it is appropriate for prosecutors to consent to relief in cases in which they could potentially successfully fight the post-conviction proceeding.

The danger posed by COVID-19 to jail and prisons populations is extreme and undeniable. News accounts describe the impact of the pandemic across the country, from the Cook County Jail, where six people held in the jail and one staff member have died as of April 21, to a recent report that an inmate, a warden and a medical director in Louisiana’s state prison system died from the virus. In North Carolina, the Division of Prisons recently went as far as closing one prison unit, requiring the transfer of people to other prison units, to free up staff to provide assistance at Neuse Correctional Institution, where hundreds of people serving sentences have been infected with the virus.

According to the ACLU, a recent epidemiological model shows that failing to take meaningful steps to reduce the jail and prison population will not only increase the number of deaths in these institutions, but also increase deaths in the community. Removing people with high health risks from the prison population is needed to reduce the damage as the virus unavoidably spreads through the prisons. Efforts to protect those in prison may mitigate the spread of the virus, but a significant outbreak in many prisons is all but unavoidable. People with underlying conditions that magnify the risk from infection cannot safely be housed in the prison setting. To protect these people, Ben Finholt, director of the Just Sentencing Project at North Carolina’s Prisoner Legal Services, working with other advocates, identified people at risk in prison, who are appropriate candidates for release, and approached district attorneys to agree to a resentencing by consenting to a post-conviction Motion for Appropriate Relief.

Satana Deberry, the elected District Attorney, in North Carolina, agreed to relief for nine of these people, seven of whom were due to be released by the end of this year, and two who would be released in 2022 and 2023. The Superior Court judge granted these consent motions, resulting in resentencing hearings and release from prison. District Attorney Deberry’s willingness to work with counsel to identify appropriate cases for relief and remove these people from prison was not without controversy. The motions were based on more than Deberry’s consent, and alleged that the risk from COVID meant that continued incarceration violated the Eighth Amendment. Nonetheless, District Attorneys in other counties questioned whether prosecutors have the authority to consent to relief without a sound ground for relief spelled out in the motion, and whether judges can grant relief primarily on the state’s consent, and did not agree to relief for anyone in prison who had been convicted in their district.

North Carolina’s statutory post-conviction scheme places the burden on the person seeking relief to prove one of the specific grounds listed in the statute. In 2012 the statute was amended to include a provision allowing consent MAR’s. Specifically, the amended statute provides: “Nothing in this section shall prevent the parties to the action from entering into an agreement for appropriate relief, including an agreement as to any aspect, procedural or otherwise, of a motion for appropriate relief.” N.C.G.S. § 15A-1420(e). There is some question whether this provision was intended to allow the state, with a judge’s approval, to consent to relief in the interest of justice, even when the person seeking relief might not be able to prove one of the statutory grounds, or whether it was meant to simply allow the prosecution to agree that the motion sets out a basis for relief and to an order granting the motion. The broad language of the provision suggests that the authority to consent to relief is more than simply the authority to agree to relief in an otherwise valid motion. Indeed, it is not unheard of for prosecutors to consent to motions setting aside a conviction based on general equities, primarily in cases in which the collateral consequences of a conviction are harsh and the person has already served the direct sentence that was imposed. However, Professor Jessica Smith, covering Motions for Appropriate Relief in the North Carolina Superior Court Judge’s Benchbook, advises judges to exercise caution in granting a consent MAR that is not supported by other grounds.

The reach of this provision is unlikely to be clarified by an appellate decision; these cases involve relief granted through the consent of the state, and with approval of the judge. The apparent breadth of the authority to consent to relief was likely intentional. Legislators may well have decided that elected District Attorneys are representative of the communities they serve and can be trusted to exercise sound judgment in consenting to relief. The interest of any identified victim in a case is protected as North Carolina gives the victim a right to be heard on any proceeding that could lead to release. Finally, a judge must agree that relief is appropriate and grant the motion. District Attorney Deberry’s decision to consent to relief, rather than litigate and delay release for someone at high risk from the virus, demonstrates a commendable willingness to work cooperatively to achieve a just result.