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All North Carolinians are a little less free in the wake of a state Supreme Court decision

During the early days of the American Revolution, Benjamin Franklin famously told his fellow patriots that "We must all hang together, or assuredly we shall all hang separately."

He was right, of course. Though the Revolution was chock-full of all sorts of ambitious strivers and other unique characters and individuals, in the long run, it held because people stuck together; they put the common good ahead of their own selfish short-term interests. Prominent, propertied leaders understood that, in the long run, the path to greater freedom and happiness for themselves was paved with guarantees of freedom for their fellow citizens.

This seemingly paradoxical bit of genius has remained at the heart of the American success story ever since. By protecting the First Amendment freedoms (speech, religion, association) of the most unpopular and lowly characters, we help secure and assure them for everyone. If the rights of disturbed lunatics like the Nazis or the Klan can be assured, then average, sane people are that much freer.

Similarly, if the state must abide by the rule of law even in the prosecution and punishment of the worst kinds or offenders, then all of us benefit in the long run from the peace of mind that our own liberty is that much more secure. Better that a couple of guilty people go free, goes the obvious and potent logic, than that the state unjustly imprison an innocent person.

Making up the law as it goes along

Would that the North Carolina Supreme Court had kept Franklin's wisdom and its many practical applications in mind last week. The context was its decision in the cases of the so-called "lifers" who had sought release from prison after having served only parts of their "life" sentences.

As has been noted in this space and many others over the last several months, the matter arose in 2009 as a result of the inconvenient fact that, for a time in the in the 1970's, state law specified that a "life sentence" was not necessarily a life sentence. Rather, for whatever reason (good, bad or indifferent), the law prescribed that a life sentence was really a sentence of 80 years. When combined with the policy of "good time" (i.e. time off for good behavior) and other bonuses that were regularly afforded to prisoners in the old days before so-called "truth in sentencing" laws, several so-called "lifers" were found to be eligible for immediate release. Some individuals were actually long overdue. A series of court proceedings ensued in which the state Court of Appeals and Superior Court ruled in favor of the release of multiple individuals.

Unfortunately, as is so often the case when it comes to controversial criminal justice matters, politics intervened and what seemed to have been an open and shut matter was quickly turned into a complex and convoluted debate by Governor Perdue and her Department of Correction.

Though it was clear beyond a doubt that a) the law had explicitly sentenced the inmates in question to 80 years and, b) the Department had awarded the inmates "good time" and other credits for time served, the Department told the Supreme Court that it hadn't intended that the credits ever actually be applied. According to the Department, it had merely kept records and awarded credits to the prisoners in question in case their sentences were ever commuted by a governor.

As the dissent (it begins on page 24) of Justice Timmons-Goodson (which was joined by Justice Hudson) points out, however, the Department's (DOC) explanation smacks of a retroactive whitewash:

"Specifically, the Court of Appeals observed that the DOC's records for Bowden [the first inmate to seek release under this provision] initially "indicated that all of [his] good conduct time, merit time, and gain time credits had been applied to his sentence." …Curiously, and "for reasons unclear to [the Court of Appeals], the Department of Correction later retroactively changed the status of [Bowden's] sentence reduction credits from ‘applied' to ‘pending.'" …Subsequent statements of policy by the DOC and other executive branch officials also cut against the letter of the DOC's regulations for awarding sentence reduction credits."

In other words Timmons-Goodson is telling us that the Department of Correction (under the leadership of multiple governors) screwed up. Despite the fact that a) previous cases from decades ago had given the Department notice that life sentences from that era were really 80 years and that good time credits could reduce such sentences and b) the Department had clearly awarded such credits, it is now claiming that it is shocked (shocked!!) to learn that anyone might want to interpret and apply the law and the applicable rules as they are written.

Justice Timmons-Goodson continued:

"The DOC essentially argues that because it has fundamentally misapprehended the nature of Jones's sentence for the past thirty years, it should be allowed to perpetuate its mistake and retroactively eliminate the sentence reduction credits awarded to Jones. This argument flies in the face of bedrock principles securing fundamental fairness in the criminal justice system, including due process and the prohibition against ex post facto laws….

…the majority fails to recognize that the DOC's position is not based upon any ‘interpretation' of its regulations. Rather, the DOC's position contravenes the regulations themselves. Nothing in any relevant provision of the North Carolina General Statutes, the North Carolina Administrative Code, the DOC's policies, procedures, or regulations, or North Carolina case law precedent specifically authorizes the Secretary of Correction to apply the good time, gain time, merit time, or any other awarded credits only for certain purposes and not for others. Simply put, the DOC offers no textual support for its position and neither does the majority."

In other words, faced with a politically poisonous result they didn't like, the Department of Correction (i.e. the Perdue administration) and five members of the Supreme Court formulated a Plan B: changing the law by interpreting it out of existence.

A setback for freedom and the common good

While the matter may not yet be over (lawyers for the inmates say they are exploring further appeals to the federal courts - where the judges don't have to worry about re-election), for now the damage to freedom in North Carolina has already been done.

For the foreseeable future, all of us must live with the knowledge that North Carolina's highest arbiter of truth and justice has, in essence, countenanced an after-the-fact rule change - a politically expedient lie that seems better suited to a banana republic or a Kafka novel than 21^st Century America.

The crack in the foundation of freedom and liberty may be a small one - after all, it's hard to imagine a less popular group with a smaller political constituency than a bunch of broken down, old prison inmates - but it's real nonetheless. It will take real work by caring and intelligent people to limit its spread, so let's hope it's forthcoming. It may be a challenge to see one's interests aligned with the most hated people of society, but Ben Franklin and the other founders understood why it was and will always be necessary.

The Labor Day weekend is almost upon us, marking the real beginning of the fall political campaigns, though the distortions paid for by special interest money are already filling up mailboxes in several legislative districts.

Real Jobs NC, a 527 bankrolled by PPD CEO Fred Eshelman, Art Pope, and the national Republican Party, was first out of the gate with fliers attacking a handful of Democratic legislators for raising taxes in 2009 to balance the budget while wasting money on what the ads claim are pork barrel projects.

The ads themselves are ridiculous. One attacks House Majority Leader Hugh Holliman for voting for a $25 million fishing pier in Nags Head that every Republican also supported. Another flier criticizes Rep. Chris Heagarty for voting for the 2009 budget that included a tax hike, but Heagarty wasn't even in the House when the budget passed. He was appointed to seat a few months later.

But facts aren't the point anyway. The point is to claim that Democrats should not have raised taxes to balance the budget and should have cut another $2 billion from education and human services instead, though no additional cuts are ever identified.

A spokesman for Real Jobs NC told the Wilmington Star-News that the group had no plans to produce ads supporting any candidates, only ones criticizing Democrats.

It is a campaign based on no, things that should not have been done with no suggestion about alternatives. That's the entire theme of the mailings and the core of strategy of the Republican Party.

Democrats raised your taxes and didn't need to, and they will do it again to solve the $3 billion budget shortfall facing the state next year. That's the mantra.

If you want to know how Republicans would have balanced the budget in the last two years without raising new revenue or how they will address the massive shortfall next year with cuts alone, you are out of luck.

There's certainly nothing in the slick Real Jobs NC fliers about that. Not much in any Republican candidates' campaign rhetoric either. Instead, many are talking about cutting taxes, pushing a $3 billion shortfall to $4 billion or more.

Almost all of the Republican legislative candidates have signed the absurd no-new taxes pledge. They want us to know they will cut and slash their way out of the current budget crisis.

But they refuse to tell us how. The voters deserve specifics, not talk about a pier that all the legislators supported.

Let's take $3 billion as the hole they have to fill, though it's almost certain to be larger and that doesn't include the tax cuts the Republicans are promising.

You could eliminate the entire community college system and you would still only be one-third of your way to filling the hole. Then abolish the Departments of Agriculture, Commerce, Labor, Cultural Resources, and Environment and Natural Resources and you would still have $1.6 billion to cut.

You could go at it another way, close all the campuses of the University of North Carolina, but that wouldn't get you to $3 billion either.

That's probably why the Republicans and the fliers from the groups supporting them don't provide any alternative budget plans. Because they know people don't want vital state institutions abolished or decimated.

They also know they cannot balance the budget without devastating core functions of the state unless they raise new revenue next year.

That may not bother some of the most zealous anti-government candidates running for the General Assembly. But they at least ought to have the decency to admit it and not hide behind meaningless and misleading corporate-funded campaign propaganda.