By Paul Woolverton
The Fayetteville Observer
RALEIGH — Freedom for double-murderer Bobby E. Bowden depends on how the N.C. Supreme Court views the applicability of the rules that the Department of Public Safety uses to decide when to give a prisoner credit for good behavior.
Bowden’s lawyer, Katherine Jane Allen, sought in arguments before the court Tuesday to persuade the seven justices that the N.C. Public Safety Department wrongly canceled plans in October 2009 to release Bowden that month.
Special Deputy Attorney General Joe Finarelli countered that Bowden was never truly entitled to go free. He said that the state Court of Appeals and former Cumberland County Superior Court Judge Gregory Weeks were mistaken when they decided that Bowden was, per the prison system’s rules, state laws and prior court rulings, due to be released less than 40 years into his “life” sentence.
Part of the conflict stems for the fact that Bowden would have an “unconditional” release - he would be free-and-clear of oversight by state authorities. He would not be on probation or parole or otherwise supervised or subject to return to prison to resume his life sentence if he gets in trouble again.
Bowden, 65, is in prison for killing two people in a Cumberland County convenience store robbery in August 1975. Originally facing the death penalty, his sentence was converted to life in prison in 1976 when the U.S. Supreme Court found North Carolina’s death penalty to be unconstitutional.
At that time, state law defined a “life” sentence as 80 years. Another law cut prison sentences in half, and other policies gave inmates credit - time off their sentences - for good conduct.
Punishment laws have since been changed to end parole and good conduct credits, but older inmates are still eligible for them because it would be unconstitutional to take them away from someone who previously qualified for them.
Bowden in 2005 calculated he was due to be released. When he didn’t get out, he petitioned the courts. After initial setbacks, Bowden won favorable rulings. But he remains behind bars while the state continues to appeal.
Bowden and certain other inmates who also initially were sentenced to death in the mid-1970s and then got 80-year “life” sentences were never entitled to good conduct credits, Finarelli told the justices Tuesday.
“Those inmates . had never had sentence reduction credits . apply to their unconditional release dates,” Finarelli said. “In fact the only way that inmates sentenced to life in prison in the history of North Carolina, that could be discovered during the evaluation, was through the parole process.”
Bowden’s accomplice in the robbery and murders was paroled in 2012. But since becoming eligible for parole in 1987, Bowden has always been denied.
An October 2009 N.C. Supreme Court decision in Bowden’s case let stand a 2008 Court of Appeals ruling in Bowden’s favor. That ruling led the state prison system to take a two-track approach to Bowden’s case and the sentences of more than two dozen other violent inmates who also could take advantage of the Bowden ruling, Finarelli said.
“There was the track that the department would wind up releasing the inmates” by Oct. 29, 2009, Finarelli said. And it made preparations to do so.
“Then there was the track of: Are there other legal avenues that could be pursued” to keep the inmates locked up, he said.
The inmate releases were halted at the direction of then-Gov. Bev Perdue.
But by then under the law it was too late to stop Bowden’s release, Allen argued.
The prison system’s records and internal emails show that Bowden was given the good-conduct credits and was told he would be released. Then the credits were wrongly taken away, Allen said. Finarelli disputes whether the credits were really granted in the first place.
But if Bowden’s credits were truly granted, Allen said it’s unconstitutional to rescind them.
“When the Department of Corrections determined his sentence expired on Oct. 13, 2009, and that he would be released on Oct. 29, 2009, when they informed him of that fact and fully prepared him for that release, the Department of Corrections created a liberty interest in those credits,” she said.
Further, “when they were applied in October 2009, DOC crossed the Rubicon. They reached a point of no return, the credits cannot be revoked and release cannot be halted without running afoul of the Constitution,” Allen said.
A ruling in Bowden’s case could be several months away.
If the Supreme Court decides Bowden was unjustly locked up since October 2009, he could be eligible for $50,000 per year of payment from the state for that time.