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District Court is in Session . . . But for How Long?

Friday, November 20th, 2009

by School of Government faculty member and Defender Educator Alyson Grine

A district court session usually lasts one day, so many court actors have gotten in the habit of thinking that a district court session is a day as a matter of law. Some North Carolina publications refer to this day-long rule as if it were a foregone conclusion. However, “session” is not defined statutorily and there is authority to suggest that a district court session may span days. For those of you who can’t stand the suspense, see the last paragraph. For those of you who are less intrigued, this is not an academic exercise! Consider how the definition of “session” comes into play in sentencing.

Under G.S. 15A-1340.21(d), if a defendant is convicted of more than one offense in a single session of district court, only one of the convictions can be used to determine the prior conviction level for misdemeanor sentencing. By way of illustration, let’s say Donald Defendant’s record reflects that he was convicted of 8 counts of Resisting Officers on August 11, 2009, and has no other prior convictions. He is being sentenced today for Assault on a Government Official, a Class A1 misdemeanor. Donald is a prior conviction level II; only one of the Resists can be used because he was convicted of all of them in a single session of court. He can therefore receive a sentence of up to 75 days. If the district court judge erroneously counted the Resists as 8 prior convictions and treated Donald as a prior conviction level III, he could receive an active sentence of 150 days, twice as many days.

The rule for calculating multiple prior convictions could have even more impact if Donald were being sentenced for a felony in superior court a few weeks from today. In the context of determining prior record level for felony sentencing, the same rule applies: only one conviction counts where the defendant was convicted of more than one offense in a single session of district court. G.S. 15A-1340.14(d). New legislation tweaking the felony sentencing grid provides that for offenses committed on or after December 1, 2009, an offender with either 0 points or 1 point will be considered a Prior Record Level I for felony sentencing. S.L. 2009-555, amending G.S. 15A-1340.14(c) and 15A-1340.17(c). So, if Donald is in superior court on December 1 for sentencing on a felony, he would be sentenced as a prior record level I in spite of the 8 counts of Resisting Officers on his record. Assuming Donald were being sentenced for Assault with a Deadly Weapon Inflicting Serious Injury, a Class E felony, the statutory change would reduce his potential sentence by about 6 months. Rather than facing 36 to 53 months imprisonment as a Prior Record Level II, he faces 31 to 47 as a Record Level I. If the superior court judge were unfamiliar with G.S. 15A-1340.14(d) and mistakenly determined that the 8 Resists constituted 8 points, Donald could face 42 to 60 months as a Prior Record Level III.

Here is a question that is arising as a result of innovative district court calendaring practices. Some chief district judges are scheduling week-long sessions of DWI court for efficiency purposes. How will multiple prior convictions be calculated in this scenario? Assume Donald is hailed into district court on Tuesday where he is convicted of DWI 1, and is hailed in again on Wednesday, where he is convicted of DWI 2. Does this count as one prior conviction because both offenses were handled in one district court session spanning multiple days? I think the answer has to be yes. Defendants are placed on notice that their case will be reached some time during the DWI court week making these sessions analogous to week-long sessions of superior court, and only one conviction can be used from a given week of superior court to determine the conviction or record level. G.S. 15A-1340.21(d); G.S. 15A-1340.14(d). As we have seen, the answer will have a big impact for any future sentencing Donald may confront. Taking this scenario to an extreme, a person with five prior convictions of DWI could potentially be treated the same for felony sentencing purposes as a person who has no prior convictions, after December 1.

The DWI court model leaves me wondering: 1) Are there other district court scheduling practices that give rise to an argument that we are in fact dealing with one session spanning multiple days? Maybe other specialized courts, such as domestic violence court, function similarly in that one judge is assigned to the session and defendants are noticed that their case will be heard on “Monday or Tuesday,” or whatever may be the case; and 2) How in the world are defenders going to determine whether their clients’ prior convictions occurred in one extended session of district court or multiple single-day sessions? Do defenders have an obligation whenever they see that their client had two convictions in one calendar week to investigate the nature of the session(s)? Is it possible to make a person’s record reflect that two district court convictions on different days were actually part of the same session?

What authority supports that a session of district court session may last multiple days? In this bulletin, “Out-of-Term, Out-of-Session, Out-of-County,” School of Government faculty member Michael Crowell notes that a day of district court is commonly considered a session because chief district judges, who have the authority to arrange schedules and assign district judges under G.S. 7A‑146(1), typically assign judges by the day. However, Crowell cites Routh v. Weaver, 67 N.C. App. 426 (1984), in support of the proposition that a chief district judge may also assign a district judge to hear a particular motion or case. “[T]he hearing of that single case, however long it lasts, constitutes a session as well.” Crowell at 1. The Routh court adopts the following expansive definition of “session” from Black’s Law Dictionary:

The sitting of a court, Legislature, council, commission, etc., for the transaction of its proper business. Hence, the period of time, within any one day, during which such body is assembled in form, and engaged in the transaction of business, or, in a more extended sense, the whole space of time from its first assembling to its prorogation or adjournment.

Routh at 431. So, how long is district court in session? In the absence of any parameters from the chief district judge, the answer appears to be “until it is over.”

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Another Batch of Satellite-Based Monitoring Cases

Tuesday, November 17th, 2009

by School of Government faculty member Jamie Markham

The last round of opinions from the court of appeals included three related to satellite-based monitoring (SBM) of sex offenders. None of them broke any major new ground, but two more dissents show that nothing is fully settled in this rapidly evolving area.

In State v. Gardner, the court found the defendant, who was recently released from prison to post-release supervision, to be a recidivist and ordered him to enroll in SBM for life. At the determination hearing, the defendant argued that SBM was an invalid ex post facto punishment and violated double jeopardy principles. The trial court acknowledged in its order that Mr. Gardner might have a point, but said the issue wouldn’t be ripe for review until he finished his term of post-release supervision. The court’s idea, I think, was that because post-release supervisees are required to submit to SBM as a condition of supervision under G.S. 15A-1368.4(b1)(6), SBM for life-the regime that defendants have been arguing adds to their punishment-doesn’t actually begin until formal supervision ends. It’s not a bad argument, although as it turns out it may yet violate the Ex Post Facto Clause to add a mandatory condition of supervision to cases based on crimes that occurred after passage of the legislation adding the condition-that’s what happened in Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009), as discussed in my comment to this post. Regardless, the appellate court’s problem with the trial court order in Gardner was with its clarity, not its constitutionality. In one place the order said SBM was for life, in another place it said SBM was just a condition of post-release supervision. The court of appeals remanded the case for the trial court to clear up the ambiguity.

Up next is State v. Hagerman, in which a defendant was ordered to enroll in SBM for life after the trial court determined his indecent liberties convictions were aggravated offenses. The defendant argued that the court’s determination violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), by increasing his punishment based on facts not presented in an indictment, admitted to, or found by a jury beyond a reasonable doubt. Because SBM is not punishment, the court of appeals held, Mr. Hagerman’s sentence was not increased, and Apprendi wasn’t implicated. Judge Elmore dissented, noting his continued belief (expressed in other dissents, including one I’ll discuss in a moment) that SBM is punishment, and is therefore subject to Apprendi’s jury-proof requirements. Hagerman does not address the question of whether aggravated offense determinations may rest only on the elements of the conviction offense, or whether the court may also look to the facts behind the conviction. (I discussed this issue, which is a question of statutory interpretation, in an earlier post.) The trial court in Mr. Hagerman’s case must have looked to the facts (indecent liberties does not include penetration as an element), but the defendant did not raise the statutory interpretation argument on appeal, and the court of appeals therefore did not discuss it. The issue will be more squarely before the court soon.

Finally comes State v. Vogt, a case involving a recidivist offender ordered to enroll in SBM for life, in which the court of appeals once again rejected a defendant’s argument that monitoring is ex post facto punishment. Mr. Vogt also argued that the trial court’s SBM order rendered his guilty plea invalid because “he could not have been advised that he would be subjected to lifetime satellite-based monitoring . . . since such monitoring did not exist at the time that he entered his guilty plea.” A problem with that argument, the court of appeals noted, is that the defendant’s plea to his most recent sex crime was entered in June of 2008, almost two years after the SBM statute became effective. Judge Elmore dissented, again taking judicial notice of the Division of Community Correction’s interim policy on sex offender management to conclude that SBM amounts to ex post facto punishment. The majority did not question the dissent’s authority to take judicial notice of the DCC policy, but it did express concern about introducing “a large volume of additional information which has not been subjected to adversarial testing in the trial courts.”  Such testing would, I think, sort out which provisions in the interim policy are applicable to sex offenders on probation or post-release supervision (warrantless searches, curfews, and notification of church officials), and which actually apply to offenders enrolled in SBM (a distinction I wrote about here). In a footnote, the majority practically invited a monitored offender to “challenge the validity of specific provisions of the interim guidelines . . . on the grounds that they violate state or federal law”-it just asked that the challenge come in an “appropriate proceeding” in the trial division, not through judicial notice on appeal.

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The New Felony Sentencing Grid

Monday, November 9th, 2009

by School of Government faculty member Jamie Markham

For the first time since 1995 we have a new felony punishment chart for Structured Sentencing. Two pieces of legislation from the past session, S.L. 2009-555 and S.L. 2009-556, made changes that will become effective December 1, 2009 and apply to offenses committed on or after that date.

The first law restructures the point ranges for prior record level for felony sentencing. Perhaps most significantly, a person with one prior record point will, under the new law, still be considered Prior Record Level I for sentencing. The remaining levels are recalibrated so that each covers four points - under current law, Prior Record Level IV covers six points while the other levels cover four apiece. Defendants on the low end of the prior record scale will generally benefit from the change, whereas those with 14 or more points might find themselves in a higher level on the new grid.

The second law changes the minimum sentence durations for Class B1-G felonies so that they grow by a standard 15 percent increment as you move from left to right on the grid within a particular offense class. So, for example, if the minimum presumptive sentence for a Class E, Level I offender is 20 months, then the minimum presumptive sentence for a Class E, Level II is 15 percent greater than that (23 months); the minimum presumptive sentence for a Class E, Level III is 15 percent greater still (26 months); and so forth as you move across the grid. The range of minimum sentences in Prior Record Level I in each offense class is the same as under current law, and the ranges for Class H and I felonies remain unchanged. The effect of these changes on individual defendants varies depending on where they fall on the grid - sometimes the numbers are higher than they are under current law, sometimes lower.

This year’s changes to the law were motivated - at least in part - by the projected shortfall of prison beds in the state in the coming years, and a realization that prison building alone could not accommodate the increased population. The table below shows the Sentencing Commission’s projection of the combined estimated impact of the two bills. As you can see, on balance the changes result in a prison bed savings over the course of the next decade.

Fiscal year           Combined Impact

2010/11                -244

2011/12                -303

2012/13                -419

2013/14                -542

2014/15                -759

2015/16                -1,117

2016/17                -1,436

2017/18                -1,716

2018/19                -1,911

2019/20                -2,078

Longtime readers may recall that I wrote about these proposed changes back in February (here), noting that they stemmed from a Sentencing and Policy Advisory Commission report from 2002. That report discussed additional alternatives (involving the habitual felon and post-release supervision laws) that were projected to save as many as 5,000 beds over a decade. The new laws will help, but they alone won’t be able to bridge the projected difference between population and system capacity - a gap expected to grow to nearly 7,500 by 2018, even with DOC employing its expanded operating capacity. You can learn more about the Sentencing Commission’s ridiculously accurate prison population projections here. You can also read about the broader costs of incarceration in a blog post by our Dean, Mike Smith.

A printable version of the new chart is here. (Thank you to the Sentencing Commission for providing it.)

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Sentencing in Impaired Driving Cases

Thursday, November 5th, 2009

by School of Government faculty member Shea Denning

I first encountered North Carolina’s impaired driving sentencing scheme several years ago when I worked as an Assistant Federal Public Defender for the Eastern District of North Carolina.  I represented defendants charged under the Assimilative Crimes Act, 18 U.S.C. § 13, with committing violations of assimilated state offenses on a certain federal enclave in Fayetteville. I recall trying to determine whether a defendant charged with violating the assimilated state law offense of driving while impaired was automatically entitled to a jury trial in federal court, given that the punishment for impaired driving can only exceed six months based on a finding of at least one grossly aggravating factor. I was practicing at the time in a post-Apprendi v. New Jersey (530 U.S. 466), but pre-Blakely v. Washington (542 U.S. 296) world, and I (and others) wondered:  Did G.S. 20-138.1 and 20-179 define five separate impaired driving offenses or one offense with five levels of punishment?

North Carolina’s impaired driving statutes were amended post-Blakely to require that aggravating factors that increased the maximum punishment be found by a jury (in superior court) and be proven beyond a reasonable doubt.  By affording element-like constitutional protections to these sentencing factors, the 2006 amendments largely (though not entirely) rendered academic the question of whether G.S. 20-138.1 and G.S. 20-179 defined one-or five-offenses.

While the finder of fact and burdens of proof were altered by 2006 and 2007 amendments to the impaired driving statutes, the five-level punishment structure in G.S. 20-179 (which governs sentencing for conviction of (i) impaired driving under G.S. 20-138.1, (ii) impaired driving in a commercial vehicle under G.S. 20-138.2, (iii) a second or subsequent conviction for operating a commercial vehicle after consuming alcohol under G.S. 20-138.2A, and (iv) a second or subsequent conviction for operating a school bus, school activity bus, or child care vehicle after consuming alcohol under G.S. 20-138.2B) remains intact.  Given the relative complexity of this statutory sentencing scheme, I thought the topic of sentencing in impaired driving cases might be worthy of a blog post (or two).

Let’s start with the grossly aggravating factors (GAF).  A finding of one GAF requires that the defendant receive a Level Two punishment, which bumps the statutory maximum sentence from six to twelve months.  If the fact-finder finds more than one GAF, Level One punishment, which carries a 24-month maximum, must be imposed.

There are four types of GAFs:

1.       A prior conviction for an offense involving impaired driving, defined as

  • impaired driving under G.S. 20-138.1;
  • habitual impaired driving under G.S. 20-138.5;
  • impaired driving in commercial vehicle under G.S. 20-138.2;
  • any offense under G.S. 20-141.4 based on impaired driving;
  • first- or second-degree murder under G.S. 14-17 based on impaired driving;
  • involuntary manslaughter under G.S. 14-18 based on impaired driving; or
  • a substantially similar offense committed in another state or jurisdiction

if

a.       The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced;

b.      The conviction occurs after the date of the offense for which the defendant is presently being sentenced but prior to or contemporaneously with the present sentencing; or

c.       The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.

Each prior conviction is a separate grossly aggravating factor.

2.       Driving while license revoked at the time of the offense under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).

An impaired driving license revocation is a revocation made under any of the following statutes:

  • G.S. 20-13.2: consuming alcohol/drugs or willful refusal by driver under 21
  • G.S. 20-16(a)(8b): military driving while impaired
  • G.S. 20-16.2: refused chemical test
  • G.S. 20-16.5: pretrial civil license revocation
  • G.S. 20-17(a)(2): impaired driving or commercial impaired driving
  • G.S. 20-138.5: habitual impaired driving
  • G.S. 20-17(a)(12): transporting open container
  • G.S. 20-17.2: court order not to operate (repealed effective December 1, 2006)
  • G.S. 20-16(a)(7): impaired driving out of state resulting in N.C. revocation
  • G.S. 20-17(a)(1): manslaughter or second-degree murder involving impaired driving
  • G.S. 20-17(a)(3): felony involving use of motor vehicle, involving impaired driving
  • G.S. 20-17(a)(9): felony or misdemeanor death or serious injury by vehicle involving impaired driving
  • G.S. 20-17(a)(11): assault with motor vehicle involving impaired driving
  • G.S. 20-28.2(a)(3): The laws of another state and the offense for which the person’s license is revoked prohibits substantially similar conduct which if committed in this State would result in a revocation listed under any of the above statutes.

3.       Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.

4.       Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.

Level Two punishment requires a minimum sentence of seven days.  If a judge suspends a Level Two sentence, the judge must impose special probation requiring an active term of at least seven days.  Level One punishment requires a minimum sentence of thirty days.  If a judge suspends a Level One sentence, the judge must impose special probation requiring an active term of at least thirty days. There is only one substitute for jail time:  A judge may order that time be served and award credit for time served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse. See G.S. 20-179(k1).

The rules governing credit for jail time are closely prescribed.  A judge may not award credit for the first twenty-four hours of time spend in jail pending trial. See G.S. 20-179(p).  And, while a judge may order a term of imprisonment to be served on weekends, any term of 48 hours or more must be served in increments of 48 continuous hours. Credit for jail time is given hour for hour for time actually served.  See G.S. 20-179(s)(1).

If there are no GAFs, then Level Three, Four, or Five punishment may be imposed, depending upon the relevant weight of aggravating (as distinguished from grossly aggravating) and mitigating factors.  Each of these lower-level punishments may be satisfied by conditions other than active time.  But that is a post for another day.

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Waiving Probation Supervision Fees

Thursday, October 29th, 2009

by School of Government faculty member Jamie Markham

Under G.S. 15A-1343(c1), defendants placed on supervised probation must pay a monthly supervision fee of $30, unless exempted by the court. That exemption may only be granted for good cause upon motion of the defendant.

Over the past month or so I’ve received many calls from people who have heard that legislation from the past session removed the court’s authority to exempt probationers from the fee. There were lots of changes to probation, and lots of changes to fees, but as far as I know there were no changes to a judge’s authority to waive probation supervision fees.

After consulting with AOC I have a few theories about what might be causing the confusion. First, a provision in the appropriations act (S.L. 2009-451, section 15.17I(a)) made the following changes (underlined) to G.S. 7A-455.1, clearly stating that a judge may not remit the $50 fee for appointment of counsel:

(b) The mandatory fifty-dollar ($50.00) fee may not be remitted or revoked by the court and shall be added to any amounts the court determines to be owed for the value of legal services rendered to the defendant and shall be collected in the same manner as attorneys’ fees are collected for such representation.

That’s strong language, but it applies only to that particular appointment fee, not to supervision fees.

Second, legislation in 2008 amended the law applicable to probationers supervised under the Interstate Compact for Adult Offender Supervision (G.S. 148-65.7) to say that North Carolina’s compact commissioner (or the commissioner’s designee) is the waiver authority for Compact-related fees. That includes the $150 transfer application fee that North Carolina offenders must pay to transfer supervision to another state and the $30 monthly supervision fee that offenders convicted in other states pay when supervised here. Several judges have asked me whether they can waive either of those fees, and my answer is that it appears as though they can’t. But again, this limitation on a judge’s fee-waiver authority is limited to this particular context and doesn’t affect their ability to waive ordinary supervision fees.

Finally, there’s a provision in the main probation reform bill, S.L. 2009-372, that says probationers for whom a period of probation is tolled based on a new charge “shall remain subject to the conditions of probation, including supervision fees, during the tolled period.” I don’t read the “shall” in that provision to mean a person must pay fees during a tolled period even if a judge has previously waived the fee. Rather, I interpret it to mean whatever probation conditions a person has, including supervision fees if not exempted, continue unabated during a tolled period.

Those are my best guesses. If you know of something I’m missing or have other ideas about what might be causing the confusion, please leave a comment. I’ll be embarrassed if someone points out something I overlooked, but I’ll get over it. The important thing is getting the proper information out to the field.

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Ignition Interlock for All

Monday, October 26th, 2009

by School of Government faculty member Shea Denning

The New York Times published this editorial last week advocating that all people convicted of impaired driving - including first-time offenders - be required to install ignition interlocks in their vehicles.  The editorial was prompted by California Governor Arnold Schwarzenegger’s signing of legislation imposing such a requirement for several California counties.  Ignition interlock is a small electronic device wired to a car’s ignition system.  To start the ignition, the driver must blow into the device, which measures the concentration of alcohol in his or her breath.  If the amount of alcohol exceeds the established threshold, the car will not start. The driver also must submit breath samples at random intervals while driving.  According to Monitech, the only approved ignition interlock provider in North Carolina, these rolling retests are designed to deter drinking while driving as well as the ruse of leaving the car idling outside a watering hole.  If the driver fails a rolling retest, a vehicle alarm sounds for all the world to hear.

The Times editorial echoes arguments expressed by others, including Philip Cook, professor of public policy at Duke University:  one-third of impaired driving offenses involve repeat offenders and ignition interlock has demonstrated the potential to reduce this recidivism and thereby save lives. Indeed, LaDoris Cordell, a retired state court judge in California, wrote a compelling piece for Slate bemoaning the decades it had taken for her state to embrace this “common sense and basic safety” measure.  (Hat tip: Sentencing Law and Policy.)

Most states, including North Carolina, already require ignition interlock for repeat offenders and drivers deemed “high risk” due to a conviction for impaired driving based upon an alcohol concentration of 0.15 or more.  G.S. 20-179.3 mandates ignition interlock as a condition of any limited driving privilege issued to a person convicted of impaired driving based upon an alcohol concentration of 0.15 or more and permits a judge to impose ignition interlock as a condition of any limited driving privilege.  G.S. 20-17.8 requires DMV to mandate ignition interlock as a condition of restoring a driver’s license to a person convicted of impaired driving based upon (a) an alcohol concentration of 0.15 or more or (b) commission of a second impaired driving offense within seven years after a prior impaired driving conviction. The duration of the interlock requirement is one, three, or seven years, depending upon the length of the original revocation period. Pursuant to G.S. 20-28, DMV also must require ignition interlock as a condition of license restoration for persons convicted of driving while license revoked when the person’s license was originally revoked for an impaired driving offense and an assessment reveals that the person abuses alcohol.

According to the Times, 11 states now require ignition interlock for first-time offenders.  Professor Cook provides several reasons why ignition interlock has not reached its full safety potential. Judges don’t order installation, even when required. Offenders don’t install interlock even when ordered, and courts lack the resources or integration with their motor vehicle departments necessary to monitor compliance.  Finally, interlock is too expensive.  Monitech charges $70 for installation and requires that the first two months of the $60 per month equipment lease be paid at the time of installation. As a result, a person seeking to have an interlock installed in North Carolina must pay nearly $200 in up front costs.

Professor Cook opines that better oversight by and coordination among authorities would help interlock implementation, along with efforts to make the devices affordable. New Mexico, which reportedly has experienced a 65 percent decrease in impaired driving recidivism due to ignition interlock use, established a fund to help defray the cost for low-income people. Cook also advocates for tying interlock duration periods directly to substance abuse treatment requirements in order to extend the benefits of the device beyond the period of its installation.

The Times editorial concludes by suggesting that Congress condition federal highway money on states requiring ignition interlock for all convicted impaired drivers.  And though the Times does not go this far, it is certainly possible that ignition interlock technology in the coming decades will become safety equipment as standard as, say, seat belts and airbags.  Sound far-fetched?  In 2008, Volvo began manufacturing cars with fully integrated in-car “alcolocks” with the goal of preventing impaired driving.  To date, Sweden, which partially funded the technology’s development, is Volvo’s biggest market for the product.

Chime in with your thoughts and experiences on the efficacy of ignition interlock and its future.

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Electing to Serve a Sentence

Friday, October 23rd, 2009

by School of Government faculty member Jamie Markham

Suppose a defendant is convicted of a crime and the judge wants to (or, in a “C” or “C/I” cell in the sentencing grid, has to) suspend the sentence. Can the defendant refuse probation and elect to serve the sentence? Unless the defendant’s crime was committed prior to January 1, 1997, the answer is no.

The law that used to allow a probationer to elect to serve a sentence, G.S. 15A-1341(c), was repealed in 1995. S.L. 1995-429. The repeal was motivated in part by the fact that many pre-Structured Sentencing probationers were refusing or purposely violating their probation, knowing they would serve only ten to twenty percent of their active sentences under the emergency prison population control measures in effect at the time. Better, the thinking went, to knock out a shortened active sentence than to put up with years of probation supervision.

There were some who worried that the repeal of the elect-to-serve provision would cast doubt on the constitutionality of suspended sentences. At that time, probation was not included in the list of authorized punishments set out in Article XI, Section 1 of the state constitution, and so its validity arguably hinged on the defendant’s consent. With the elect-to-serve provision repealed, a defendant could no longer be said to have consented to his or her probation. To be safe, then, the repeal was accompanied by a state constitutional amendment, adding probation to the list of authorized punishments. Consent no longer required, problem solved. (This change in the law becomes important when you think about things like warrantless searches of probationers. No longer can you just say the searches are okay because the probationer has implicitly agreed to be on probation. Instead, the searches need to be analyzed under a more traditional Fourth Amendment framework.)

Generally speaking, there are two times when a defendant might try to elect to serve a sentence, at the time of sentencing or at a violation hearing. At sentencing, a defendant who falls within a cell on the sentencing grid that includes an “A” may certainly ask the judge for an active sentence. In many cases I suspect that request will resonate with the judge, who may not want to burden an already-overworked community corrections staff with an offender who isn’t motivated to succeed on probation in the first place. But what if the defendant falls in a grid cell without an “A”? Aside from the active-time exception for certain misdemeanors under G.S. 15A-1340.20(c1), an active sentence is simply not an option. The General Assembly has determined that those defendants don’t merit a prison bed-at least not at the outset. In those cases, if the court is inclined to let the defendant bypass probation and go directly to prison, I’m told that some judges will use a three-step process in which they (1) sentence the defendant to probation, (2) get the defendant to admit noncompliance (presumably by refusing to report to an officer), and (3) revoke the probation. If you go that route, at a minimum I think you should use a separate form for the original sentence and the revocation, and you should be sure the defendant affirmatively waives the requisite notice and hearing on the probation violation.

At a violation hearing, a defendant can certainly admit to a violation and ask the court to revoke. I imagine the court generally will grant that request, but not in every case. The court may, for example, be inclined to keep a defendant on probation when he or she owes a large amount of restitution. In any event, even if the defendant is purportedly electing to serve, the court should be sure to check the first box in the “Conclusion and Order” section on page one of AOC-CR-607 or -608, saying that the suspended sentences were activated because of the violations, not the second box referring to elections to serve.

Am I elevating form over substance? Maybe. But in addition to the underlying rule-of-law issue, there’s a risk in both situations (at sentencing or at a violation hearing) that invocation of the non-existent elect-to-serve provision will result in the judgment getting kicked back, either by DOC or by the court of appeals, as happened in State v. Davis, 186 N.C. App. 305 (2007) (unpublished), and State v. Adams, 166 N.C. App. 517 (2004) (unpublished).

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Should Child Pornography Offenders Forfeit Their Homes?

Wednesday, October 21st, 2009

I’ll get to the topic of today’s post in just a moment, but first I wanted to note what I found to be a fascinating little tidbit about the Willingham case, which I’ve previously addressed here and here. It has to do with Willingham’s final words, and I promise that if you have the slightest interest in the case, you’ll be interested in this.

OK. On to today’s feature presentation. I got started thinking about whether child pornography offenders can be required to forfeit their homes because of this article from Kentucky. (Hat tip: Sentencing Law & Policy.) The short summary is that a federal criminal defendant who pled guilty to receiving child pornography was sentenced to 15.5 years in prison — and was required to forfeit his home, “because of the high volume of images and the length of time [he] used his home to download and view child pornography.”

I’ve blogged before about the controversy over child pornography sentencing. But the forfeiture question is a bird of a different feather. Would something like this be possible under North Carolina law?

The short answer is no. There are lots and lots of forfeiture provisions scattered among North Carolina’s criminal laws. Some are quite narrow, like the provisions for forfeiture of items used in and acquired as a result of wildlife and marine fisheries offenses, G.S. 113-137, and for forfeiture of motor vehicles involved in the disposal of more than 500 pounds of litter, G.S. 14-399(g).

Others are somewhat less narrow, insofar as they relate to very common offenses, but still remain tailored to a limited class of crimes. The provision for forfeiture of any vehicle used in a DWI after a DWI license revocation, G.S. 20-28.2 et seq., is of this type, as is the provision for forfeiture of property connected to violations of the controlled substances laws, G.S. 90-112 et seq.

Although the General Assembly presumably could have included a forfeiture provision in the child pornography laws, it didn’t. There’s no specific provision for, as an example, forfeiture of premises used for the possession of child pornography — or even of computers used to store it. See generally G.S. 14-190.13 et seq.

Thus, the question becomes whether our general forfeiture law could encompass premises used for the possession of child pornography. The general forfeiture statute is G.S. 14-2.3, and it provides that “any money or other property . . . acquired” by commission of a felony is subject to forfeiture, with a few narrow exceptions. But the home of a person who possesses child pornography is not acquired by the offense. It is arguably used to commit the offense, but our courts have held that to be distinct. See, e.g., State v. Triplett, 70 N.C. App. 341 (1984) (money used to commit a crime, but not obtained as a result of a crime, not subject to forfeiture).

A quick scan of the reported federal cases suggests that forfeiture is increasingly a part of federal child pornography cases. Forfeiture of the computers used to commit the crimes appears to be very common, and forfeiture of the defendant’s home is not unheard of. See, e.g., Keys v. United States, 545 F.3d 644 (8th Cir. 2008) (discussing history of a case in which the government sought forfeiture of the defendant’s house, only to have the district court judge rule that the forfeiture violated the Eighth Amendment’s prohibition against excessive fines); United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009) (discussing whether a child pornography defendant should have been permitted to cross-examine a law-enforcement officer about his agency’s financial interest in forfeiting the defendant’s house). Anyone think that North Carolina should go down this road?

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Does Mandatory AA/NA Violate the First Amendment?

Friday, October 16th, 2009

by School of Government faculty member Jamie Markham

The First Amendment says, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” There are two religion clauses in the amendment, the Establishment Clause and the Free Exercise Clause. Lately I’ve been getting a lot of questions about the Free Exercise Clause in relation to G.S. 14-208.18, the law that’s preventing some sex offenders from attending church. Thinking about that issue reminded me of a question I was asked about the Establishment Clause: does it violate the Establishment Clause to require a probationer to attend Alcoholics Anonymous or Narcotics Anonymous?

Three federal circuit courts have held that coerced participation in 12-step programs like AA and NA violates the First Amendment. In Kerr v. Ferry, 95 F.3d 472 (7th Cir. 1996), the Seventh Circuit held that requiring an inmate to attend NA meetings or risk suffering adverse effects for parole eligibility violated the Establishment Clause. The Second Circuit reached a similar conclusion in Warner v. Orange County Department of Probation, 115 F.3d 1068 (2d Cir. 1997), striking a probation condition requiring attendance at AA meetings. And most recently the Ninth Circuit determined that a parolee’s First Amendment rights were violated when his parole officer forced him to attend 12-step meetings as a condition of his parole. Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007). In the latter two cases the courts found the law sufficiently clearly established to abrogate the officers’ qualified immunity. Qualified immunity shields government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982). In other words, Warner and Inouye were able to go forward with lawsuits against their officers for damages for violation of their constitutional rights under 42 U.S.C. 1983. Numerous federal district courts and state supreme courts have reached the same conclusion.

It’s possible that the Fourth Circuit might rule differently. The judges here continue to apply the Lemon test (derived from Lemon v. Kurtzman, 403 U.S. 602 (1971)) in Establishment Clause cases, whereas the circuit courts listed above used a slightly different “coercion test.” Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003); Gray v. Johnson, 436 F. Supp. 2d 795, 800 n. 4 (W.D. Va. 2006) (distinguishing the tests). But given the general march toward unanimity around the country, I generally advise judges (and probation officers, who are really the ones at greatest risk of getting sued) to avoid AA or NA as a mandatory condition of probation. It’s okay to make participation optional. See Gray, 436 F. Supp. 2d at 801 (prison substance abuse program did not run afoul of the Establishment Clause when it made AA and NA participation optional). And it would be permissible to make participation in some type of recovery program mandatory as long as a secular option were available. See O’Connor v. California, 855 F. Supp. 303 (C.D. Cal. 1994) (upholding use of AA/NA as part of a drunk driving sentence when the defendant was given a choice over what program to attend). Examples of secular options include Secular Organizations for Sobriety, LifeRing, Rational Recovery, and SmartRecovery.

Finally, I’ll note that what’s not at issue in these cases is the question of whether AA is, in fact, religion-based. The litigants typically agree that it is, and the courts are unpersuaded by the idea that it’s “spiritual” and not religious. Here are the traditional twelve steps:

1.  We admitted we were powerless over alcohol-that our lives had become unmanageable.

2.  Came to believe that a Power greater than ourselves could restore us to sanity.

3.  Made a decision to turn our will and our lives over to the care of God as we understood Him.

4.  Made a searching and fearless moral inventory of ourselves.

5.  Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.

6.  Were entirely ready to have God remove all these defects of character.

7.  Humbly asked Him to remove our shortcomings.

8.  Made a list of all persons we had harmed, and became willing to make amends to them all.

9.  Made direct amends to such people wherever possible, except when to do so would injure them or others.

10.  Continued to take personal inventory and when we were wrong promptly admitted it.

11.  Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for knowledge of His Will for us and the power to carry that out.

12.  Having had a spiritual awakening as the result of these steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs.

What do you think?

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Proper Notice for SBM Determinations: State v. Stines

Friday, October 9th, 2009

by School of Government faculty member Jamie Markham

I mentioned earlier that the court of appeals decided two satellite-based monitoring cases this week. I discussed State v. Morrow on Wednesday. Today I’ll cover State v. Stines.

In Stines, the defendant was convicted of taking indecent liberties with children in 1997 and again in 2004. He was sentenced to active time for the 2004 conviction and released in 2007, at which point the Department of Correction made an initial determination under G.S. 14-208.40B(b) that he fell within one of the categories of sex offenders required to enroll in monitoring. DOC sent Mr. Stines a letter saying the department had “made the initial determination that [he met] the criteria set out in General Statute 14-208.40(a),” and ordered him to come to court for a hearing at which a judge would decide whether he had to enroll in SBM. The trial court found the defendant to be a recidivist and ordered him to enroll in SBM for life. Stines appealed.

After quickly rejecting Mr. Stines’s ex post facto argument, the court of appeals considered his due process claim. Stines argued that the State failed to give him sufficient notice of the basis for DOC’s preliminary determination because the hearing notification letter did not indicate which of the SBM eligibility categories (recidivist; aggravated offender; sexually violent predator; or offense involving the mental, physical, or sexual abuse of a minor) applied to him. The court agreed.

Enrollment in SBM, the court said, infringes on a significant liberty interest-it requires the physical attachment of a device to the offender, continuous surveillance of the offender’s movement, and compliance with DOC regulations. To avoid “serious doubts” about the constitutionality of the generalized notice Mr. Stines received, the court construed G.S. 14-208.40B(b) to require DOC to give the defendant notice not just that an initial SBM determination has been made, but also of the content of the determination. In other words, DOC must specify “the category or categories into which the offender falls and the basis for that conclusion.” The court remanded Mr. Stines’s case for a new SBM hearing.

I have a few thoughts about Stines. First, it seems to me that the court walks a pretty fine line in concluding that SBM infringes on a significant liberty interest but is not punitive. Indeed, in support of its liberty-infringement analysis the court cites to Commonwealth v. Cory, the only reported case in the nation in which a court finds that satellite-based monitoring amounts to punishment. See 911 N.E.2d 187 (Mass. 2009) (”There is no context other than punishment in which the State physically attaches an item to a person . . . that must remain attached for a period of years and may not be tampered with or removed on penalty of imprisonment. Such an imposition is a serious, affirmative restraint.”). This leads me to think that SBM, if not punishment, must be just about as close to punishment as you can possibly get. Other defendants making due process arguments (about the standard of proof in an SBM hearing, for example) could probably marshal the court’s language in Stines in support of a more trial-like hearing procedure.

Second, there’s an apparent disconnect between the court’s requirement of enhanced notice in Stines and its rejection of a very similar argument in State v. Morrow. Mr. Morrow argued that the SBM statute violated his due process rights by failing to give him notice of what facts would require him to be monitored. He went into the hearing, he said, with “absolutely no idea of the basis upon which the decision to require monitoring will be made.” The Morrow court dismissed the due process argument, noting that defendants could get some idea about the evidence that might come into play at an SBM hearing by examining DOC regulations on file with the Attorney General. The Stines court, meanwhile, found it unreasonable to require offenders to investigate and prepare to respond to all possible SBM eligibility categories in as little as 15 days, the minimum notice period set out in G.S. 14-208.40B(b). If anything it seems like Morrow, a conditional offender subject to the complicated and fact-laden “offense involving the abuse of a minor” and “highest possible level of supervision and monitoring” determinations, would derive greater benefit from a more detailed notification letter than Stines, an alleged recidivist for whom the SBM determination is relatively straightforward.

I suppose it’s possible to reconcile the cases: Mr. Morrow complained of a lack of notice of facts, whereas Mr. Stines complained that he didn’t know which eligibility category applied to him. But the court’s holding in Stines, that G.S. 14-208.40B(b) requires DOC to “specify the category set out in N.C. Gen. Stat. § 14-208.40(a) into which the Department has determined the offender falls and briefly state the factual basis for that conclusion,” appears to encompass both complaints. Based on that language I think DOC ought to beef up its bring-back hearing notification letter to include both the alleged SBM eligibility category and, briefly, the facts behind that allegation.

Finally, it appears I was wrong when I wrote in an earlier post that SBM hearings at sentencing should look pretty much the same as bring-back hearings. In Stines the court noted that G.S. 14-208.40A requires the district attorney to present evidence when an SBM hearing is conducted at sentencing, but G.S. 14-208.40B, the bring-back hearing statute, includes no comparable provision. The DA does, however, have to represent DOC at bring-back hearings under legislation enacted this term (S.L. 2009-387). It seems like that representation would require the DA to present evidence in line with DOC’s initial determination of SBM eligibility. Anyone have any thoughts on that?

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