Image of Man Signing Document

Image of Man Signing Document

12 Wake Forest L. Rev. Online 66

Craig S. Lerner[1]

Executive clemency for the dead is not unknown in American history, but it is rare. In recent years, there have been several high-profile instances, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law. Posthumous pardons are inevitably celebrated for repudiating past injustices and restoring faith in the legal system.

This Article views this widely praised phenomenon with skepticism. With the goal of piercing the rhetorical fog that envelops this issue, it considers the legal merits of two recent cases: the “Martinsville Seven,” who were pardoned, and George Floyd, who was not. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered. A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.

Introduction

On August 30, 2020, Virginia Governor Ralph Northam issued what was touted, in an accompanying press release, as “Posthumous Pardons for the ‘Martinsville Seven’ 70 Years After Unjust Executions.”[2] The document is, however, more ambiguous in what it purports directly to do, and it is even more puzzling in its broader ambitions. The governor’s pardon is, in this regard, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law.

Executive clemency for the dead is not unknown in American history, but it is rare. The Department of Justice’s official policy is that it will not even consider applications for posthumous pardons.[3] In 1997, President Clinton issued the first Presidential posthumous pardon—to a black West Point graduate who was convicted of fraud.[4] President George W. Bush issued another to a Florida businessman convicted of smuggling bombers to the fledgling state of Israel.[5] After a lull of over a decade, President Trump issued four posthumous pardons: to Susan B. Anthony, boxer Jack Johnson, and two lesser known persons.[6]

Governors and state clemency boards have been more liberal with posthumous pardons, but for much of American history they were still extraordinary occurrences. In 1893, Illinois Governor Peter Altgeld issued the first such pardon in our nation’s history; the recipients were three of the labor activists convicted of setting off a bomb in Haymarket Square.[7] Over the ensuing decades, posthumous pardons became more common, with some of the most high-profile being those issued to Leo Frank in 1986,[8] John Snowden in 2001,[9] Lenny Bruce in 2003,[10] Timothy Cole in 2010,[11] John Gordon in 2011,[12] Thomas and Meeks Griffin in 2009,[13] and the “Scottsboro Boys” in 2013.[14] In just the past three years, Florida Governor Ron DeSantis pardoned the “Groveland Four” (black men convicted of raping a white woman in 1949),[15] California Governor Gavin Newsom pardoned civil rights activist Bayard Rustin (convicted of a misdemeanor vagrancy violation in 1953),[16] and Louisiana Governor John Bel Edwards pardoned Homer Plessy (the defendant in the famous case, Plessy v. Ferguson).[17]

Besides Governor Northam’s pardon of the “Martinsville Seven,” the issue was thrust most prominently into the national spotlight in October 2021, when the Texas Board of Pardons and Paroles (the “Board”) recommended a posthumous pardon of George Floyd, in connection with his 2004 drug conviction.[18] Under state law, the pardon could not take effect without the governor’s signature; and for months, Governor Greg Abbott declined to do so.[19] His silent rebuke to the Board began to generate controversy, until the Board withdrew the application in December 2021.[20] The grounds for the withdrawal were shrouded in mystery, and the Board left open the possibility of renewing its application this year.[21]

Now is an apt moment, then, to reflect upon the mounting interest in posthumous pardons. In an Atlantic essay last year, “Justice for the Dead,” the author endorsed posthumous pardons for their ability to “repudiat[e] miscarriages of justice, especially those with racial overtones . . . . At their best, they have the potential to restore faith in a judicial system in which many people have lost confidence, and to further the work of building a more just, more tolerant, and more equitable society.”[22] The project was provided academic support in a recent article in the Columbia Law Review.[23] In “The Constitution After Death,” Professor Fred Smith argued that the dead should be conceived as “legally cognizable beings of memory,” and he specifically references the value of posthumous pardons in “protect[ing] the reputational interests of the dead.”[24]

Professor Smith begins his article by drawing upon Sophocles for the proposition that “[i]t is the dead/Not the living, who make the longest demands.”[25] It is an engaging opening; nonetheless, this Article operates on the optimistic hypothesis that Greek tragedy is not a useful guidepost when determining the contours of our law. More specifically, this Article aims to treat the broader issue of posthumous pardons through a close examination of two case studies: the Martinsville Seven and George Floyd. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered.

I. The Martinsville Seven

The Martinsville Seven attracted considerable publicity at the time of the crime,[26] but rapidly vanished from Virginia’s and the nation’s consciousness. Not a single law review article mentioned the case until 1996,[27] which was prompted by the publication of a book devoted to the case.[28] It is only in the past few years that the memory resurfaced, culminating in a pardon that Governor Northam announced with much fanfare, but which his successor apparently thought of so little consequence that the official government link to the document was subsequently broken.[29]

A. The Crime and Investigation

Reconstructing a crime in its immediate aftermath can be a perilous undertaking; doing so at a temporal distance of seventy years defies confident judgments. The following reconstruction of events tries to disentangle the facts known beyond peradventure with surmises of less certain probability.[30]

To begin with the certainties: On the afternoon of January 8, 1949, Ruby Stroud Floyd, a white thirty-two year old woman, walked into the predominantly black area of Martinsville, Virginia, seeking the house of a woman who owed her six dollars.[31] Several men accosted her as she asked for directions.[32] Around 7:30 that night, she knocked on the door of Mary Wade and announced that she had been raped by thirteen men.[33] According to Wade, she appeared frantic, had scratches on her arms, and her thighs were “red-rubbed.”[34] Around 8:15 p.m., Martinsville police arrived at Wade’s house and Floyd repeated her story.[35] That night, doctors examined her and found scratches on her knees, inner thighs, and buttocks, a large amount of twigs and dirt in her pubic hair, and “active, motile sperm” in vaginal smears.[36] The doctors did not discover any vaginal trauma at that time, however, and Floyd declined their recommendation to spend the night in the hospital.[37] The following morning, she checked herself into the hospital, where she spent much of the next few weeks; she was eventually diagnosed with an “‘inflammatory mass’ on the left side of her pelvis near the uterus caused by a rupture of thin-walled blood vessels.”[38]

The search for the offenders began immediately, on the evening of January 8, and concluded, except for one defendant, by dawn the following morning.[39] Police interviewed several witnesses and promptly picked up two men (Booker T. Millner and Frank Hairston, Jr.) suspected of participating in the crime.[40] Initial denials of involvement evolved within hours to signed confessions.[41] Four more men (John Clabon Taylor, James Luther Hairston, Howard Lee Hairston, and Francis DeSales Grayson) were picked up in the early hours of the morning.[42] The final confession, by Grayson, is noteworthy, as his case has figured prominently in the recent reconsideration of the case.[43] Unlike the other defendants, who were young men, Grayson was married, a U.S. Army veteran, and in his late thirties.[44] He was employed and had never been convicted of any crime.[45] According to the police report, after denying knowledge of the crime, a police detective told him that “some of the boys have told us their part in the case.”[46] After several minutes of silence, police records state that he said: “I’ll tell you the truth about it.”[47] He recounted a tale that coalesced, in almost all material respects, with what the other defendants had reportedly said: Four men (Joe Henry Hampton, Howard Hairston, Jr., Millner, and Frank Hairston) participated in an initial assault of Floyd.[48] When she tried to crawl away, three men joined the fray (Taylor, James Luther Hairston, and Grayson) and participated in a second phase of the sexual assault.[49] Hampton turned himself in on January 10.[50] Although he had had no contact with the other six over the prior forty-eight hours, he told a story that largely corroborated their collective account.[51]

The stories the seven men told included some mitigating and possibly even exonerating details. A few of the men suggested that Floyd consented,[52] which, if true, would have been a complete defense; but this seems, with full allowance for the uncertainty created by temporal distance, to be sufficiently incredible to be discounted. Some men, particularly in the first assault, pointed to their intoxication.[53] This was almost certainly true but would pose no barrier to a rape conviction then or now.[54] Finally, some men suggested that they were unable to penetrate Floyd.[55] This might be a defense to rape, but not to attempted rape, and a rape conviction would even be possible without penetration on a theory of accomplice liability.[56]

It should be emphasized that the confessions were secured through police practices that did not remotely conform to contemporary standards. None of the defendants were Mirandized, nor were any provided a lawyer until January 22.[57] That said, there is little indication that the pressure brought to bear on the suspects violated due process. The first six confessions were given in the middle of the night, with police engaging in miscellaneous “Inbau & Reid” techniques (good cop, bad cop; the cat is out of the bag; the train is leaving the station, etc.) that have been criticized but almost never result in a court holding a confession inadmissible.[58]

Legitimate questions were raised at trial, discussed below, about the reliability of the confessions.[59] Furthermore, there are also many indications that the crime triggered extraordinary passions.[60] The local jailor stated that had a lynch mob demanded the seven defendants, he would have acquiesced.[61] It is also striking that the Martinsville police chief thought it necessary to scatter the defendants to distant jails: only thus, he stated, was the risk of mob violence averted.[62]

What can we say happened on January 8, 1954? That Floyd was the victim of a sexual assault is incontestable, but by whom? It is possible that some of the defendants were not involved at all, or to the extent that they allegedly confessed, but complete confidence is not possible one way or the other. As already suggested, uncertainty about past crimes is entirely expected—a function of temporal distance. It would be the unusual case in which complete confidence about distant events is possible. The infamous Scottsboro Boys case provides a useful contrast. There, the putative victims of a sexual assault, when examined by a doctor, exhibited no injuries, nor was there even any evidence of recent sexual intercourse.[63] In the case of the Martinsville Seven, at a distance of over seventy years, we are inevitably in doubt about sundry crucial issues. Ordinarily, we would simply defer, absent compelling evidence, to the legal system’s contemporaneous judgment. This brings us to the fairness of the trials in this case.

B. The Trials

The Martinsville Seven trials can be viewed from two perspectives. When considered in the context of other criminal trials of black defendants in the pre-modern era, one understands the self-congratulatory tone taken by several Virginia public officials.[64] Indeed, compared with the trials in the Scottsboro case—an admittedly very low bar—the Martinsville Seven trials come to light as exquisitely fair.

First, each of the defendants had his own lawyer; and for some defendants, including Grayson, those lawyers were among the most skilled in the county.[65] The contrast with the Scottsboro case could not be more pronounced.[66] In addition, the judge severed the case into seven trials, thus taking steps to minimize cross-contaminating evidence.[67] The judge also cautioned the lawyers to avoid raising any racially divisive arguments, and the prosecutors apparently complied.[68] Defense lawyers filed a motion to change the venue, as a concession to the notoriety of the crime; and the judge held a hearing in which twenty-five witnesses appeared, including prominent local black citizens, several of whom testified that a fair trial was possible in Henry County.[69] The judge’s denial of the motion was not clearly wrong, even under contemporary standards.[70]

Several prosecution witnesses testified at the trial, including local individuals, police officers, medical examiners, and Floyd herself.[71] As already discussed, the evidence was not irrefutable, but it was incomparably more compelling than the flimsy evidence that produced convictions in other high-profile cases involving black defendants.[72] The defense lawyers conducted several effective cross-examinations, including of the victim herself.[73] And with respect to the police officers, defense lawyers drew attention to discrepancies and inaccuracies.[74] The defendants all took the stand in their own defense, and each repudiated his confession in some respect.[75] Finally, character witnesses took the stand for many of the defendants.[76] One would be hard-pressed to fault the defense lawyers for ineffective assistance of counsel—again, in stark contrast with the Scottsboro case.[77]

Yet if we view the Martinsville Seven trial from the perspective of 2022, the variations with modern practice are glaring. We should, however, distinguish between the respects in which those distinctions reflect legitimate differences in priorities and those differences that undermine confidence in the verdict. The brevity of the trial belongs in the former category. In the latter category, however, belong the composition of the jury and the sentence imposed. The jury pools in each case included between two and four blacks.[78] Again and again, some were excused by the judge for cause, and the remaining were peremptorily challenged by the prosecutor.[79] The result: seven all-white juries.[80] Undoubtedly, those challenges would not survive scrutiny under the modern understanding of a right to an impartial jury.[81] There is, furthermore, the sentence imposed. Rape was punishable in 1949 from five years to life in prison, or by death.[82] Of course, under the contemporary understanding of the Eighth Amendment, capital punishment is foreclosed for any crime other than homicide and possibly treason.[83] But it is anachronistic to impose our “standards of decency” in judging the constitutionality of capital punishment when imposed in prior eras.[84]

The problem is not that the jury and judge imposed a sentence that was, at law, possible. The problem is that the sentence was exclusively reserved for convicted black rapists—a fact that was brought to the attention of then Virginia Governor John S. Battle when he was considering a clemency petition.[85] White rapists, especially when the victim was black, often received lenient sentences.[86] Consider the case of Carl Burleson and Leonard Davis, two white police officers convicted of raping a black woman in Richmond in 1947.[87] Convicted of rape, they were each sentenced to seven years in prison.[88] Notwithstanding contemporaneous claims that race played no role in the trial, the sentence imposed by the jury on the Martinsville Seven fuels suspicion that the effectual truth is that race most certainly did.

The lingering question is whether any respect is owed the jury verdict and sentence. Does the composition of the jury and the sentence it imposed command us not simply to question, as an academic matter, the accuracy of the verdict but also to repudiate, as a formal legal matter, the judicial system that promulgated it?

C. The Pardon

Governor Northam answered that question with a resounding “maybe” in an eleven-paragraph pardon. The analysis below is quite critical of that pardon; the principal objections arise from defects in the reasoning and the overall sloppiness. That sloppiness is immediately apparent. After the first paragraph correctly recites the names of the seven defendants, the second paragraph jumbles the names of three defendants.[89] Even more disconcertingly, starting in paragraph three, the pardon focuses almost exclusively on one defendant: DeSales Grayson.[90] Although the names of the others are recited in paragraph seven, the legally dispositive paragraphs—in which the governor actually extends a pardon—mention only Grayson.[91] This is baffling insofar as the press release that accompanied the pardon refers to all seven.[92]

Key links in the chain of reasoning that culminates in that pardon are clumsily presented. The third paragraph pronounces that “race played an undeniable role during the identification, conviction, and the sentencing of Francis DeSales Grayson and the six other men.”[93] As already discussed, race almost certainly played a role in the death sentence imposed, but can one as confidently say that it played a role in the conviction and identification? Perhaps one can infer from the racial bias reflected in the sentence that racial bias was also evident in the finding of guilt—that is, that jurors’ prejudices played a role in their weighing of the evidence. It is unclear, moreover, what is intended by the pardon’s claim that race played a role in the identification of the defendants.[94] To be sure, the white victim identified her attackers as black men, and the defendants are black men: Is the pardon’s implication that Ruby Stroud Floyd falsely identified the defendants because of mistaken cross-racial bias? Is there any support for this claim? This is a grave source of error in the criminal justice system, and one that psychological studies have confirmed, and that the legal system should address;[95] however, the historical record is devoid of evidence that Floyd’s identification of her attackers was contaminated by cross-racial bias. The curiously allusive phrasing in the third paragraph points to a glaring absence in the pardon: none of the defendants are ever said to be innocent of the rape of Ruby Stroud Floyd.[96]

In the absence of such a finding, the pardon’s fourth through sixth paragraphs retreat to procedural questions and legal formalisms.[97] As the pardon observes, the voir dire process, which culminated in all-white juries, violated the Sixth Amendment requirement of an “impartial jury,” at least as that phrase has been understood since 1985.[98] The same objection can be raised, however, to the vast majority of convicted black defendants through the modern era: Are they all entitled to pardons?

The fifth paragraph further raises the question of the appropriateness, at least for purposes of extending pardons, of deploying contemporary constitutional standards when evaluating past criminal convictions.[99] The pardon observes that “capital punishment for crimes such as rape” violates a number of post-1972 Supreme Court cases.[100] But the Eighth Amendment prohibition on cruel and unusual punishments has been held to reflect “evolving standards of decency.”[101] Implicit is the acknowledgment that those standards could evolve, and that a punishment that was consistent with standards in 1949 and constitutional at that time might be inconsistent with those standards in 2022 and unconstitutional today.[102] Given the rarity of states imposing capital punishment for nonhomicide offenses today, its imposition for rape can be said to violate the Eighth Amendment in 2022, but no such confidence is possible in 1949, when roughly half of the states reserved the possibility of death sentences for rape.[103]

Later paragraphs of the pardon trail off into rhetoric that does little to justify the extension of a pardon to Grayson or the other defendants.[104] The pardon observes that “discriminatory Jim Crow laws” disfigured Virginia’s legal system for decades, which is indisputably true, but its connection to the innocence of the Martinsville Seven is opaque.[105] The pardon also observes that the seven defendants can no longer “share their truth.”[106] This formulation, whatever its merits in contemporary discourse,[107] is woefully out of place here.

Indeed, at the risk of sounding flippant, one is inclined to ask: Did anyone run the pardon past legal before it was issued? As already noted, the bizarre conclusion focuses exclusively on one of the Martinsville Seven:

Now, Therefore, I, Ralph S. Northam, Governor of the Commonwealth of Virginia, by virtue of the authority vested in me, posthumously grant Francis DeSales Grayson a Simple Pardon.[108]

But what about the other six defendants: Was their outcome not also unjust? And note that the pardon is a Simple Pardon, and not an Absolute Pardon.[109] The latter is reserved for those whom the governor is convinced are actually innocent.[110] Are we to infer from the form of the pardon that the governor doubts that the Martinsville Seven were actually innocent? If so, what was the point of insinuating skepticism about Ruby Stroud Floyd’s identification of her assailants?

II. Lessons from the Almost-Pardon of George Floyd

The death of George Floyd on May 25, 2020, in Minneapolis, convulsed the nation.[111] In the buildup to Officer Derek Chauvin’s murder trial, Floyd’s life came under intense scrutiny.[112] There were reports that, between 1997 and 2007, Floyd had been arrested nine times and served multiple jail terms.[113] One of those convictions, in 2004, was for the sale of a rock of crack cocaine.[114] The testimony of the arresting officer, Gerald Goines, was the only incriminating evidence.[115] Although Floyd denied the accusation, he agreed to a plea bargain, his attorney later claimed, because he faced twenty-five years in prison.[116] After serving a ten-month sentence, he was released and then committed an armed home invasion for which he was sentenced to five years in prison.[117]

Floyd’s 2004 conviction was among several hundred that were revisited years later, in the wake of revelations of police misconduct.[118] Specifically, Goines, the same officer who had arrested Floyd in 2004, participated in a drug raid in 2019 that resulted in the death of two of the house’s occupants.[119] It subsequently came to light that Goines had perjured himself in the warrant application.[120] Harris County District Attorney Kim Ogg ordered her office to review hundreds of cases that had been brought based on Officer Goines’s testimony.[121] With the District Attorney’s acquiescence, at least two convicted defendants succeeded in having their convictions overturned through judicial decree.[122]

In April 2021, Allison Mathis, the public defender who had represented Floyd in the 2004 charge, submitted a pardon application on behalf of Floyd.[123] Days later, District Attorney Ogg filed a letter expressing support.[124] And in October 2021, the Texas Board of Pardons and Paroles (the “Board”) unanimously recommended that Floyd receive a posthumous pardon.[125] The pardon sat on Governor Abbott’s desk for several months, eventually attracting speculation as to the cause of delay.[126] Then, in December 2021, the Board withdrew its recommendation.[127] In a letter addressed to Governor Abbott’s office, the Board’s presiding officer wrote that it was in the process of examining its own procedures and discovered some “departures” from its rules.[128] As a result, the Board withdrew its recommendation for Floyd and twenty-four others but indicated that it would review those applications in 2022.[129] Thus, according to the governor’s press secretary, the governor “did not have the opportunity to consider” Floyd’s petition.[130]

All of this was puzzling, but as is so often true, unravelling the puzzle may further our understanding. Mathis said the application had gone through a compliance review, and none of the Board’s members had raised any issues.[131] What, then, were the late-discovered “departures”? Compounding the mystery is a mismatch between the provisions of Texas law cited in Floyd’s application for a pardon and in the Board’s cryptic statement of its withdrawal of the recommendation.[132] Floyd’s application had been made pursuant to Section 143.13 of the relevant Texas Code, but the Board’s withdrawal suggested deficiencies under Section 143.2.[133] Floyd’s application plainly failed to meet the exacting standards set forth in Section 143.2, which governs “pardons for innocence.”[134] Such relief is permissible only when the Board receives either (a) the “written recommendation of at least two of the current trial officials of the sentencing court” that, on the basis of newly discovered evidence, the petitioner is actually innocent; or (b) a judicial order pronouncing the petitioner actually innocent.[135] Neither condition was satisfied in Floyd’s case.[136]

Floyd’s petition, however, was filed under Section 143.13, entitled “Posthumous Pardon,” which provides, in full: “Upon request from a person acting on behalf of a deceased person who was convicted of a felony offense, the Board will consider recommending a full pardon for the deceased person.”[137] Floyd’s application for a pardon, through his lawyer, satisfied the sparse terms of Section 143.13. It is, therefore, unclear why the Board decided, apparently in retrospect, that the requirements of Section 143.2 also apply to petitions filed under Section 143.13.[138]

The contrast between the rigor of Section 143.2 and the laxity of Section 143.13 nonetheless puts in bold relief the question before us: What should be required for the issuance of a posthumous pardon? Texas’s scheme can at least be credited with recognizing that special rules should apply to posthumous pardons. It would be absurd to condition a posthumous pardon on evidence submitted by “two of the current trial officials” who heard the case.[139] For defendants convicted long ago, those officials may themselves be dead or unable to give credible evidence.

On the other hand, is it not possible to channel the decision-making with respect to posthumous pardons more than Section 143.13? Indeed, the only limitation on the issuance of posthumous pardons cited in that section—that the request be by one “acting on behalf of a deceased person”[140]—is ill-chosen. Who is authorized to “act[] on behalf”? If the moving party must be a legal descendant, then circumstances could arise in which a dead person, however deserving of a pardon, would be ineligible, because there are no next of kin. Or does any Texan (or American? or person?) have standing to request a pardon on behalf of a deceased? And if so, on what basis are such pardons to be issued? Must “actual innocence” be established, even for those whose trials occurred long ago and as to which the facts are shrouded in the mists of time?

In short, Texas’s pardon scheme is preferable to Virginia’s in at least three ways: first, it provides a transparent screening process, in which pardon applications are processed by an independent board; second, at least for ordinary pardons, the board operates within relatively clear guidelines; and third, posthumous pardons are carved out as special cases. The principal defect is the failure to specify or even hint at what rules should govern posthumous pardons. What those rules might be is the issue to which this Article now turns.

III. Legally Exonerating the Dead: Costs and Benefits

Academic discussions of pardons in America tend to take one of two tracks—either lamenting their rarity or condemning their frivolity.[141] Both criticisms are well-founded. There are doubtless many people languishing in prison for crimes of which they are wholly innocent, excessively punished, or genuinely repentant; this reality is all the more intolerable when one reflects that the mere stroke of a president’s or governor’s pen could often remedy the injustice. [142] And yet when that pen is wielded, alas, how randomly it seems to select its beneficiaries.[143] The catalog of manifestly unmerited pardons is long. When governors and even presidents have been left to their own devices, pardons often seem recklessly granted, for personal or partisan gain.[144]

Posthumous pardons are likewise not exempt from criticism. Consider President Trump’s posthumous pardon of Susan B. Anthony.[145] She was charged with violating New York state law in 1872, when she illegally voted in the presidential election.[146] She was afforded zealous counsel and the opportunity to speak her mind after the guilty verdict, which she emphatically did, in a speech that did much to launch the women’s suffrage movement.[147] Indeed, the trial was a boon to Anthony’s cause, in giving her an abundance of free and overwhelmingly favorable publicity.[148] No effort was ever made to collect the penalty (a $100 fine) that was imposed—which was doubtless a good thing, as Anthony repeatedly said that she would never pay it.[149] The Susan B. Anthony Museum rejected the pardon, saying in the same spirit as Anthony herself, that accepting the pardon would have validated the trial.[150] Some observers mused that the president issued the pardon as a cynical ploy to attract women voters.[151]

Or consider President Trump’s pardon of boxer Jack Johnson.[152] Johnson aroused racial animosity throughout his career, and his prosecution in 1913 under the much-denigrated Mann Act was at least in part the result of prejudice.[153] Nonetheless, the Act remains on the books (used most recently against Ghislaine Maxwell).[154] There were other notorious prosecutions under the Act, such as that of F. Drew Caminetti, also in 1913, for crossing state lines with his mistress.[155] That conviction was upheld in a 1917 Supreme Court decision that held that consensual, nonmarital sex fell within the statute’s definition of “immoral sex.”[156] In light of Lawrence v. Texas,[157] should Caminetti be pardoned? Of course, the ceremony accompanying such a pardon would not be attended by celebrities such as Sylvester Stallone and Deontay Wilder, nor would it attract praise from far-flung political quarters.[158] Curiously, President Obama resisted the many calls to pardon Johnson, with his Attorney General, Eric Holder, reportedly saying: “To know the way in which he treated women, physically abused women, gives me pause.”[159]

Other high-profile posthumous pardons also raise concerns. When New York Governor George Pataki pardoned comedian Lenny Bruce, who had been convicted of obscenity, the applause was universal.[160] Bruce’s case was supported at the time (and after) by many celebrities, such as Woody Allen, Norman Mailer, and James Baldwin.[161] But what was achieved? Although Bruce was sentenced to four months for obscenity, he died, as the result of a drug overdose, in the pendency of the appeal; and so technically, his conviction was abated.[162] In any event, he was almost certain to prevail on appeal, as his co-defendant did, and as Bruce himself did in several related cases.[163] One can celebrate Bruce’s pardon as a vindication of the First Amendment,[164] but one might more cynically observe that such proclamations are easy ways for politicians to burnish their own reputations, even if the pardon does nothing to burnish the reputation of the putative beneficiary: Has anyone’s opinion of Lenny Bruce changed as the result of the pardon? And, why just Lenny Bruce? Why not Mae West, who actually served ten days in a New York prison for obscenity, but who, alas, has fewer living acolytes to rally to her cause?[165]

One might respond that even if very little good is accomplished by such posthumous pardons, what is the harm? Indeed, those wary of government actors might applaud posthumous pardons on the premise that every minute an elected politician devotes to such matters is a minute not spent on matters likely to harm the public interest. But let us discount such cynicism and operate on the opposite hypothesis—that a public official’s time is both finite and valuable. Are posthumous pardons the best use, or even a good use, of that time? Before weighing the supposed benefits, are there costs to posthumous pardons? In the category of actuals costs, any pardon undoes the finality of a verdict. The consequent uncertainty—and controversy—can fuel an appreciation of the wisdom in the adage about letting sleeping dogs lie. The several-decade saga involving the exoneration of Leo Frank is illustrative.

Cornell-educated, Frank was the Jewish factory manager of a pencil factory in Atlanta in 1913, when fourteen-year-old Mary Phagan was found murdered in the factory basement.[166] Jim Conley, the illiterate black nightwatchman who had discovered the victim, initially proved a convenient suspect, but prosecutors soon focused on a more luscious defendant: the rich Yankee factory manager.[167] Frank’s trial was far from a model of perfection, but it was not a mockery of justice.[168] Even after the U.S. Supreme Court issued an opinion affirming the conviction,[169] doubts continued to mount, intensified by a campaign on Frank’s part by the Jewish community in Atlanta and throughout the nation.[170] Governor Slanton commuted Frank’s sentence to life imprisonment, but the reprieve was brief. [171] On the evening of August 16, 1915, twenty-five armed men broke into the prison, abducted Frank, and lynched him the following morning.[172]

In 1986, the Georgia Board of Pardons and Paroles sought to correct the injustice and issued what was described as a pardon of Frank.[173] And yet, what one might expect to have brought a measure of “closure” to this unfortunate episode in history has accomplished exactly the opposite. The pardon was careful not to absolve Frank of the crime; it simply regretted the State’s failure to protect him while in custody and expressed misgivings about some of the trial’s procedures.[174] This has not satisfied many, who have continued to push for, and even demand, the full exoneration that Frank’s memory demands.[175] And yet, if Frank is innocent, then Conley was almost certainly guilty. Is it fair, after a century, on the basis of shaky evidence, to hold him responsible for murder? And then there is the family of Mary Phagan, who continue to insist on Frank’s guilt and have strenuously opposed a pardon.[176]

Let us reconsider the Martinsville Seven pardon in light of the ongoing Frank-pardon saga. Ruby Stroud Floyd was raped, almost certainly by more than one man, on January 8, 1949.[177] Recall that according to Governor Northam’s pardon, the Martinsville Seven each have a “truth.”[178] Even allowing the post-modern possibility of a multiplicity of truths, does Ruby Stroud Floyd not also have a truth? She testified—seven times—to the guilt of the Martinsville Seven.[179] Does the pardon repudiate her truth? Or is the pardon preserving respect for her truth, but only allusively suggesting the possibility that the Martinsville Seven were innocent, without actually saying so? Threading that needle would have required a more skillful rhetorician than was apparently employed in the former governor’s office.

In her essay on the Martinsville Seven, Professor Barbara Holden-Smith is very critical of a legal system that singled out black men for capital punishment, but a respect for the complexity of the case leads her to this observation:

There are two compelling stories here. On the one hand resides the horror of the South’s history of putting black men to death-first by mostly extra-legal lynching and later by state-sanctioned executions. On the other hand sits the horror of rape itself and all it symbolizes about the unjust treatment of women in our society.[180]

As with Leo Frank, a pardon of the Martinsville Seven, if approached with any legal rigor, presupposes a reassessment of the entire case; to do so requires a fuller investigation and accounting than was even begun. For starters, were Ruby Stroud Floyd’s descendants consulted before the pardon was issued? Furthermore, the curious phrasing of the pardon itself, singling out Grayson, raises the question: Were the other defendants equally exonerated? As in the Frank controversy, excusing one person of a crime may be an oblique way of accusing another; in the absence of newly discovered evidence, what justifies this remarkable step?

Pardoning George Floyd for drug possession might be said to be a less nettlesome enterprise, because there is no crime victim whose truth would be denied, or co-defendants whose guilt would be affirmed. But again, there is the hidden cost. The Texas Board of Pardons and Paroles has a stunningly large docket.[181] There are now over 150,000 people behind bars in Texas.[182] Hundreds of thousands more people labor under the miscellaneous burdens of a felony conviction.[183] In addition to clemency recommendations, the Board is responsible for which prisoners to release on parole, what the conditions of parole should be, and when revocation of parole is appropriate.[184] Is the best use of the Board’s time to debate what happened in 2004, when Officer Goines claimed to witness Floyd sell a $10 rock of crack cocaine?[185] Goines, we may assume, lied in a warrant application that resulted in a disastrous search in 2019,[186] but presumably at various points in his earlier life he told the truth. Harris County District Attorney Kim Ogg joined in the request to issue Floyd a posthumous pardon,[187] but it is unclear what steps, if any, were taken to arrive at any confidence of George Floyd’s innocence. Said Goines’s attorney in June 2020: “this is a transparent and opportunistic effort to capitalize on Floyd’s murder.”[188]

Ogg was narrowly reelected in November 2020.[189]

Conclusion

Posthumous pardons are emblematic of what has become a large and growing part of our government’s docket: symbolic legislation and executive orders.[190] The attraction of such gestures is straightforward: it allows public officials to associate themselves with noble causes at relatively little risk of offending anyone, or at worst, by offending only the incorrigibly dyspeptic.

This Article might seem to fall within the latter camp, but the aim is to persuade the reader that a measure of skepticism about posthumous pardons is appropriate. First, the costs to unraveling a long-ago conviction are often understated. Second, given the finitude of a public officials’ time and attention, the benefits conferred by the posthumous pardon are secured only at the expense of other pardons that might confer tangible benefits.

Viewed from this perspective, posthumous pardons are less clearly to be celebrated. In Floyd’s case, the Harris County District Attorney appropriately ordered a comprehensive review of every case Officer Goines brought over the course of his twenty-year career,[191] but surely priority should be assigned to living convicted defendants. Floyd’s tragic death sixteen years later and over 1,000 miles away cannot be undone by the pardon.

The Martinsville Seven pardon is almost a case study in how not to exonerate the dead. The pardon sloppily mixes insinuations that the victim misidentified the defendants, with implications that some, but not all, defendants might really have been guilty. The death sentences imposed on all seven defendants in that case were plainly the consequence of their race. That should have been the straightforward statement of Governor Northam, without the embellishments and flowery rhetoric that complicated the message and undermined its power.

The communal impulse to recognize past errors committed under the color of law is praiseworthy. At times, it is even appropriate to solemnize that impulse in the legal form of a pardon. But that impulse can take many other nonlegal forms—most notably, declarations of contrition by heads of state.[192] Such apologies can, and often should, be joined by monetary relief. Illustrative is the Civil Liberties Act of 1988, in which the U.S. Government not only apologized for the internment of Japanese Americans but also created a $1.25 billion compensation fund.[193] A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.

  1. . Professor of Law, Scalia Law School, George Mason University. The author thanks Thomas Coleman for research assistance.
  2. . Press Release, Governor Ralph Northam, Governor Northam Grants Posthumous Pardons for ‘Martinsville Seven’ 70 Years After Unjust Executions (Aug. 31, 2021) (available at https://wayback.archive-it.org/9773/20210901111106/https://www.governor.virginia.gov/newsroom/all-releases/2021/august/headline-908808-en.html) [hereinafter Northam Press Release]; Simple Pardon, Commonwealth of Virginia, Executive Department, Martinsville Seven Grant (Aug. 31, 2021), https://web.archive.org/web/20220105033831/https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/Martinsville-Seven-Grant.pdf [hereinafter Martinsville Seven Pardon].
  3. . Policies, Off. of the Pardon Att’y, https://www.justice.gov/pardon/policies (last updated Dec. 23, 2020).
  4. . Darryl W. Jackson et al., Bending Toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper, 74 Ind. L.J. 1251, 1251 (1999).
  5. . Eric Lichtblau, Jailed for Aiding Israel, but Pardoned by Bush, N.Y. Times (Dec. 23, 2008), https://www.nytimes.com/2008/12/24/washington/24pardons.html?hp.
  6. . Policies, supra note 2.
  7. . Stephen Landsman, When Justice Fails, 84 Mich. L. Rev. 824, 829 (1986).
  8. . Jackson, supra note 3, at 1288.
  9. . John Snowden (1890-1919), Archives of Md., https://msa.maryland.gov/megafile/msa/speccol/sc3500/sc3520/013600/013632/html/13632bio.html (last visited Apr. 5, 2022).
  10. . John Kifner, No Joke! 37 Years After Death Lenny Bruce Receives Pardon, N.Y. Times (Dec. 24, 2003), https://www.nytimes.com/2003/12/24/nyregion/no-joke-37-years-after-death-lenny-bruce-receives-pardon.html.
  11. . The Innocence Project & Maurice Possley, Timothy B. Cole, Nat’l Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3114 (last updated Mar. 10, 2015).
  12. . Press Release, Off. of the Governor, Governor Lincoln D. Chafee Pardons John Gordon, (Jun. 29, 2011) (available at https://www.ri.gov/press/view/14182).
  13. . Frank James, Tom Joyner’s Wrongly Executed Relatives Cleared ­– 94 Years Too Late, NPR (Oct. 14, 2009, 8:15 PM), https://www.npr.org/sections/thetwo-way/2009/10/tom_joyners_falsely_executed_r.html.
  14. . Verna Gates, Alabama Pardons Scottsboro Boys in 1931 Rape Case, Reuters (Nov. 21, 2013, 11:20 AM), https://www.reuters.com/article/us-usa-alabama-scottsboro/alabama-pardons-scottsboro-boys-in-1931-rape-case-idUSBRE9AK0X720131121.
  15. . Jacey Fortin, Florida Pardons the Groveland Four, 70 Years After Jim Crow-Era Rape Case, N.Y. Times (Jan. 11, 2019), https://www.nytimes.com/2019/01/11/us/groveland-four-pardon-desantis.html.
  16. . Samantha Schmidt, Decades After His Arrest For Having Sex With Men, A Gay Civil Rights Leader Is Pardoned, Wash. Post (Feb. 5, 2020), https://www.washingtonpost.com/history/2020/02/05/bayard-rustin-newsom-pardon/.
  17. . Press Release, Off. of the Governor, Gov. Edwards Signs the First and Historic Posthumous Pardon of Civil Rights Leader Mr. Homer A. Plessey (Jan. 5, 2022) (available at https://gov.louisiana.gov/index.cfm/newsroom/detail/3521).
  18. . Kevin Reynolds, Texas Board Recommends George Floyd Receive a Posthumous Pardon for 2004 Houston Drug Arrest, Tex. Trib. (Oct. 4, 2021, 7:00 PM), https://www.texastribune.org/2021/10/04/texas-george-floyd-pardon-posthumous/.
  19. . Jolie McCullough, Texas Gov. Greg Abbott Remains Silent on Posthumous Pardon for George Floyd, Tex. Trib. (Nov. 29, 2021, 7:00 PM), https://www.texastribune.org/2021/11/29/texas-greg-abbott-george-floyd-pardon/.
  20. . Kate McGee, Texas Board Rescinds Recommendation for Posthumous Pardon of George Floyd, Tex. Trib. (Dec. 23, 2021, 6:00 PM), https://www.texastribune.org/2021/12/23/george-floyd-texas-pardon/.
  21. . Id.
  22. . Scott D. Seligman, Justice for the Dead, Atlantic (Oct. 26, 2021), https://www.theatlantic.com/ideas/archive/2021/10/posthumous-pardons-justice-dead/620485/.
  23. . Fred O. Smith, The Constitution After Death, 120 Colum. L. Rev. 1471 (2020).
  24. . Id. at 1472, 1513.
  25. . Id. at 1473 (quoting Sophocles’ Antigone).
  26. . Carol S. Steiker, Remembering Race, Rape, and Capital Punishment, 83 Va. L. Rev. 693, 695 (1997).
  27. . Barbara Holden-Smith, Inherently Unequal Justice: Interracial Rape and the Death Penalty, 86 J. Crim. L. & Criminology 1571, 1574 (1996).
  28. . See generally Eric W. Rise, The Martinsville Seven: Race, Rape, and Capital Punishment (1995).
  29. . The link that was active when Ralph Northam was governor is now broken. The document is now accessible only through Wayback Machine Internet Archives. See Martinsville Seven Pardon, supra note 1.
  30. . The facts of the following two paragraphs are drawn from Rise, supra note 27, at 7–20, and Hampton v. Commonwealth, 58 S.E.2d 288, 289–90 (Va. 1950).
  31. . Rise, supra note 27, at 7.
  32. . Id. at 8.
  33. . Id. at 9.
  34. . Id.
  35. . Id. at 10.
  36. . Id. at 11.
  37. . Id.
  38. . Id. at 17, 19–20.
  39. . Id. at 10, 16.
  40. . Id. at 10.
  41. . Id. at 12–15.
  42. . Id. at 14.
  43. . See id. at 16; Martinsville Seven Pardon, supra note 1.
  44. . Rise, supra note 27, at 15.
  45. . Id.
  46. . Id.
  47. . Id. at 16.
  48. . Id.
  49. . Id.
  50. . Id. at 17.
  51. . Id. at 18.
  52. . See id.
  53. . Id. at 13.
  54. . Under Virginia law, voluntary intoxication is only a defense to premediated murder. Lawlor v. Davis, 764 S.E.2d 265, 276 (Va. 2014).
  55. . Rise, supra note 27, at 15–17.
  56. . Technically, the conviction would be for rape as a principal in the second degree. Sutton v. Commonwealth, 324 S.E.2d 665, 671 (Va. 1985).
  57. . Rise, supra note 27, at 19.
  58. . See, e.g., Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by Police, 76 Or. L. Rev. 775, 785 (1997).
  59. . See infra Subpart I.B.
  60. . Rise, supra note 27, at 18–19.
  61. . Id. at 18.
  62. . Id. at 19.
  63. . Michael J. Klarman, Scottsboro, 93 Marq. L. Rev. 379, 385 (2009).
  64. . Hampton, 58 S.E.2d at 294 (quoting trial judge: ‘The public in this community should be congratulated upon the way they have conducted themselves”).
  65. . Rise, supra note 27, at 29 (the defense lawyers included a state legislator, a former commonwealth’s attorney, and “one of the foremost defense lawyers in this entire area”).
  66. . See Klarman, supra note 62, at 383 (defense lawyers included a “local septuagenarian” and an alcoholic who “could scarcely walk straight in the morning”).
  67. . Rise, supra note 27, at 29.
  68. . Id. at 30.
  69. . Id. at 31–32.
  70. . Compare Hampton, 58 S.E.2d at 293–94 with Skilling v. United States, 561 U.S. 358, 378 n. 11, 382 (2010).
  71. . Rise, supra note 27, at 38–40.
  72. . See, e.g., Ellis Cose, The Saga of the Scottsboro Boys, ACLU (July 27, 2020), https://www.aclu.org/issues/racial-justice/saga-scottsboro-boys.
  73. . Rise, supra note 27, at 38–45; Hampton, 58 S.E.2d at 296–97.
  74. . Rise, supra note 27, at 43–45.
  75. . Id. at 43.
  76. . Id. at 45.
  77. . Compare Rise, supra note 27, at 38–45, with Klarman, supra note 62, at 383.
  78. . Rise, supra note 27, at 36.
  79. . Id. at 36–37.
  80. . Id.
  81. . See Batson v. Kentucky, 476 U.S. 79, 79–80 (1986).
  82. . Rise, supra note 27, at 47.
  83. . Kennedy v. Louisiana, 554 U.S. 407, 473 (2008).
  84. . See Trop v. Dulles, 356 U.S. 86, 100–01 (1958).
  85. . Dale M. Brumfield, Seven Black Men, Seven Death Penalties, Medium (June 5, 2019), https://medium.com/lessons-from-history/seven-black-men-seven-death-penalties-38b1a1bd027. See generally David C. Baldus & George Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DePaul L. Rev. 1411 (2004).
  86. . Baldus & Woodworth, supra note 84, at 1415–17.
  87. . See Davis v. Commonwealth, 45 S.E.2d 167, 169 (Va. 1947).
  88. . Id. at 168.
  89. . “James Luther Taylor” in the second paragraph is a curious amalgam of two of the defendants: James Luther Hairston and John Clabon Taylor. See Martinsville Seven Pardon, supra note 1. Also, the second paragraph refers to “James (Joe) Henry Hampton,” which apparently corresponds to “Joe Henry Hampton” in the first paragraph. Id. At no point in any of the legal filings was this defendant referred to as “James (Joe),” so it is unclear what inspired the pardon’s author to adopt this formulation. See, e.g., Hampton, 58 S.E.2d at 288–92, 299, 301–02 (referring to “Joe Henry Hampton” throughout).
  90. . See Martinsville Seven Pardon, supra note 1.
  91. . Id.
  92. . Northam Press Release, supra note 1.
  93. . Martinsville Seven Pardon, supra note 1.
  94. . Id. at ¶ 3.
  95. . See, e.g., John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 Am. J. Crim. L. 207, 214 (2001).
  96. . Martinsville Seven Pardon, supra note 1.
  97. . Id.
  98. . See Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 Md. L. Rev. 107, 109 (1994) (discussing the Batson doctrine, which “hinders both sides in a criminal case from the use of racially based peremptory strikes in jury selection”).
  99. . Martinsville Seven Pardon, supra note 1.
  100. . Id.
  101. . Trop v. Dulles, 356 U.S. 86, 101 (1958).
  102. . See Kennedy v. Louisiana, 554 U.S. 407, 422–24 (2008) (relying on fact that between 1930 and 1964, 455 people convicted of rape were executed, whereas death sentences for rape became rare thereafter).
  103. . Herbert L. Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1073 (1964).
  104. . See Martinsville Seven Pardon, supra note 1.
  105. . Id.
  106. . Id.
  107. . See Conor Friedersdorf, The Difference Between “Your Truth” and “The Truth,” Atlantic (Jan. 8, 2018), https://www.theatlantic.com/politics/archive/2018/01/the-power-and-perils-of-speaking-your-truth/549968/.
  108. . See Martinsville Seven Pardon, supra note 1.
  109. . Id.
  110. . Types of Pardons in Virginia and Eligibility Information, Sec’y of the Commonwealth, https://www.commonwealth.virginia.gov/media/governorvirginiagov/secretary-of-the-commonwealth/pdf/_-pardon-questionnaire-1-1-16.pdf (last visited Apr. 3, 2022).
  111. . See Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020, 6:49 AM), https://time.com/5847967/george-floyd-protests-trump/.
  112. . See Luis Andres Henao et al., A Long Look at the Complicated Life of George Floyd, Chi. Trib. (June 11, 2020, 11:17 AM), https://www.chicagotribune.com/nation-world/ct-nw-life-of-george-floyd-biography-20200611-cxmlynpyvjczpbe6izfduzwv54-story.html.
  113. . Some of the more extravagant claims of Floyd’s criminal history are meticulously fact-checked in Gabrielle Settles, A Post Exaggerates George Floyd’s Criminal History, Politifact (Jul. 28, 2021), https://www.politifact.com/factchecks/2021/jul/28/facebook-posts/post-exaggerates-george-floyds-criminal-history/. That article includes a screenshot of the nine offenses listed in the County database. Id.
  114. . See Juan A. Lozano, Texas Board Recommends Posthumous Pardon for George Floyd in 2004 Drug Arrest; Request Awaiting Governor’s Approval, USA Today (Oct. 5, 2021, 2:29 P.M.), https://www.usatoday.com/story/news/nation/2021/10/05/george-floyd-may-granted-posthumous-pardon-2004-drug-arrest/6007864001/.
  115. . See Michael Daly, The Monster Cop Who Encountered George Floyd in Houston, U.S. News (Jun. 11, 2020), https://www.thedailybeast.com/gerald-goines-the-monster-cop-who-encountered-george-floyd-in-houston.
  116. . St. John Barned-Smith, George Floyd Should Receive Posthumous Pardon in 2004 Goines Arrest, State Board Recommends, Hous. Chron., https://www.houstonchronicle.com/news/houston-texas/houston/article/George-Floyd-should-receive-posthumous-pardon-16508585.php (last updated Oct. 4, 2021, 6:50 PM).
  117. . Arelis R. Hernandez, George Floyd’s America: A Knee On His Neck, Wash. Post, https://www.washingtonpost.com/graphics/2020/national/george-floyd-america/policing/ (last updated Oct. 26, 2020, 7:54 AM) (noting that after arrest, Floyd faced up to forty-years in prison but, due to circumstantial evidence, was offered a twelve-year plea deal and then the ultimately accepted five-year plea deal).
  118. . Chloe Alexander, Texas Parole Board Recommends Posthumous Pardon for George Floyd in 2004 Conviction, KHOU 11, https://www.khou.com/article/news/crime/texas-parole-board-geroge-floyd-clemency/285-2803bd32-cffb-4085-9b01-9350318fed7e (Oct. 4, 2021, 6:30 PM).
  119. . Letter from Kim Ogg, Harris Cnty. Dist. Att’y, to Texas Bd. of Pardons & Paroles (Apr. 28, 2021) (available at https://s3.documentcloud.org/documents/21076468/20210428-texas-board-of-pardons-and-paroles.pdf) [hereinafter Ogg Letter].
  120. . ‘Procedural Errors’ Mean No Posthumous Pardon For George Floyd Regarding 2004 Drug Arrest In Houston, CBS DFW 21 (Dec. 24, 2021, 7:35 AM), https://dfw.cbslocal.com/2021/12/24/procedural-errors-pardon-george-floyd-2004-drug-arrest-houston-texas/.
  121. . Ogg Letter, supra note 118.
  122. . Ex parte Otis Mallet, 602 S.W.3d 922 (Tex. Crim. App. 2020); Ex parte Steven Mallet, 620 S.W.3d. 797, 798 (2021).
  123. . See Reynolds, supra note 17.
  124. . Ogg Letter, supra note 118.
  125. . Reynolds, supra note 17.
  126. . See McCullough, supra note 18.
  127. . Letter from David Gutiérrez, Presiding Officer, Texas Bd. of Pardons & Paroles, to James Sullivan, Gen. Couns., Off. of the Governor (Dec. 16, 2021), https://gov.texas.gov/uploads/files/press/BPP_Withdrawal.pdf. [hereinafter Gutiérrez Letter]
  128. . Id.
  129. . Id.
  130. . Press Release, Off. of the Texas Governor, Governor Abbott Grants Clemency To Eight Texans Recommended By Texas Board Of Pardons And Paroles (Dec. 23, 2021) (available at https://gov.texas.gov/news/post/governor-abbott-grants-clemency-to-eight-texans-recommended-by-texas-board-of-pardons-and-paroles).
  131. . Kate McGee, Texas board rescinds recommendation for posthumous pardon of George Floyd, Tex. Trib. (Dec. 23, 2021), https://www.texastribune.org/2021/12/23/george-floyd-texas-pardon/.
  132. . Compare Ogg Letter, supra note 118 (request for pardon filed under 37 Tex. Admin. Code § 143.13), with Gutiérrez Letter, supra note 126 (finding “departures” under §§ 143.2, 143.6, 143.10).
  133. . See Ogg Letter, supra note 118; Gutiérrez Letter, supra note 126.
  134. . See 37 Tex. Admin. Code § 143.2 (2018).
  135. . Id.
  136. . See Ogg Letter, supra note 118 (agreeing with pardon recommendation because arresting officer later found to be unreliable but not attaching any recommendation from trial officials or a judicial order).
  137. . 37 Tex. Admin. Code § 143.13 (2018).
  138. . See Gutiérrez Letter, supra note 126.
  139. . 37 Tex. Admin. Code § 143.2.
  140. . 37 Tex. Admin. Code § 143.13.
  141. . See, e.g., Paul J. Larkin, Guiding Presidential Clemency Decisionmaking, 18 Geo. J. L. & Pub. Pol’y 451 (2020); Chet Flanders, Pardons and the Theory of the Second Best, 65 Fla. L. Rev. 1559 (2013); Robert L. Misner, 41 Wm. & Mary L. Rev. 1303 (2000).
  142. . In some states, governors can only issue pardons after first receiving a recommendation by a parole board; in a minority of states, the legislature has delegated the power to issue pardons exclusively to a parole board. See Kristen H. Fowler, Comment, Limiting the Federal Pardon Power, 83 Ind. L.J. 1651, 1662–64 (2008).
  143. . See, e.g., Sarah Schindler, Pardoning Dogs, 21 Nev. L.J. 117 (2020).
  144. . A recent, notably ill-conceived pardon was issued by Kentucky’s Governor Matt Bevin in his final days in office to a convicted killer, whose family had hosted a political fundraiser for him. Pardoned Kentucky Killer Sentenced to 42 Years in Prison, NBC News (Jan. 19, 2022, 6:18 AM), https://www.nbcnews.com/news/us-news/pardoned-kentucky-killer-sentenced-42-years-prison-rcna12693. Federal charges were subsequently brought, and the pardoned individual was convicted in federal court for the same offense. Id.
  145. . Executive Grant of Clemency, Donald J. Trump: President of the United States of America, Unconditional Posthumous Pardon of Susan B. Anthony (Aug. 18, 2021) (available at https://www.justice.gov/pardon/page/file/1307006/download).
  146. . For the details of Anthony’s trial, see Rayne L. Hammond, Trial and Tribulation: The Story of United States v. Anthony, 48 Buff. L. Rev. 981, 982 (2000).
  147. . See id. at 1029–31.
  148. . Id. at 1032.
  149. . See id. at 1031–32.
  150. . See Neda Ulaby, Susan B. Anthony Museum Rejects President Trump’s Pardon of the Suffragist, NPR (Aug. 20, 2020, 2:45 PM), https://www.npr.org/2020/08/20/904321406/susan-b-anthony-museum-rejects-president-trumps-pardon-of-the-suffragette.
  151. . Libby Cathey, Critics Pressure Trump to Rescind Susan B. Anthony Pardon, ABC News (Aug. 19, 2020, 4:15 PM), https://abcnews.go.com/Politics/pressure-builds-trump-rescind-susan-anthony-pardon/story?id=72469547.
  152. , Executive Grant of Clemency, Donald J. Trump: President of the United States of America, Unconditional Pardon of John “Jack” Arthur Johnson (May 4, 2018) (available at https://www.justice.gov/pardon/page/file/1066366/download).
  153. . See Denise C. Morgan, Jack Johnson: Reluctant Hero of the Black Community, 32 Akron L. Rev 529, 549–55 (1999); see also 18 U.S.C. § 2421.
  154. . Melissa Gira Grant, The Law Was Never Meant for Ghislaine Maxwell, New Republic (July 10, 2020), https://newrepublic.com/article/158387/law-never-meant-ghislaine-maxwell.
  155. . See Caminetti v. United States, 242 U.S. 470, 482–83 (1917).
  156. . Id. at 491–93.
  157. . 539 U.S. 558, 578 (2003) (“The State cannot demean [petitioners’] existence or control their destiny by making their private sexual conduct a crime.”).
  158. . See John Eligon & Michael D. Shear, Trump Pardons Jack Johnson, Heavyweight Boxing Champion, N.Y. Times (May 24, 2018), https://www.nytimes.com/2018/05/24/sports/jack-johnson-pardon-trump.html.
  159. . Kelefa Sanneh, Donald Trump, The Fighter-in-Chief, Pardons Jack Johnson, New Yorker (May 26, 2018), https://www.newyorker.com/sports/sporting-scene/donald-trump-the-fighter-in-chief-pardons-jack-johnson.
  160. . Kifner, supra note 9.
  161. . Obscenity Case Files: People v. Bruce (The Lenny Bruce Trial), CBLDF, http://cbldf.org/about-us/case-files/obscenity-case-files/people-v-bruce-the-lenny-bruce-trial/ (last visited April 2, 2022).
  162. . See Kifner, supra note 9; Durham v. United States, 401 U.S. 481, 482–83 (1971) (holding that death during the pendency of an appeal “abates not only the appeal but also all proceedings had in the prosecution from its inception”).
  163. . Ronald K.L. Collins, Lenny Bruce and the First Amendment: Remarks at Ohio Northern University Law School, 30 Ohio N.U. L. Rev. 15, 30 (2004).
  164. . Id. at 31.
  165. . Charlotte Burns, Sex: The Play That Put Mae West in Prison Returns to New York, Guardian (Sept. 29, 2016), https://www.theguardian.com/stage/2016/sep/29/sex-play-mae-west-new-york#:~:text=West%20was%20sentenced%20to%2010,of%20success%20wrong%20by%20wrong%E2%80%9D.
  166. . The account here relies on Steve Oney, And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank (2004).
  167. . See Oney, supra note 165, at 118–44.
  168. . The issue is still hotly debated, but Oney’s elaborate discussion of the trial, id. at 190–344, does much to undercut the narrative implicit in Justice Holmes’s dissenting opinion in Frank v. Mangum, 237 U.S. 309, 345–50 (1915). Oney makes clear that Frank had extraordinarily diligent counsel, a fair judge, and attentive jurors; he implies that the case was crucially lost because Frank, although honest, was an unappealing witness—cold, humorless, repetitive. Oney, supra note 165, at 300–03.
  169. . See Frank, 237 U.S. at 345 (1915).
  170. . Oney, supra note 165, at 474–80.
  171. . Id. at 503–12.
  172. . See Clement Charlton Mosely, The Case of Leo M. Frank 1913–1915, 51 Ga. Hist. Q. 42, 54 (1973); Oney, supra note 165, at 561–72.
  173. . Georgia Pardons Victim 70 Years After Lynching, N.Y. Times (Mar. 12, 1986), https://www.nytimes.com/1986/03/12/us/georgia-pardons-victim-70-years-after-lynching.html.
  174. . See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 74 n.274 (1987).
  175. . Our View – The Pardon, Atlanta Jewish Times (Aug. 24, 2015), https://www.atlantajewishtimes.com/our-view-the-pardon/.
  176. . On the ongoing controversy, see Steve Oney, Did Leo Frank Kill Mary Phagan? 106 Years Later, We Might Finally Find Out for Sure, Atlanta (May 31, 2019), https://www.atlantamagazine.com/news-culture-articles/did-leo-frank-kill-mary-phagan-106-years-later-we-might-finally-find-out-for-sure/.
  177. . See supra text accompanying notes 31–51.
  178. . See Martinsville Seven Pardon, supra note 1.
  179. . See Rise, supra note 27, at 36–38.
  180. . Holden-Smith, supra note 26, at 1581.
  181. . See Exec. Serv., Texas Dep’t. of Crim. Just., Fiscal Year 2019 Statistical Report 6 (2020).
  182. . Incarceration Trends in Texas, Vera Inst. of Just., https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-texas.pdf (last visited May 13, 2022).
  183. . See supra note 180, at 6.
  184. . See About Us: Texas Bd. of Pardons and Paroles, https://www.tdcj.texas.gov/bpp/AboutUs.htm (last visited Apr. 5, 2022).
  185. . See supra notes 113–15.
  186. . See supra notes 113–15.
  187. . See Ogg Letter, supra note 118.
  188. . Jack Bleiberg, Texas Prosecutors Probe Irregularities in 2004 Floyd Arrest, AP News (June 13, 2020), https://apnews.com/article/arrests-us-news-houston-texas-george-floyd-f1025d8bf9ac755f47bd883fbe312d0f.
  189. . See Kim Ogg, Ballotpedia, https://ballotpedia.org/Kim_Ogg (last visited May 20, 2022).
  190. . William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 531–32 (2001); Andrew Cohen, Symbolic Legislation to Nowhere, Atlantic (Feb. 23, 2012), https://www.theatlantic.com/politics/archive/2012/02/symbolic-legislation-to-nowhere-why-statehouses-fail-in-governance/253488/.
  191. . See Ogg Letter, supra note 118.
  192. . See Hugh Mulligan, Better Late Than Never—Sephardic Jews Savor Spain’s Apology, L.A. Times (May 17, 1992, 12:00 AM), https://www.latimes.com/archives/la-xpm-1992-05-17-mn-190-story.html.
  193. . Civil Liberties Act of 1988, Pub. L. No. 100–383 (codified at 50 U.S.C. § 1989).

By Cameron Bray

On April 20, 2022, attorneys and Justices of the United States Supreme Court sparred over whether Miranda warnings[1] are a constitutional right or a “judicially crafted prophylactic rule,”[2] as lawyer Roman Martinez argued in open court.  In the case of Vega v. Tekoh, the Court granted certiorari[3] of “whether a plaintiff may state a claim for relief against a law enforcement officer under Section 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda.”[4]The case centers around the Fifth Amendment right against self-incrimination[5] and the Civil Rights Act of 1871, 42 U.S.C. § 1983, which grants a damages remedy for violations of constitutional and statutory civil rights.[6]  At issue is the precedent case Dickerson v. United States,[7] which upheld Miranda in spite of Congress[8] in 2000 but described the doctrine as “constitutionally based”[9] and having “constitutional underpinnings”[10] rather than as a true-born, fundamental constitutional right, like the right to remain silent at trial.[11]

The facts of Vega v. Tekoh are in controversy, but the New York Times reports that respondent, Terence B. Tekoh, is “a hospital attendant who was accused of sexually abusing an immobilized patient receiving an emergency MRI.”[12]  On the flip side, petitioner, Carlos Vega, is a sheriff’s deputy in Los Angeles County who interrogated Mr. Tekoh in connection with a “credible report of sexual assault.”[13]  Accounts differ as to the nature of the interrogation—whether it was coercive or not[14]—but by all accounts, Deputy Vega did not Mirandize Mr. Tekoh prior to questioning, Mr. Tekoh signed a confession, a California trial court admitted the statement in evidence, and a jury acquitted Mr. Tekoh on the merits.[15]

The federal district court, in ruling on Mr. Tekoh’s § 1983 suit against Los Angeles County, held that the use of an un-Mirandized statement was insufficient to show a violation of his right against self-incrimination.[16]  However, the Court of Appeals for the Ninth Circuit, in a published opinion, reversed and held that a plaintiff may state a claim against the State under § 1983 where “the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding.”[17]  In so ruling, Judge Wardlaw on behalf of the panel vacated the court’s judgment and remanded for a new trial with orders to include Mr. Tekoh’s instruction on un-Mirandized confessions.[18]  The court of appeals then denied en banc review, with seven judges dissenting.[19]

Based on oral argument in Vega v. Tekoh, it remains to be seen whether the Supreme Court will rule Miranda a constitutional “right” or mere prophylactic rule under the Fifth Amendment.[20]  Either way, with police interrogations and misconduct increasingly under scrutiny, the decision will have a major impact on § 1983 lawsuits moving forward beyond the current Term.[21]  A rule in favor of Mr. Tekoh could create a world in which an un-Mirandized statement in evidence gives rise to liability not just in a few federal circuits, but in all courts across the United States.[22]


[1] In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444 (1966) (Warren, C.J.), the Court held that “[p]rior to any questioning, the [arrestee] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”  This American policing practice, as seen on shows like Cops and Law & Order, has come to be known as a “Miranda warning” or “Mirandizing” the suspect.

[2] Jordan S. Rubin, Miranda Warnings Probed by Supreme Court in Police-Suit Case, Bloomberg L. (Apr. 20, 2022), https://news.bloomberglaw.com/bloomberg-law-news/miranda-warnings-probed-by-supreme-court-in-police-suit-appeal.

[3] Vega v. Tekoh, 142 S. Ct. 858 (2022) (reviewing judgment of the Court of Appeals for the Ninth Circuit).

[4] Petition for Writ of Certiorari, Vega, 142 S. Ct. 858 (No. 21-499), 2021 WL 4553767.

[5] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V (emphasis added).  The relevant provision for Miranda warnings is called the Self-Incrimination Clause of the Fifth Amendment.

[6] “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .” 42 U.S.C. § 1983.  Section 1983 is the go-to cause of action for civil rights plaintiffs against state actors such as police officers and sheriff’s departments.

[7] 530 U.S. 428 (2000).

[8] In the wake of Miranda, two years later, Congress enacted 18 U.S.C. § 3501 (1968), which made the admissibility of a custodial statement, or “confession,” turn solely on whether it was voluntarily given by the suspect.  This went against Miranda’s holding that an arrestee must be warned prior to questioning of his Fifth Amendment rights.

[9] Id. at 441 (Rehnquist, C.J.).

[10] Id. at 440 n.5.

[11] During oral argument, Justice Barrett observed that Dickerson “didn’t ever use the word ‘constitutional’ right.”  See Rubin, supra note 2.  The defendant’s right to silence as a constitutional matter was established by Griffin v. California, 380 U.S. 609 (1965), which held that neither the trial court nor the prosecutor may comment on the defendant’s failure to testify before a jury.  Id. at 615.  Chief Justice Rehnquist’s view of Miranda as a constitutional “rule” (not a “right”) was later endorsed by a plurality in Chavez v. Martinez. 538 U.S. 760, 763 (2003), which ruled against respondent because of qualified immunity.  Chavez, to be clear, is non-binding, and the federal circuits are split in whether they regard Miranda warnings as a constitutional right for purposes of § 1983 liability.  See Petition for Writ of Certiorari, supra note 4, at *2.

[12] Adam Liptak, Supreme Court Debates Whether Miranda Warnings Are a Constitutional Right, N.Y. Times (Apr. 20, 2022), https://www.nytimes.com/2022/04/20/us/supreme-court-miranda-rights.html?searchResultPosition=1.

[13] Petition for Writ of Certiorari, supra note 4, at *4.

[14] According to Deputy Vega, “Tekoh quickly confessed to the assault, and later stood trial, where his confession was admitted into evidence.  A jury nevertheless acquitted Tekoh.” Id. at *4–5.  By contrast, Mr. Tekoh claims that: “Petitioner Vega investigated this allegation at the hospital.  He interrogated Respondent in a small windowless, soundproof room . . . [A]fter about an hour in the room with the door shut, Respondent wrote a vague, apologetic confession . . . While Petitioner insists that the statements Respondent gave were voluntary and immediate, Respondent testified to an interrogation replete with profanities and threats to have Respondent and his family deported, and refusing to allow Respondent to speak to a lawyer or one of his supervisors.”  Brief in Opposition, Vega v. Tekoh, 142 S. Ct. 858 (2022) (No. 21-499), 2021 WL 5864537, at *3.

[15] David G. Savage, Los Angeles Police Dispute at Center of Supreme Court Case on Miranda Warnings, L.A. Times (Apr. 20, 2022), https://www.latimes.com/politics/story/2022-04-20/supreme-court-ready-to-shield-police-from-being-sued-for-ignoring-miranda-warnings-hold.

[16] See Tekoh v. Cty. of Los Angeles, 985 F.3d 713, 717 (9th Cir. 2021) (noting that the District of Central California failed to instruct the jury “that it should find in [plaintiff’s] favor on the Fifth Amendment claim if it determined that Deputy Vega obtained statements from him in violation of Miranda that were used in the criminal case against him.”).

[17] Id. at 715.

[18] Id. at 726.

[19] 997 F.3d 1260 (9th Cir. 2021).

[20] Chief Justice Roberts, who once clerked for the Dickerson Court, noted that, “[former Chief Justice Rehnquist] was somebody careful with his words, he didn’t say Miranda is in the Constitution.  He talked about constitutional underpinnings, constitutional basis.”  Rubin, supra note 2.  However, he also asked petitioner’s attorney, Mr. Martinez, “So why isn’t that right one secured by the Constitution?”  Id.  By contrast, Justice Kagan said that Dickerson “understood that Miranda had come to mean something extremely important in the way people understood the law and the way people understood the Constitution” and that undermining Miranda could hurt the Court’s legitimacy.  Id.

[21] LastWeekTonight, Police Interrogations: Last Week Tonight with John Oliver (HBO), YouTube (Apr. 18. 2022), https://www.youtube.com/watch?v=obCNQ0xksZ4.

[22] In dissent, the late Justice Scalia dared the Dickerson Court to take the opinion “out of the realm of power-judging and into the mainstream of legal reasoning” by simply declaring that Miranda was in fact a federal constitutional right recognized by the Supreme Court.  Dickerson, 530 U.S. at 445–46 (Scalia, J., dissenting).

 

12 Wake Forest L. Rev. Online 46

Joshua S. Ha*

“The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.”[1]  That is how Chief Justice Marshall described the rule of lenity in United States v. Wiltberger.[2]  The doctrine is rooted in seventeenth-century England, where it arose to counteract the increasingly widespread imposition of the death penalty for felonies.[3]  The rule traveled to America, and today, courts typically justify the rule on three grounds: (1) fair notice to the defendant, (2) separation of powers, and (3) a presumption in favor of liberty.[4]

Today’s rule of lenity is far removed from its English origin.  Though it remains a tool of statutory construction, it is now employed “at the end of the process of construing what Congress has expressed,”[5] making it difficult to conceptualize as a principle of strict construction.  And even if its utility—as a tiebreaker reserved for instances of “grievous ambiguity”[6]—is extremely limited, it is nonetheless difficult to apply.

This Article argues that we can avoid that difficulty by excluding certain criminal statutes from the rule’s grasp altogether.  In particular, this Article claims that courts erred by applying the rule of lenity to the First Step Act—a statute governing whether already-sentenced criminals are eligible for resentencing.[7]  Part I discusses the history of the rule of lenity in England and argues that the rule strictly construed criminal statutes to frustrate—not discern—legislative intent.  Part II considers the rule of lenity as it is applied today and argues that its placement at the end of the interpretive process is incompatible with the rule as conceived in England.  Part III concludes that there are certain criminal statutes to which no rationale for the rule of lenity applies and that the rule of lenity should therefore not be used when interpreting such statutes. 

I. A History of Lenity

Courts and scholars generally accept that the rule of lenity arose as a response to the severity of English penal law—and specifically, laws carrying the death penalty.[8]  Such laws were commonplace.  Sir William Blackstone noted that it was “difficult to justify the frequency of capital punishment to be found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures.”[9]  Although occasionally the relative mercy of “transportation”—i.e., an arrangement by which the criminal would voluntarily leave the country[10]—might excuse a robber from execution, the death penalty remained pervasive.[11]

The rule of lenity took form against this backdrop.  It is received wisdom that the rule of lenity can be traced to legal developments surrounding the benefit of clergy.[12]  That privilege provided for the “[e]xemption of the persons of clergymen from criminal process before the secular judge” and could be claimed either at the time of arraignment or after conviction.[13]  The benefit of the clergy was once limited to those who had the “habitum et tonsuram clericalem”—that is, the “clerical habit and tonsure.”[14]  But eventually, the benefit was extended to “every one that could read,” though he be “neither initiated in holy orders, nor trimmed with the clerical tonsure.”[15]  Over time, the benefit became widespread, as “learning, by means of the invention of printing, and other concurrent causes, began to be more generally disseminated than formerly.”[16]

Perhaps because it was never meant to extend so far, or perhaps as a favor to clergy dismayed at the loss of this once-exclusive privilege,[17] the benefit of clergy was gradually limited by statute.  In the late fifteenth century, a statute was enacted that permitted a layman to use the benefit only once, whereupon he would be branded.[18]  And it appears that one of the earlier instances of withdrawing the benefit of clergy from an offense altogether was in 1496, when a statute was passed providing that “if any layperson hereafter . . . murder their lord, master, or sovereign immediate, that they hereafter be not admitted to their clergy.”[19]  Instead, that person would “be put in execution as though he were no clerk.”[20]  That practice of removing the benefit of clergy from specific offenses continued, until, at the time of Blackstone, 160 felonies were statutorily exempted from the benefit of clergy.[21]  For those crimes from which the benefit of clergy was withdrawn, the death penalty was no longer easily avoidable.[22]

The classic narrative is that the rule of strictly construing penal statutes was the courts’ response to the widespread elimination of the benefit of clergy.[23]  Whatever the exact mechanics of the rule’s genesis, it was “firmly established” by the mid-seventeenth century.[24]  Thus, while the benefit of clergy itself was completely abolished in 1827,[25] the rule of lenity had already taken on a life of its own.  But while the rule of lenity, and even its impetus, may be straightforward, its exact justification remained unclear.  Was it a good-faith attempt of courts to apply the intent of the legislature, coupled with a disbelief that the legislature could truly desire its strict laws to be liberally applied?  Or was it an instance of judicial obstruction, of courts hampering—by technicality—a legislature that meant what it said?

History tends to support the latter.  The debate is nicely framed by comparing the two most-cited sources as to lenity’s origins: Sir Peter Benson Maxwell and Professor Livingston Hall.[26]  Maxwell was among the first to explicitly link the rule of lenity to the benefit of clergy, and he described the rule of lenity as one faithful to legislative intent.[27]  According to Maxwell, the rule was based on the “reasonable expectation that, when the Legislature intends so grave a matter as the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges,” it “will express [its intention] in terms reasonably plain and explicit.”[28]  Thus, in Maxwell’s view, the rule of lenity is also constrained by the legislature’s intent.  Maxwell’s lenity did not allow “the imposition of a restricted meaning on the words, for the purpose of withdrawing from the operation of the statute a case which falls both within its scope and the fair sense of its language,” because that “would be to defeat, not to promote, the object of the statute.”[29]  In short, “no construction is admissible which would sanction an evasion of an Act.”[30]

Hall thought the rule of lenity served a different purpose.  He described the rule as an offspring of a “conflict . . . between the legislature on the one hand and courts, juries, and even prosecutors on the other.”[31]  The legislature, either from “inertia” or “pressure from property owners,” pursued “a policy of deterrence through severity,” while the courts “tempered this severity with strict construction carried to its most absurd limits.”[32]  In other words, the courts were not using the rule of lenity to determine the legislature’s intent, but rather in direct opposition to whatever policy the legislature was pursuing.  Simply, it was a “veritable conspiracy for administrative nullification.”[33]

Hall’s account of the rule of lenity originating as a tool to counteract the legislature’s purpose appears to be the prevailing one.[34]  It also seems more historically grounded than Maxwell’s theory of the rule of lenity as a means of effectuating the legislature’s purpose.  To start, there is little evidence that the legislature ever intended any of its statutes to be narrowed to oblivion.  English legal reformer Samuel Romilly observed that “[t]here probably never was a law made in this country which the legislature that passed it did not intend should be strictly enforced.”[35]  For support, Romilly noted that even a strange law “which made it a capital offence for any person above the age of fourteen to be found associating for a month with persons calling themselves Egyptians” was vigilantly enforced “down to the reign of King Charles the first.”[36]  According to Romilly, who was writing in 1810, it was “only in modern times that this relaxation of the law has taken place.”[37]

The handful of vignettes from that era also seem to support that the rule of lenity produced results contrary to the legislature’s intent—and, more importantly, that courts were not concerned by that possibility.[38]  One example is the courts’ construction of a 1740 statute on cattle-stealing.[39]  That statute provided that the stealing of “sheep, or other cattle” was a “felony without benefit of clergy.”[40]  As Blackstone tells it, the courts considered the words “or other cattle” to be “much too loose to create a capital offense,” and so “the act was held to extend to nothing but mere sheep.”[41]  It is hard to find in such an interpretation an attempt to give effect to the legislature’s intent.  Perhaps—depending on what else “cattle” might have entailed back then—the phrase “other cattle” might have been narrowed by the explicit reference to “sheep.”  But to render “other cattle” surplusage runs afoul of the spirit of another rule of construction: the command to read a statute in such a way that the “whole may (if possible) stand.”[42]  And sure enough, the legislature passed a law the next year “extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.”[43]  It appears that the phrase “other cattle” was written, and meant, to be expansive.

A more ambivalent example that was closer in time to the rule of lenity’s inception is the judicial treatment of the horse-stealing felony.[44]  During the reign of Henry VIII, a 1545 statute withdrew the benefit of clergy from “the stealing of any Horse Geldinge Mare Foole or Filley.”[45]  After Edward VI succeeded to the throne, a new statute was enacted in 1547 that withdrew benefit of clergy from a long list of felonies,[46] including the “felonious stealing of horses geldings or mares.”[47]  It also purported to abrogate the 1545 statute, providing that “in all other cases of felony, other than such as be before mentioned,” all persons “shall have and enjoy the privilege and benefit of his or their clergy . . . in like manner and form as he or they might or should have done before the Reign of the said late King Henry the Eighth.”[48]  Because the 1545 statute referred to “any Horse” while the 1547 statute referred to horses in plural, Lord Matthew Hale noted that the 1547 statute “made some doubt, whether it were not intended to enlarge clergy, where only one horse was stolen.”[49]

The courts responded by interpreting the 1547 statute to permit the benefit of clergy for stealing a single horse, and the story goes that this is yet another instance of the courts thwarting the legislature’s intent.[50]  But that narrative is significantly weaker here.  For one, the courts had a textual hook in relying on the plural form of “horses,” “geldings,” and “mares.”  And unlike the interpretation of the phrase “other cattle,” here the courts did give effect to the words of the statute (indeed, every letter).[51]  Ultimately, though, it appears that the courts once again failed to effectuate the legislature’s intent.  The next year, the legislature clarified that “all and singuler p[er]son and p[er]sons felonyously takinge or stealinge any horse geldynge or mare shall not be admytted to have or enjoye the p[ri]viledge or benefyte of his or their Clergy.”[52]

Overall, then, in the absence of a systematic study, it seems that the early uses of the rule of lenity largely led to results counter to the legislature’s intent.  Thus, we may consider Maxwell’s conception of lenity as a tool for discerning the legislature’s “true” (as opposed to expressed) intent as a post hoc legitimization of the rule.  Such a lens explains why the rule of lenity has survived the abandonment of previous draconian laws and why the rule now applies to laws that do not impose capital punishment.  An actual wresting of authority from the legislature to enact criminal punishments as it sees fit can only be justified—if at all—by a penalty as drastic as death.  But once the rule was conceived as fitting within the usual judicial system, where legislatures enact and judges faithfully interpret those enactments, it could apply, as Maxwell suggested, regardless of “whether the proceeding prescribed for the enforcement of the penal law be criminal or civil.”[53]

II. Our Rule of Lenity

The rule of lenity thus originated in England.[54]  When Chief Justice Marshall described the rule in Wiltberger as being “not much less old than construction itself,”[55] he could only have been incorporating a rule older than the Republic.  Wiltberger was the first case in which the rule of lenity was explicitly applied by the United States Supreme Court.[56]  It concerned the Crimes Act of 1790.[57]  That Act provided for a crime punishable in federal court “[i]f any person or persons, shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder.”[58]  In another section, the Act provided for punishment “[i]f any seaman, or other person, shall commit manslaughter on the high seas.”[59]  Wiltberger involved manslaughter on a river.[60]

Because the manslaughter provision only referred to the “high seas,” the Court held that “the offence charged in this indictment is not cognizable in the Courts of the United States.”[61]  That holding was reached because “Congress has not . . . inserted the limitation of place inadvertently; and the distinction which the legislature has taken, must of course be respected by the Court.”[62]  Thus, while the language of the rule of lenity appears throughout the opinion, this case seems much more akin to the “horses” example than the “other cattle” one: a strange and arguably wrong conclusion, but a conclusion that at least has a textual basis.[63]  It is fitting that it is unclear how much work this most nebulous doctrine did in the Supreme Court’s first case applying it by name.

Today, our rule of lenity is oft-summarized as “the rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”[64]  And whether a statute is ambiguous is determined by using the other methods of statutory interpretation.[65]  According to the Supreme Court, “the rule applies if at the end of the process of construing what Congress has expressed, there is a grievous ambiguity or uncertainty in the statute.”[66]  It is “reserved for cases where, after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute.”[67]  The rule is not one of general strict construction of penal statutes—where “[t]he statute is clear enough,” we do not “rely on the rule of lenity” at all.[68]  The rule is, in effect, a tiebreaker.

At the same time, the rule of lenity remains a tool of statutory construction—it is just the last one applied.[69]  That is why, where a statute is given a certain meaning on account of lenity, it retains that meaning even in a noncriminal context.[70]  In Leocal v. Ashcroft,[71] the Supreme Court held in the immigration context that a DUI was not a “crime of violence” under 18 U.S.C. § 16.[72]  Under the Immigration and Naturalization Act, if a DUI were a “crime of violence,” then petitioner Josue Leocal would be deportable.[73]  In reaching its conclusion, the Court noted that “[e]ven if § 16 lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner’s favor.”[74]  Even though this case arose in the immigration context, “[b]ecause we must interpret [§ 16] consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”[75] 

That leads to an interesting conundrum where the statute is ambiguous as to a particular criminal defendant but resolving the ambiguity in the defendant’s favor may not benefit criminal defendants generally.  The rule would not fit its name if, to avoid a particular result for one criminal defendant, the rule ended up extending to impose penalties on more defendants overall.  Some courts of appeals have recognized that the rule of lenity must be applied with an eye toward defendants in general.[76]  For instance, in United States v. Olvera-Cervantes, the Ninth Circuit considered the application of U.S.S.G. § 2L1.2, which penalized illegal reentry differently if the previous deportation followed a felony conviction.[77]  The question before the court was “whether the district court should look to the maximum penalty authorized by the state statute under which the defendant was convicted or whether it should look to the maximum penalty authorized by the analogous federal statute.”[78]  The more favorable outcome to Olvera-Cervantes in particular would have been to look to the federal statute, but the court found that “the rule of lenity . . . is of little use here because we do not know whether the defendant’s interpretation of section 2L1.2 would end up benefitting defendants in general.”[79]  Indeed, it is hard to conceive how a court would be able to measure either interpretation’s benefit to defendants, given how federal and state statutes are mutable.

The most straightforward scenario, then, for applying the rule of lenity is when the criminal statute defines conduct and one of the dueling interpretations is narrower than the other.  Such a narrow interpretation, completely included within the broader one, will always be beneficial to criminal defendants overall and would not require any hypothesizing by the court.  This conception of the rule of lenity—as choosing the narrow over the broad interpretation—resembles strict construction.

But it seems well settled that the rule of lenity comes at the end of the analysis.[80]  Only at the end, if two interpretations are in “equipoise,”[81] does the court apply the rule of lenity and therefore choose the narrower construction.[82] Given how few times two interpretations will ever be in true “equipoise,” only rarely will the narrower construction be preferred over the broader one merely by reason of narrowness.  That is a sharp contrast to the rule of lenity described in the early English treatises, which treated the rule of strictly construing penal statutes as a general one.[83]  In that sense, according to our rule of lenity, penal statutes will rarely be strictly construed.

In sum, the rule of strict construction of penal statutes has survived in American law insofar as the rule of lenity embodies a built-in bias (however slight) for the narrower interpretation.  But by giving that bias effect only at the very end of the interpretive process—and only in the limited scenario of “equipoise”—our rule of lenity is significantly less applicable than the historic rule.

III.  Lenity’s Limits: A Case Study on the First Step Act

Given the foregoing, applying the rule of lenity is difficult.  As a prerequisite to even consider its use in a given case, one must first apply all other tools of statutory construction.[84]  Even then, it remains a mystery what counts as “equipoise.” It is therefore unsurprising that in United States v. Hansen,[85] then-Judge Scalia, referring to the rule of lenity, remarked, “It is, quite frankly, difficult to assess the scope of this accepted principle.”[86]  Pessimistic as it may sound, these application problems may prove to be intractable.  Concepts such as interpretive “equipoise” and narrowing constructions have little capacity to be clarified for easy application.[87]

Looking to the rationales given over time for the rule of lenity might be a decent way to boil down those concepts into something more concrete.  Below, this Article considers the three usual rationales provided for the rule of lenity.  This Article concludes that most of them are in tension with the origin of the rule and that none tells us when a statute is ambiguous enough that we must make an assumption in favor of the defendant.  That leads to the final conclusion of this Article: perhaps the rationales for the rule of lenity do not provide clear rules—but when none of the rationales are applicable, the rule of lenity itself should not apply to the criminal statute.

A. Lenity’s Rationales

Courts and commentators generally give three rationales for the rule of lenity.  The first is fair notice; as Justice Holmes observed,

 

[a]lthough it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.[88]  

 

The second is the separation of powers:  “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.”[89]  And third, “the rule of lenity serves our nation’s strong preference for liberty.”[90]

The first two rationales are inconsistent with the rule of lenity’s origins.  To start, the fair notice and separation of powers rationales seem to be post hoc rationalizations.  After all, neither logically should have been triggered by the withdrawal of the benefit of clergy.  If the scope of conduct criminalized by a seventeenth-century felony was so uncertain as to raise fair notice concerns, that uncertainty would have existed before the legislature decided to make the felony unavoidably punishable by death.  Indeed, the vagueness doctrine—another doctrine animated by fair notice—applies beyond the penal context.[91]  A similar critique applies to the separation of powers rationale.  The legislature is the only branch empowered to enact any statute, not just criminal ones, and not just criminal ones that may impose the death penalty.[92]  Furthermore, the separation of powers rationale is a particularly odd fit given that the rule of lenity originated to defeat the legislature’s intent.

The preference for liberty, on the other hand, does match the origin of the rule of lenity, at least superficially.  If the death penalty is the most severe deprivation of liberty a state can effect, it makes sense that the rule of lenity only appeared once the benefit of clergy began to be taken away.  Underlying this last rationale is a normative assumption—that the criminal penalty is a severe sanction, and that the state must therefore speak clearly if it wants to deprive a citizen of liberty.[93]  We might question whether those assumptions hold in the context of many cases where the rule of lenity is applicable; if a defendant had committed some sort of morally culpable act (even if that act is not clearly cognized by the criminal statute), a reasonable person might consider it unfair to add another thumb to the scale in the defendant’s favor.[94]  In any event, this rationale is also a relatively good fit with the practice of applying lenity.  As Maxwell described the rule in England, “[t]he degree of strictness applied to the construction of a penal statute depends in great measure on the severity of the statute.”[95]  A few states––and federal courts now and then––seem to do the same when they differentiate between felony statutes and misdemeanor statutes.[96]

But the liberty rationale too is imperfect.  If the liberty rationale is meant to require legislatures to speak clearly, why does lenity only apply when there is grievous ambiguity, as opposed to just ambiguity?[97]  More importantly, a sliding scale of lenity adds yet another variable to an already-unclear equation.  How much stricter should a felony statute be interpreted?  What about a statute that provides a ten-year maximum sentence versus a fifteen-year maximum sentence?  The liberty rationale’s capaciousness makes it a decent justification for the rule.  But it is also a poor guiding principle for the rule’s application.

One might ask, why should we care whether the rationales for the rule of lenity—all of which are widely cited[98]—are consistent with the rule’s origin?  After all, that a rule sprung up in response to a particular confluence of events does not necessarily mean that we should keep the rule bound to that scenario.  Be that as it may, Wiltberger itself described the rule of lenity as not just merely old, but “perhaps not much less old than construction itself,”[99] and courts have consistently picked up on and repeated that phrase.[100]  It would be odd to abandon any attempt to keep lenity moored to its past, considering the courts’ constant reminders of its ancient roots.

In any event, at the very least, it seems that no single rationale can claim supremacy over the other.  And even if one could, each rationale alone does not shed much light on how to apply the rule to a particular statute.  At what point is a statute ambiguous enough to raise fair notice concerns?  Our other doctrine that responds to the need for fair notice relies on such concepts as what a “person of ordinary intelligence” could “reasonably understand”[101]—hardly a hopeful ground upon which to find a clear rule.  As for the separation of powers rationale, scholars have noted that courts are accepted to have, in certain criminal matters, vast discretion.[102]  Thus, if violating the separation-of-powers principle by giving too much discretion to courts in criminal matters is merely a matter of degree, that rationale is also unlikely to lead to any clear rule.

None of this is to suggest that a lack of a clear rule means that lenity should be discarded altogether.  Law does not always give clear rules, and it might be especially odd to require clarity from a doctrine designed to enter the legal analysis in response to ambiguity.  Just because a doctrine cannot be reduced into bright-line rules does not make it invalid—far from it.  Rather, this Article concludes only that, insofar as this Article attempts to find a clear way to apply lenity in at least some cases, there probably will be none based on balancing various of the three rationales for the rule.

B. A Proposed Limit on Lenity

This Article argues that there may be some categories of penal laws to which none of the rationales of the rule of lenity apply, and that lenity should therefore be inapplicable to those statutes.  The rule of lenity has generally been described in terms referring to “penal laws,” without any suggestion that some penal laws might not be proper subjects of the rule.[103]  But considering the rule of lenity’s rationales in order to define a class of statutes to which the rule does not apply is not unheard of.  Emlin McClain, former Chief Justice of the Iowa Supreme Court, in a late-nineteenth century treatise of American criminal law, noted the view that, because the rule “was adopted at the common law in favor of life, or the liberty of the citizen,” it “has never been observed in the construction of statutes enacted for the punishment of mere misdemeanors.”[104]  For that reason, McClain described several categories of criminal law to which the rule was not applied, including “statutes for the prevention of fraud and suppression of public wrong” and “statute[s] relating to procedure.”[105]

With that in mind, one potential limit on the scope of lenity starts with the observation that every rationale for lenity is, in effect, a prohibition on what the legislature can do.  The legislature may not criminalize conduct without providing fair notice to potential defendants.[106]  The legislature may not pass such an open-ended statute that it effectively delegates lawmaking to the courts.[107]  The legislature may not infringe upon a person’s liberty without clearly stating its intent to do so.[108]  Put another way, there are limits to how a legislature may enact a statute used to the detriment of the defendant.  If those are fair characterizations of the rationales underlying the rule of lenity, then the rule should not be applied in instances of legislative grace.

One recent example of so-called legislative grace is the First Step Act of 2018.[109]  Before 2010, distributing 5 and 50 grams of crack triggered mandatory minimum sentences of five and ten years, respectively.[110]  The Fair Sentencing Act of 2010 raised those threshold amounts to 28 and 280 grams.[111]  Eight years later, the First Step Act made already-sentenced criminals potentially[112] eligible for the lower penalties of the Fair Sentencing Act, even though they had committed their crimes before the Fair Sentencing Act was passed.[113]  Eligibility for relief under the First Step Act depended on whether the criminal had committed a “covered offense.”[114]  And a “covered offense” was defined in the First Step Act as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.”[115]

Predictably, the definition of “covered offense” led to questions, often raised by criminals seeking resentencing.[116]  One of the most significant questions was whether the term referred to the actual conduct that the criminal committed or merely the statutory elements of the offense.[117]  That distinction matters for someone who distributed, say, a kilogram of crack.  If actual conduct mattered, then he would not be eligible for resentencing, because someone who sold a kilogram of crack today would be subject to the same penalties as someone who did so before 2010.  On the other hand, if only the statutory elements mattered, then the criminal would be eligible for resentencing because the penalty for selling fifty grams of crack has been modified.

From the beginning, most district courts adopted the categorical approach.[118]  For many of these courts, whether actual conduct mattered depended on what the phrase “statutory penalties for which were modified” was in reference to and what the term “violation” meant.[119]  And time and time again, those courts would invoke the rule of lenity to say that whether a covered offense was committed did not depend on the actual underlying conduct.[120]  Even district courts that reached the conclusion that eligibility for resentencing depended on actual offense conduct dismissed the use of lenity because the statute was unambiguous,[121] not for some other reason.

This Article argues that the rule of lenity should never have applied in construing eligibility under the First Step Act—even if there were a “grievous” ambiguity—because none of the rationales for the rule apply here.  To begin with, the fair notice concern is irrelevant in this context.  Whatever applicability that doctrine has in the sentencing context in general, it has no relevance when discussing a criminal statute that alters the penalties for a crime after the sentence has already been handed down.  To say that fair notice concerns are implicated here would be to say that the criminal should be given the benefit of the doubt in case he was misled by the ambiguous wording of a statute that had not yet been passed.

Neither does it make sense to apply the rule in the name of separation of powers.  In fact, that rationale would suggest that the court should resolve ambiguities against the criminal.  Sentence modifications “are not constitutionally compelled,”[122] and courts themselves “lack[] the inherent authority to modify a term of imprisonment.”[123]  If it is in Congress’s domain, then, to permit resentencing, the separation of powers principle would have courts decline—not expand—the invitation to find the ability to do so unless Congress spoke clearly.

Even the vague preference for liberty rationale is especially weak here because the legislature did speak clearly under the old sentencing regime.  As the Eighth Circuit noted in analyzing a different sentence modification statute, “[n]o new deprivation of liberty can be visited upon [a prisoner] by a proceeding that, at worst, leaves his term of imprisonment unchanged,” when “[h]is liberty is already deprived by virtue of a sentencing which gave him all the process the Constitution required.”[124]

Looking forward, the same analysis may apply—but with less weight—when the statute or rule providing a potential resentencing was in place before the criminal’s initial sentence.  For instance, in United States v. Puentes,[125] the Eleventh Circuit considered whether a district court could reduce a defendant’s obligation to pay restitution under the Mandatory Victim’s Restitution Act (“MVRA”) through Federal Rule of Criminal Procedure 35(b), which provides that “the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.”[126]  The MVRA was enacted after Rule 35(b), and both were in place well before Puentes committed his crimes.[127]  Puentes argued that “[the court is] bound to apply the rule of lenity if [it] find[s] any ambiguity in the [MVRA], Rule 35(b), or the interplay between the two.”[128]  The court assumed for the sake of argument that the rule of lenity could apply to Rule 35(b) but decided that there was no grievous ambiguity that would support applying lenity there anyway.[129]

Putting aside whether lenity should apply to procedural provisions at all, it is a harder question whether lenity should apply here compared to the First Step Act example analyzed above.  Unlike a defendant under the First Step Act, Puentes in theory could have depended on the possibility of a Rule 35(b) sentence reduction at the time of his conduct.  It is true that the fair notice concern is already weak in the sentencing context and the resentencing context is even a step further removed,[130] but at least it would be temporally possible for a defendant to be misled by the wording of Rule 35(b).  It also might make some sense under the framework mentioned above that views lenity as a constraint upon Congress: if Congress wants to deny an avenue for relief available to potential criminals, it must speak clearly.  On the other hand, Rule 35(b) remains an exception to the usual inability to change an already-imposed sentence.  In recognition of that general rule, courts often refer to 18 U.S.C. § 3582(c)(2)—which authorizes sentence-modification proceedings[131]—as an “act of lenity.”[132]  If we consider Rule 35(b) itself to be a similar “act of lenity,” to apply the rule of lenity to it almost seems like double-counting.

So, it may not be as easy as saying all resentencing statutes should be excluded from the rule of lenity.  But at the very least, an approach of narrowing which criminal laws are subject to our rule would be theoretically grounded and simple to administer.  Unlike the usual approach, where courts always must consider “how much ambiguousness constitutes an ambiguity,”[133] once a particular statute is found to be outside lenity’s ambit, a court will no longer need to engage in that last step of the interpretive process at all.

Conclusion

The rule of lenity has largely been unmoored from its English origins.  And though it is an old doctrine that has rarely been questioned, its inconsistent application has prompted even Justice Scalia to suggest that “[i]f [the rule of lenity] is no longer the presupposition of our law, the Court should say so, and reduce the rule of lenity to an historical curiosity.”[134]  Even if a court seeking to apply the rule were to look to what rationales have been used to justify the modern American version of lenity, it would be confronted with three—all distinct, and none perfect.

It seems, then, that the easiest way to clarify the rule of lenity’s application is to start with considering its scope.  Although the rule is taken to mean that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,”[135] this Article argues that the rule’s reference to “criminal statutes” should not be taken hyperliterally.  Especially now that the term “criminal statutes” may fairly be read to mean any statute that touches upon criminal law, the rule of lenity—even in its expanded form—does not reach every such statute.  Where none of the rationales for the rule of lenity apply, that old doctrine should have no role to play in interpreting the statute, atmospheric or otherwise.

      *.   Law clerk to Judge Steven J. Menashi, U.S. Court of Appeals for the Second Circuit, 2021–22, and to Judge Britt C. Grant, U.S. Court of Appeals for the Eleventh Circuit, 2020–21.  J.D., Harvard Law School, 2020; M.A., State University of New York at Stony Brook, 2016; B.S., State University of New York at Stony Brook, 2015.  Thanks to Aaron Gyde, Joshua Hoyt, Aaron Hsu, and DJ Sandoval for helpful comments and advice.  This Article represents the views of the author alone.

      [1].   18 U.S. (5 Wheat.) 76, 95 (1820).

      [2].   Id.

      [3].   David S. Romantz, Reconstructing the Rule of Lenity, 40 Cardozo L. Rev. 523, 526 (2018).

      [4].   Id. at 524–25.

      [5].   Callanan v. United States, 364 U.S. 587, 596 (1961).

      [6].   Chapman v. United States, 500 U.S. 453, 463 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)).

      [7].   First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194; see also Nathan James, Cong. Rsch. Serv., R45558, The First Step Act of 2018: An Overview (Mar. 4 ,2019).

      [8].   Romantz, supra note 3, at 526.

      [9].   4 William Blackstone, Commentaries on the Laws of England 18 (4th ed. 1770).

     [10].   Frederick Howard Wines, Punishment and Reformation: A Study of the Penitentiary System 106 (1910) (“[M]ultitudes of prisoners under sentence of death were given the alternative, of which they hastened to take advantage, of voluntarily leaving the realm, if pardoned.  Herein was the germ of English transportation.”).

     [11].   4 Blackstone, supra note 9, at 18 (“[I]n England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers.”).  In fact, this differing punishment for crimes earned commendation from Blackstone, who remarked that “[w]here men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt.”  Id.

     [12].   Romantz, supra note 3, at 526.

     [13].   4 Blackstone, supra note 9, at 358.  As a historical matter, then, the benefit of clergy was usually claimed after conviction.  As Blackstone observed, “it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also it is more advantageous to the prisoner himself, who may possibly be acquitted, and so need not the benefit of his clergy at all.”  Id. at 359–60; see also McRaney v. N. Am. Mission Bd. of S. Baptist Convention, Inc., 980 F.3d 1066, 1076 (5th Cir. 2020) (Oldham, J., dissenting from the denial of rehearing en banc).

     [14].   4 J. W. Jones, A Translation of All the Greek, Latin, Italian, and French Quotations Which Occur in Blackstone’s Commentaries on the Laws of England 245 (1823).  The clerical tonsure was a hairstyle. See 4 Blackstone, supra note 9, at 360.

     [15].   4 Blackstone, supra note 9, at 360.  It appears that this literacy test was a judicial misinterpretation of the legislature’s extension of the benefit to “secular” clerks.  See Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. Tol. L. Rev. 511, 515 n.22 (2002) (“[That] statute was intended to clarify that benefit of clergy would be afforded to ‘inferior Orders’ of the clergy, as well as bishops, priests, and deacons, but . . . the intent was not to extend clergy to lay persons.” (quoting 2 Sir William Hawkins, A Treatise of the Pleas of the Crown 338 (2d ed. 1724))).  That misinterpretation was arguably deliberate.  See Romantz, supra note 3, at 526 (“As Parliament and the king continued to proliferate capital felonies in the coming centuries, the courts responded by expanding the benefit of the clergy rule to include any citizen who could read.”).

     [16].   4 Blackstone, supra note 9, at 360.

     [17].   William L. Rushton, Shakespeare: A Lawyer 16 (1858) (“[A]s many laymen as clergymen enjoyed this privilege, which excited the jealousy of the clergy, in whose favour, therefore, a further distinction was made . . . .”).

     [18].   That statute was titled “Concerning the allowance of benefit of clergy,” and it provided that “every person, not being within orders, which once hath been admitted to the benefit of his clergy, eftsoons arraigned of any such offence, be not admitted to have the benefit or privilege of his Clergy.”  4 Hen. 7 c. 13.

     [19].   12 Hen. 7 c. 7; see Spector, supra note 15, at 515–16 (“At first, benefit of clergy was stripped from murder and certain particularly nasty cases of robbery, but by the middle of the sixteenth century benefit of clergy had been withdrawn from the most trivial of felonies, including ‘stealing horses,’ pickpocketing, and ‘burning a dwelling or barn having grain therein.’” (footnotes omitted) (citing 12 Hen. 7 c. 7)).

     [20].   12 Hen. 7 c. 7.

     [21].   4 Blackstone, supra note 9, at 18 (“It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death.”).  To be sure, “a large number of capital offenses on the statute book is no test for severity,” but it remains the case that “by the nineteenth century, the government had so limited the [benefit of clergy] that it had fallen into disuse.”  Newman F. Baker, Benefit of Clergy—A Legal Anomaly, 15 Ky. L.J. 85, 111 (1927).

     [22].   Spector, supra note 15, at 517.

     [23].   Romantz, supra note 3, at 527.

     [24].   Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 750 n.13 (1935) (“By the time Hale wrote (he died in 1676), the doctrine of strict construction was firmly established.”); see also 1 William Blackstone, Commentaries on the Laws of England 88 (4th ed. 1765) (“Penal statutes must be construed strictly.”); 2 Sir Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown 335 (1736) (“That where any statute . . . hath ousted clergy in any of those felonies, it is only so far ousted, and only in such cases and as to such persons, as are expressly comprised within such statutes, for in favorem vitae & privilegii clericalis such statutes are construed literally and strictly.”).

     [25].   Baker, supra note 21, at 111.

     [26].   Spector, supra note 15, at 514 n.16 (“Sir Peter Benson Maxwell and [Livingston] Hall were the first to trace the rule of lenity back to the benefit of clergy cases.  Their accounts have been accepted and recited by modern rule of lenity scholars.” (citations omitted)).

     [27].   Id.; Peter Benson Maxwell, On the Interpretation of Statutes 237 (1875).

     [28].   Maxwell, supra note 27, at 237.

     [29].   Id. at 238.

     [30].   Id.

     [31].   Hall, supra note 24, at 751.

     [32].   Id.  Perhaps this state of affairs—presumably not all too displeasing to the legislature, which could reap the benefits of passing such statutes without any of the political downsides—could eventually lead to a “sort of prescriptive validity.”  See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Rsrv. L. Rev. 581, 583 (1989).  After the charade has gone on long enough, “the legislature presumably has [it] in mind when it chooses its language.”  Id.  But that does not clarify the justification for the rule of lenity at its inception.

     [33].   Hall, supra note 24, at 751.

     [34].   See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 198 (1985) (“Faced with a vast and irrational proliferation of capital offenses, judges invented strict construction to stem the march to the gallows.”); Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 897 (2004) (“The rule of lenity has its oldest origins in the efforts of common law courts in the seventeenth and eighteenth centuries to limit the brutality of English criminal law.”); Romantz, supra note 3, at 527 n.12 (“The rule of lenity first developed in England with the decided goal of frustrating the intent of the legislature.  English courts resolved to chart a more humane path despite the legislature’s facility to enact capital crimes.”); Lawrence M. Solan, Law, Language, and Lenity, 40 Wm. & Mary L. Rev. 57, 87 (1998) (“The courts, doing what they could to frustrate the legislative will, developed the principle that penal statutes were to be construed strictly.”).  In fact, as mentioned above, the legislature’s abrogation of the benefit of clergy might have itself been a move in this tug-of-war, a response to the courts’ improper extension of the benefit to all literate citizens in the first place.  See Romantz, supra note 3, at 526–27 (“Keenly aware that the courts were frustrating its legislative prerogative to kill the nation’s criminals, Parliament responded by enacting more and more capital felonies, while excluding increasing numbers of felonies from the benefit of the clergy.”). 

     [35].   Sir Samuel Romilly, Observations on the Criminal Law of England as it Relates to Capital Punishments, and on the Mode in Which it is Administered 5 (1811).

     [36].   Id.

     [37].   Id.; see also id. at 6 (“In the long and sanguinary reign of Henry VIII, it is stated by Hollinshed that 72,000 persons died by the hands of the executioner, which is at the rate of 2,000 in every year.”).  To be sure, Romilly had an agenda of his own, as an advocate for repealing the death penalty for various crimes.  See generally Charles Noble Gregory, Sir Samuel Romilly and Criminal Law Reform, 15 Harv. L. Rev. 446 (1902) (providing an example of Romilly’s advocacy against the death penalty).

     [38].   See e.g., Sir William David Evans, A Collection of Statutes Connected with the General Administration of the Law 29­–30 (Anthony Hammond & Thomas Colpitts Granger, 3d ed. 1836).

     [39].   Id.  Among others, Blackstone and Justice Scalia have referenced the judicial treatment of this statute, the latter somewhat scornfully.  See Scalia, supra note 32, at 582 (“I doubt, for instance, that any modern court would go to the lengths described by Blackstone in its application of the rule that penal statutes are to be strictly construed.”).

     [40].                                                               Scalia, supra note 32, at 582.

     [41].   4 Blackstone, supra note 9, at 88.

     [42].   Id. at 89.

     [43].   Id. at 88.

     [44].   37 Hen. VIII c. 8.

     [45].   Id. (emphasis added).

     [46].   Other felonies from which the benefit of clergy was withdrawn was the “robbing of anny Parsone or parsons in the highe waye or nere to the highe waye,” and the “felonious taking of anny good out of anny pishe Churche or other Churche or Chapell.”  1 Edw. VI c. 12.  That the statute made the distinction between “Parson” and “parsons” might have also cast doubt on whether the term “horses” should be read to also include a single horse.

     [47].   The Statutes at Large from the First Year of King Edward the Fourth to the End of the Reign of Queen Elizabeth 448 (2d ed. 2010).  

     [48].   Id.

     [49].   Sir Matthew Hale Knt., The History of the Pleas of the Crown 365 (2003).

     [50].   See, e.g., Solan, supra note 34, at 87–88.

     [51].   Id. at 88.

     [52].   2 & 3 Edw. VI c. 33.  But even then, the legislature seemed to admit that the initial statute was unclear.  The preface to its clarifying act stated that it was made necessary because “it is and hathe been ambyguous and doubtfull . . . whether that any p[er]son being in due fourme of the lawes found gyltye . . . [of] felonyous stealinge of one horse geldynge or mare ought to be admytted to have and enjoye the priviledge and benefyte of his Clergie . . . .”  Id.

     [53].   Maxwell, supra note 27, at 238–39.

     [54].   Romantz, supra note 3, at 526.

     [55].   United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).

     [56].   Note, The New Rule of Lenity, 119 Harv. L. Rev. 2420, 2422 (2006).

  1. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 357 (1994).  That statute, according to Professor Kahan, was “the very first piece of criminal legislation enacted by Congress.”  Id.

     [58].   [2 The Justices on Circuit 1790–1794] The Documentary History of the Supreme Court of the United States, 1789–1800, at 529 (Maeva Marcus et al. eds., 1988).

     [59].   Id. at 530.

     [60].   Wiltberger, 18 U.S. at 77.

     [61].   Id. at 99, 105.

     [62].   Id. at 104.

     [63].   See supra text accompanying notes 39–49.

     [64].   Yates v. United States, 574 U.S. 528, 547–48 (2015) (quoting Cleveland v. United States, 531 U.S. 12, 25 (2000)).

     [65].   See generally Valerie C. Brannon, Cong. Rsch. Serv., R45153,  Statutory Interpretation: Theories, Tools, and Trends (2018).

     [66].   Shaw v. United States, 137 S. Ct. 462, 469 (2016) (internal quotation marks and citation omitted); see also United States v. Shabani, 513 U.S. 10, 17 (1994) (“The rule of lenity, however, applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.”)

     [67].   Smith v. United States, 508 U.S. 223, 239 (1993) (alteration adopted) (internal quotation marks and citation omitted).

     [68].   Shaw, 137 S. Ct. at 469.

     [69].   See Reno v. Koray, 515 U.S. 50, 65 (1995) (“The rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” (internal quotation marks and citation omitted)); see also Brannon, supra note 65, at 31 n.317 and accompanying text (“Consequently, most courts will not apply the substantive canons [such as the rule of lenity] unless they conclude that after consulting other interpretive tools, the statute remains ambiguous.”).

     [70].   See infra note 75 and accompanying text.

     [71].   543 U.S. 1 (2004).

     [72].   Id. at 4.

     [73].   See id.

     [74].   Id. at 11 n.8.  This discussion of the rule of lenity in Leocal is dicta.  Clark v. Martinez, 543 U.S. 371, 397 (2005) (Thomas, J., dissenting).  But from the viewpoint of the lower courts, “there is dicta and then there is dicta, and then there is Supreme Court dicta.”  Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006).

     [75].   Leocal, 543 U.S. at 11 n.8; see also Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16 (2011) (“[W]e have said that the rule of lenity can apply when a statute with criminal sanctions is applied in a noncriminal context.”); Martinez, 543 U.S. at 380 (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation.”).

     [76].   See, e.g., United States v. Olvera-Cervantes, 960 F.2d 101, 103 (9th Cir. 1992).

     [77].   Id. at 102.

     [78].   Id. (emphasis in original).

     [79].   Id. at 103; see also United States v. Beck, 957 F.3d 440, 450 (4th Cir. 2020) (noting that “lenity doesn’t support [Beck’s] interpretation,” because his interpretation “would generally be against defendants’ interests”).

     [80].   See Shular v. United States, 140 S. Ct. 779, 787 (2020) (Kavanaugh, J., concurring) (“[A] court may invoke the rule of lenity only after consulting traditional canons of statutory construction.” (internal quotation marks and citation omitted)); id. at 787 n.1 (listing cases).

     [81].   Johnson v. United States, 529 U.S. 694, 713 n.13 (2000).

     [82].   Id.

     [83].   See Maxwell, supra note 27, at 238 (rule of strict construction requires ensuring that no cases outside the “spirit and scope of enactment” fall within a statute).

     [84].   Barber v. Thomas, 560 U.S. 474, 488 (2010).

     [85].   772 F.2d 940 (D.C. Cir. 1985).

     [86].   Id. at 948.

     [87].   See id. (noting that “the Supreme Court’s advice that it only serves as an aid for resolving an ambiguity . . . provides little more than atmospherics, since it leaves open the crucial question—almost invariably present—of how much ambiguousness constitutes an ambiguity”).

     [88].   McBoyle v. United States, 283 U.S. 25, 27 (1931); see also id. (“To make the warning fair, so far as possible the line should be clear.”).

     [89].   United States v. Bass, 404 U.S. 336, 348 (1971); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (“The rule that penal laws are to be construed strictly . . . is founded . . . on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.”).

     [90].   United States v. Nasir, 17 F.4th 459, 473 (3d Cir. 2021) (Bibas, J., concurring).  On this point, courts repeatedly cite to Judge Henry Friendly’s observation of “our ‘instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’”  Id. (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967)); see, e.g., United States v. R.L.C., 503 U.S. 291, 305 (1992) (plurality opinion); United States v. Pembrook, 609 F.3d 381, 391 (6th Cir. 2010); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006); United States v. Latimer, 991 F.2d 1509, 1514 (9th Cir. 1993).

     [91].   Sessions v. Dimaya, 138 S. Ct. 1204, 1244 (2018) (Thomas, J., dissenting) (“[T]he vagueness doctrine extends to all regulations of individual conduct, both penal and nonpenal.”).

     [92].   See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810) (Marshall, C.J.) (“It is the peculiar province of the legislature to prescribe general rules for the government of society.”).

     [93].   See Marinello v. United States, 138 S. Ct. 1101, 1108 (2018) (explaining that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).

     [94].   As one commentator noted:

Two reasons can be found for the decline in importance of the lenity canon.  First, the criminal law has been used more and more, not just to condemn evil behavior, but to regulate economic activity.  Jail sentences and stigmas are less likely to attach, either by law or in practice.  In that setting, a generalized tilt toward the accused loses some of its attraction.  Second, as public concern about crime increases, the inclination to adopt an across-the-board presumption in favor of the accused weakens.

William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation 204 (1999).

     [95].   Maxwell, supra note 27, at 239.

     [96].   See, e.g., Maine v. Millett, 203 A.2d 732, 734 (Me. 1964) (quoting Maine v. Blaisdell, 105 A. 359, 360 (Me. 1919)) (noting that a statute declaring a felony “calls for a more strict construction than one which declares an act to be a misdemeanor”); Mo., K. & T. Ry. Co. v. State, 100 S.W. 766, 767 (Tex. 1907) (“It is a well-established principle of statutory construction that penal statutes must be strictly construed in determining the liability of the person upon whom the penalty is imposed, and the more severe the penalty, and the more disastrous the consequence to the person subjected to the provisions of the statute, the more rigid will be the construction of its provisions in favor of such person and against the enforcement of such law.”).  In United States v. Plaza Health Laboratories, 3 F.3d 643 (2d Cir. 1993), the Second Circuit declined to construe the Clean Water Act (“CWA”) in the same way that it did the Rivers and Harbors Act (“RHA”).  Id. at 647–48.  The court “view[ed] with skepticism the government’s contention that [it] should broadly construe the greatly magnified penal provisions of the CWA based upon RHA cases that did so in the context of strict-liability and misdemeanor penalties.”  Id. at 648.  See generally 1 Wayne R. LaFave, Substantive Criminal Law § 2.2(d) (3d ed. 2021) (footnote omitted) (citing Millett, 203 A.2d 732) (“No doubt some criminal statutes deserve a stricter construction than others.  Other things being equal, felony statutes should be construed more strictly than misdemeanor statutes; those with severe punishments more than those with lighter penalties.”).

     [97].   See, e.g., United States v. Davis, 139 S. Ct. 2319, 2352 (2019) (Kavanaugh, J., dissenting).

     [98].   See, e.g., Massachusetts v. St. Hilaire, 21 N.E.3d 968, 979 (Mass. 2015) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)); United States v. Gallaher, 624 F.3d 934, 941(9th Cir. 2010) (quoting United States v. Bass, 404 U.S. 336, 348 (1971)); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006) (quoting Bass, 404 U.S. at 348)).

     [99].   United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).

   [100].   See, e.g., Dowling v. United States, 473 U.S. 207, 213 (1985); United States v. Boston & M. R.R., 380 U.S. 157, 160 (1965) (“A criminal statute is to be construed strictly, not loosely.  Such are the teachings of our cases from United States v. Wiltberger down to this day.” (citation omitted)); United States v. Canelas-Amador, 837 F.3d 668, 674 (6th Cir. 2016); United States v. Valle, 807 F.3d 508, 527 (2d Cir. 2015); United States v. Parker, 762 F.3d 801, 807 (8th Cir. 2014); United States v. Winchester, 916 F.2d 601, 607 (11th Cir. 1990) (“Lenity, the quality of being lenient or merciful, is an application of the common law principle that criminal statutes are to be strictly construed, a rule which ‘is perhaps not much less old than construction itself.’” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)).

   [101].   United States v. Harriss, 347 U.S. 612, 617 (1954).

   [102].   Spector, supra note 15, at 545–46.

   [103].   See, e.g., Rule of Lenity, Black’s Law Dictionary (11th ed. 2019).  But see, Popkin, supra note 94, at 204.

   [104].   1 Emlin McClain, A Treatise on the Criminal Law as Now Administered in the United States § 83 (1897).

   [105].   Id.

   [106].   Marinello v. United States, 138 S. Ct. 1101, 1106 (2018) (quoting United States v. Aguilar, 515 U.S. 593, 600 (1931)).

   [107].   See United States v. Komzinski, 487 U.S. 931, 951 (1988) (denouncing “the arbitrariness and unfairness of a legal system in which the judges would develop the standards for imposing criminal punishment on a case-by-case basis”).

   [108].   See Marinello, 138 S. Ct. at 1108 (stating that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).

   [109].   Pub. L. No. 115-391, 132 Stat. 5194.

   [110].   21 U.S.C. § 841(b) (2009) (amended 2010).

   [111].   Pub. L. No. 111-220, § 2, 124 Stat. 2372.

   [112].   Under § 404(b) of the First Step Act of 2018, whether a sentence was ultimately reduced remained within the court’s discretion.  See Pub. L. No. 115-391, 132 Stat. 5194, 5222.

   [113].   Id.

   [114].   First Step Act § 404(b).

   [115].   Id. § 404(a).

   [116].   See United States v. Davis, 961 F.3d 181, 183 (2d Cir. 2020).

   [117].   See id.

   [118].   See United States v. King, 423 F. Supp. 3d. 481, 484 (M.D. Tenn. 2019) (“To date, it does not appear that any Court of Appeals has weighed in on the issue, but the vast majority of district court[s] to have addressed the matter have concluded that the count of the conviction controls . . . .”).

   [119].   See, e.g., United States v. Henderson, 399 F. Supp. 3d 648, 653–54 (W.D. La. 2019).  The Supreme Court has since clarified that the phrase “statutory penalties” refers to “a violation of a Federal criminal statute.”  Terry v. United States, 141 S. Ct. 1858, 1862 (2021).

   [120].   See Henderson, 399 F. Supp. 3d at 654; see also King, 423 F. Supp. 3d at 484–85; United States v. Hardnett, 417 F. Supp. 3d 725, 737 (E.D. Va. 2019); United States v. Willis, 417 F. Supp. 3d 569, 575 (E.D. Pa. 2019); United States v. Williams, 402 F. Supp. 3d 442, 448 (N.D. Ill. 2019); United States v. Askins, No. CR-02-00645-001, 2019 WL 3800227, at *3 (D. Ariz. Aug. 6, 2019); United States v. White, No. 99-CR-628-04, 2019 WL 3228335, at *4 (S.D. Tex. July 17, 2019); United States v. Martin, No. 03-CR-795, 2019 WL 2571148, at *2 (E.D.N.Y. June 20, 2019); United States v. Rose, 379 F. Supp. 3d 223, 229 (S.D.N.Y. 2019); United States v. Allen, 384 F. Supp. 3d 238, 242 (D. Conn. 2019); United States v. Pierre, 372 F. Supp. 3d 17, 22 (D.R.I. 2019).

   [121].   See, e.g., United States v. Jackson, No. 03-0642, 2019 U.S. Dist. LEXIS 109993, at *7–8 n.3 (E.D. Pa. June 26, 2019) (“To the extent the Government suggests that the meaning of ‘violation’ in § 404(a) is ambiguous, the Court disagrees.  As a result, the Court’s interpretation of ‘violation’ in the First Step Act is not subject to the rule of lenity, which requires courts to construe ambiguities in criminal statutes in favor of defendants.” (citation omitted)).

   [122].   Dillon v. United States, 560 U.S. 817, 841 (2010).

   [123].   United States v. Jones, 962 F.3d 1290, 1297 (11th Cir. 2020); see also United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir. 2015) (“The law is clear that the district court has no inherent authority to modify a sentence; it may do so only when authorized by a statute or rule.”).

   [124].   United States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013).

   [125].   803 F.3d 597 (11th Cir. 2015).

   [126].   See id. at 598; Fed. R. Crim. P. 35(b).

   [127].   Pub. L. 104–132, §§ 201–11, 110 Stat. 1214, 1227–41 (1996).

   [128].   Puentes, 803 F.3d at 609.

   [129].   Id. at 610.

   [130].   Johnson v. United States, 576 U.S. 591, 630 (2015) (Alito, J., dissenting) (noting that fair notice concerns “have less force when it comes to sentencing provisions, which come into play only after the defendant has been found guilty of the crime in question”).

   [131].   See 18 U.S.C. § 3582(c)(2).

   [132].   Dillon v. United States, 560 U.S. 817, 828 (2010); see also United States v. Padilla-Diaz, 862 F.3d 856, 861 (9th Cir. 2017) (“As acts of lenity, such sentence reductions are not constrained by the general policies underlying initial sentencing or even plenary resentencing proceedings.”); United States v. Maiello, 805 F.3d 992, 1000 (11th Cir. 2015); United States v. Johnson, 703 F.3d 464, 469 (8th Cir. 2013).

   [133].   United States v. Hansen, 772 F.2d 940, 948 (D.C. Cir. 1985).

   [134].   Holloway v. United States, 526 U.S. 1, 21 (1999) (Scalia, J., dissenting).  This statement is especially striking from Justice Scalia, who along with Bryan Garner has been credited with maintaining the rule of lenity’s significance in our law.  See Intisar A. Rabb, Response, The Appellate Rule of Lenity, 131 Harv. L. Rev. F. 179, 180 (2018) (“Justice Scalia and Professor Bryan Garner have helped elevate the rule of lenity by including it in a set of fifty-seven recommended canons of construction in their widely read treatise on interpretation.”).

   [135].   Yates v. United States, 574 U.S. 528, 547–48 (2015) (internal quotation marks omitted).

By Morgan Kleinhandler

There is no doubt that the advance of modern technology has allowed for an increase in the interconnected nature of American society.[1]  Specifically, the popularity of smartphones has allowed for a new level of immediate interconnectedness that was previously impossible. [2] With this rise in technology has come a new form of human interaction that can lead to dangerous and irreparable consequences[3]—for example, encouraging the suicide of another through text messaging.  A new legal precedent has been set in Massachusetts to deter this type of encouragement, making it a criminally punishable offense to encourage suicide through texting.[4]  In many states, it is illegal to assist in the suicide of another, and being found guilty of doing so will result in criminal liability.[5]  As technology has evolved, the state of Massachusetts has made national headlines for including the encouragement of suicide through text message as an illegal and punishable form of assisting in a suicide.[6]

In 2017, Michelle Carter was found guilty in Massachusetts state court for encouraging her boyfriend, Conrad Roy, to commit suicide through thousands of text messages.[7]  Similarly, this past month, on December 23, 2021, Inyoung You pleaded guilty in Massachusetts to assisting in the suicide of her boyfriend, Alexander Urtula, through about 47,000 text messages.[8]  Both cases have grabbed national attention[9] and have opened Americans’ eyes to the way that communication through technology can lead to dire consequences.

The Supreme Court has established that the right to suicide is not a fundamental or liberty interest protected by the Constitution, and governmental impairment to the right to suicide will receive the lowest level of scrutiny from the courts.[10]  However, the First Amendment establishes the right to free speech for all citizens,[11] which the Supreme Court has long interpreted.[12]  The Supreme Court has held that the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech,”[13] establishes a “fundamental personal right[]”[14] to free speech which can only be impaired by the government if such impairment survives strict scrutiny.[15]  Because the right to suicide is not constitutionally protected and receives minimal scrutiny[16] whereas government impairment on freedom of speech receives the highest level,[17] some courts have held that encouraging another’s suicide will be punishable only if strict scrutiny for such punishment is met.[18]  For these reasons, the Minnesota Supreme Court held that verbal encouragement to another person before that person’s suicide is constitutionally protected speech that could not be criminally punishable because it does not survive strict scrutiny.[19]

The State of Massachusetts interpreted the situation differently, however, finding that when speech constitutes the crime of involuntary manslaughter, First Amendment rights are not affected.[20]  In the case of Michelle Carter, the court clarified that it was not simply Carter’s words that were being punished; it was “reckless or wanton words causing death” that constituted a crime.[21]  The court held that even though Carter committed the crime of involuntary manslaughter using just words, she could not “escape liability” through First Amendment protection.[22]  Thus, because Carter’s illegal conduct was being punished, and not Carter’s speech alone, her First Amendment right to free speech was not violated.[23] 

Massachusetts also concluded restriction of verbal encouragement of suicide could pass strict scrutiny even if the First Amendment applied because the state “has a compelling interest in deterring speech that has a direct, causal link to a specific victim’s suicide.”[24]  On appeal, the court affirmed that the state had a justifiable reason to restrict Carter’s speech, holding that the state has a “compelling interest in preserving life.”[25]  Through Massachusetts’s reasoning, because states have a compelling interest in deterring citizens from committing suicide, especially with the encouragement of others leading to the suicide,[26] the constitutional protections provided by the First Amendment may be overcome in cases like Michelle Carter and Inyoung You.

The Massachusetts court in Carter did point out, however, that the elements of involuntary manslaughter charges must be met on a case-by-case basis to rightfully prove that charge in the case of encouraging suicide through text message.[27]  In Massachusetts specifically, in order to prove involuntary manslaughter, the state must prove that the defendant caused the death of another through wanton or reckless behavior or failure to act.[28]  These elements align with many other states’ laws on involuntary manslaughter.[29] In Carter’s case, the court found that her text messages were enough to prove she committed involuntary manslaughter.[30]  The court reasoned that because Carter had such a close relationship with her boyfriend and because her text messages were so supportive and temporally close to Roy’s suicide that they were a probable cause of his suicide.[31]  Carter’s case was appealed to the United States Supreme Court, but the Court denied the petition for writ of certiorari,[32] suggesting that the Court may agree with Massachusetts’s analysis on the matter.

Michelle Carter’s sentence was the first time an American has been punished for encouraging the suicide of another using only text messaging.[33]  A few years later, Inyoung You’s sentencing following a guilty plea for a near-identical situation shows a trend in punishing text messages which explicitly encourage the suicide of another.[34]  Although both Carter and You’s cases occurred in Massachusetts, this trend of punishing those who actively encourage and contribute to the suicide of another using technological communication could very well become a trend throughout the states.


[1] Ray Zinn, The Interconnectedness of Things, Forbes (Dec. 15, 2017, 9:00 AM), https://www.forbes.com/sites/forbestechcouncil/2017/12/15/the-interconnectedness-of-things/?sh=18e1245865d1.

[2] Christian Jarrett, How Are Smartphones Affecting Our Relationships?, World Econ. Forum (Nov. 3, 2015), https://www.weforum.org/agenda/2015/11/how-are-smart-phones-affecting-our-relationships/.

[3] See generally Melissa Locker, Two Young Women Have Been Accused of Persuading Their Boyfriends to Kill Themselves—but Why?, Health (Jan. 24, 2020), https://www.health.com/mind-body/inyoung-you-case-commit-suicide (discussing how texting can lead to more detached feelings and judgments).

[4] Commonwealth v. Carter, 115 N.E.3d 559 (2019), cert. denied 140 S. Ct. 910 (2020).

[5] Sierra Taylor, Comment, Kill Me Through the Phone: The Legality of Encouraging Suicide in an Increasingly Digital World, 2019 BYU L. Rev. 613, 627 (2020).

[6] Locker, supra note 3.

[7] Carter, 115 N.E.3d at 561–62, 574.

[8] Marisa Sarnoff, Inyoung You Pleads Guilty in Boston Manslaughter-by-text Case, Can’t Profit from Story, Bos. Herald, https://www.bostonherald.com/2021/12/23/inyoung-you-pleads-guilty-in-boston-manslaughter-by-text-case-cant-profit-from-story/ (Dec. 23, 2021, 8:11 PM); Locker, supra note 3.

[9] Sarnoff, supra note 8; Locker, supra note 3.

[10] Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[11] U.S. Const. amend. I.

[12] See, e.g., Gitlow v. New York, 268 U.S. 652, 666–69 (1925); Cohen v. California, 403 U.S. 15, 23–26 (1971); Reno v. Am. C.L. Union, 521 U.S. 844, 870–74 (1997).

[13] U.S. Const. amend. I.

[14] Gitlow, 268 U.S. at 666.

[15] Id.

[16] Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[17] Gitlow, 268 U.S. at 666.

[18] State v. Melchert-Dinkel, 844 N.W.2d 13, 24 (Minn. 2014); cf. Commonwealth v. Carter, 115 N.E.3d 559, 572 (Mass. 2019), cert. denied 140 S. Ct. 910 (2020).

[19] Melchert-Dinkel, 844 N.W.2d at 24.

[20] Carter, 115 N.E.3d at 572.

[21] Id.

[22] Id. at 570.

[23] Id. at 571.

[24] Commonwealth v. Carter, 52 N.E.3d 1054, 1064 n.17 (Mass. 2016), aff’d, Carter, 115 N.E.3d 559.

[25] Carter, 115 N.E.3d at 572.

[26] Id.

[27] Carter, 52 N.E.3d at 1063.

[28] Carter, 115 N.E.3d at 569.

[29] See 40 C.J.S. Homicide § 127 (2021) (describing broad elements of involuntary manslaughter statutes).

[30] Id.at 568.

[31] Id.

[32] Carter v. Massachusetts, 140 S. Ct. 910 (2020).

[33] Locker, supra note 3.

[34] Id.


Post image by Helen Harrop on Flickr

By: Nick Christopherson

On August 30, 2019, twenty-three year old Elijah McClain died[1] from injuries sustained during a police welfare check.[2]  On the night of the encounter, police responded to a report of a man (McClain) who “look[ed] sketchy,” and after perceiving McClain to be resisting arrest, the officers quickly initiated a takedown.[3] An independent report of the incident stated that it was unclear whether “McClain’s movements, interpreted by the officers as resisting, were attempts to escape or simply an effort . . . to avoid the painful force being applied on him, to improve his breathing, or to accommodate his vomiting.”[4] Paramedics later injected McClain with a sedative, the misapplication of which caused McClain to suffer a heart attack and die several days later.[5]

Police departments dispatch thousands of welfare checks per year in response to a variety of requests submitted by the community.[6] These calls are unpredictable and require talented and flexible responses. Some callers report that their neighbor’s home is being burgled,[7] others worry about unresponsive grandparents,[8] others call to report “sketchy” or sick-looking individuals in the community.[9] For this reason, courts have described police officers as “a ‘jack-of-all emergencies,’” who are “expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing, and provide an infinite variety of services to preserve and protect community safety.”[10] Courts describe this police function as “community caretaking.”[11]

When an officer acts “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,” she acts in her capacity as a community caretaker.[12] However, the doctrine of community caretaking also acts as an umbrella term that covers other exceptions to the Fourth Amendment’s protections against unreasonable searches and seizures. For instance, the doctrines of exigent circumstances,[13] emergency aid,[14] public servant,[15] and warrantless entry[16] all fall under the community caretaking doctrine and are often analyzed simultaneously by courts.

Nevertheless, in rare instances, the community caretaking doctrine is applied by itself—unaccompanied by other exceptions—to justify instances of abusive discretion. For example, in Tinius v. Carrol Cnty. Sheriff Dept.,[17] officers observed a man, named Tinius, walking along the highway in the middle of winter without a coat.[18] After suspecting Tinius was on drugs, the officers cuffed Tinius and took him to the hospital, where medical staff recommended admitting Tinius to the hospital’s psychiatric facility.[19] Admission required a urine sample, which the officers obtained through a physically forced catheterization.[20] Tinius was never suspected of any crimes, nor did he give his consent to the detainment and forced catheterization.[21]

On appeal, the court stated that the officers “were exercising their community caretaking functions when they transported Tinius to the hospital and later restrained him” while obtaining the urine sample, and that the officers’ actions did not create the basis for a tort claim.[22] Courts have justified other tortious conduct by officers under similar reasoning. For example, a man crying on the sidewalk ended in a physical encounter with police during which the man sustained serious injuries.[23]

The topic of police accountability has dominated recent news cycles, and a legal doctrine that enables officers to initiate stops, obtain evidence, and utilize force without a warrant and probable cause is dangerous. All Tinius did to suffer detention and forced catheterization was walk along the side of the road without a coat during the winter. Currently under the community caretaking doctrine, courts allow intrusive police conduct meant to protect citizens from potential self-harm. But is this right?

In response to this question, the Supreme Court recently limited the scope of the community caretaking doctrine in Caniglia v. Strom.[24] There, the Supreme Court stated that officers’ “caretaking duties” do not create “a standalone doctrine that justifies warrantless searches and seizures in the home.”[25] The Court reasoned that officer conduct must satisfy one of the four exceptions to the Fourth Amendment’s prohibition of unreasonable searches—(1) possessing a valid warrant, (2) entering amidst exigent circumstances, (3) rendering emergency aid to injured or imminently threatened individuals, and (4) acting as any normal citizen might act (ex., knocking on door)—but that the community caretaking doctrine by itself is insufficient to justify otherwise unexcused tortious conduct by an officer in a private home.[26]

Caniglia’s holding aims to limit the abusive nature of the community caretaking doctrine by preventing its application to home entry.[27] However, the effects of Caniglia are still uncertain, and the doctrines application to tortious police conduct outside the home remains unresolved.  Given the state of unrest in America today and the Supreme Court’s recent interest in this topic, it is likely these ambiguities will be fleshed out in coming jurisprudence.[28]


[1] Claire Lampen, What We Know About the Killing of Elijah McClain, The Cut, https://www.thecut.com/2021/09/the-killing-of-elijah-mcclain-everything-we-know.html (last updated Sept. 1, 2021).

[2] Welfare checks, also called wellness checks, occur when police dispatch to determine if an individual is safe and healthy. While the term encompasses police responses to a variety of non-criminal activity, one example might be a family member calling to request an officer check on an elderly relative whom the caller suspects is ill, fallen, or even dead in their home, However, sometimes police initiate their own checks on individuals they feel are sick, mentally ill, or pose a danger to themselves or the community. See generally State v. Brumelow 289 So.3d 955, 956 (Fla. Dist. Ct. App. 2019).

[3] Lampen, supra note 1.

[4] Jonathan Smith et al., City of Aurora, Investigation Report and Recommendations 18 (Feb. 22, 2021), https://p1cdn4static.civiclive.com/UserFiles/Servers/Server_1881137/File/News%20Items/Investigation%20Report%20and%20Recommendations%20(FINAL).pdf.

[5] Id. at 10.

[6] Andrea L. Steffan, Law Enforcement Welfare Checks and the Community Caretaking Exception, 53 Loy. L.A. L. Rev. 1071, 1072 (2020) (“[A]t least one suburban police department made around 2,000 welfare checks in 2017.”)

[7] See, e.g., State v. Alexander, 124 Md.App. 258 (1998) (involving neighbors who called police suspecting their neighbor’s house had been burgled and officers entered home and discovered a large marijuana growing operation).

[8] See, e.g., Craig v. County of Santa Clara, No. 17-CV-02115-LHK, 2018 WL 3777363, at *1 (N.D. Cal. Aug. 9, 2018) (Involving officers checking on an unresponsive grandmother with welfare check resulting in grandfather being shot and killed by police).

[9] See, e.g., United States v. Garner, 416 F.3d 1208 (10th Cir. 2005) (involving reports of a man who had been sitting slumped over in a field outside an apartment complex for hours and police later tackled and arrested after he attempted to flee officer’s detainment.).

[10] United States v. Rodriguez-Morales, 929 F.2d 780, 784 (1st Cir. 1991).

[11] Id.

[12] Cady v. Dobrowski, 413 U.S. 433, 441 (1973).

[13] See United States v. Rohrig, 98 F3d 1506 (6th Cir. 1996) (holding that loud music created exigent circumstances that justified warrantless entry into home).

[14] See Randall v. State, 101 N.E.3d 831 (Ind. App. 2018) (holding that man slumped over in his car created the need for emergency aid from officer).

[15] See Wilson v. State, 975 A.2d 877, 888 (2009) (“When the police act to protect the public in a manner outside their normal law enforcement function, many courts have applied the [public servant] doctrine to validate many warrantless searches.”).

[16] Id.  See also United States v. Jackson, 189 F.3d 502 (1999); Ermini v. Scott, 249 F.Supp.3d 1253 (2017); State v. Deneui, 775 N.W.2d 221 (S.D. 2009); State v. Pinkard, 785 N.W.2d 592 (Wis. 2010); United States v. Johnson, 410 F.3d 137, (4th Cir. 2005); United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000). The vast majority of community caretaking cases involve warrantless searches, seizures, and entries.

[17] 321 F. Supp. 2d (N.D. Iowa 2004).

[18] Id. at 1069.

[19] Id.

[20] Id. at 1070.

[21] Id. at 1068–1070.

[22] Id. at 1084.

[23] Gallegos v. City of Colo. Springs, 114 F.3d 1024 (10th Cir. 1997).

[24] 141 S. Ct. 1596 (2021).

[25] Id. at 1598.

[26] Id.

[27] Id.

[28] For further reading on the community caretaking doctrine, see Matthew C. Shapiro, The Road to Fourth Amendment Erosion Is Paved with Good Intentions: Examining Why Florida Should Limit the Community Caretaker Exception, 6 FIU L. Rev. 351 (2011); David Fox, The Community Caretaking Exception: How the Courts Can Allow the Police to Keep Us Safe Without Opening the Floodgates to Abuse, 63 Wayne L. Rev. 407 (2018); Valerie Moss, The Community Caretaking Doctrine: The Necessary Expansion of the New Fourth Amendment Exception, 85 Miss. L.J. (2017); Mark Goreczny, Taking Care While Doing Right by the Fourth Amendment: A Pragmatic Approach to the Community Caretaker Exception, 14 Cardozo Pub. L. Pol’y & Ethics J. 229 (2015); Alyssa L. Lazar, Protecting Individuals’ Fourth Amendment Rights Against Government Usurpation: Resolutions to the Problematic and Redundant Community Caretaking Doctrine, 57 Duq. L. Rev. 198 (2019); Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261 (1998); Michael R. Dimino, Sr., Police Paternalism: Community Caretaking, Assistance Searches, and Fourth Amendment Reasonableness, 66 Wash. & Lee L. Rev. 1485 (2009); Andrea L. Steffan, Law Enforcement Welfare Checks and the Community Caretaking Exception to the Fourth Amendment Warrant Requirement, 53 Loy. L.A. L. Rev. 1071 (2020).

10 Wake Forest L. Rev. Online 86

Holly Black*

I.  Introduction

Since 1919, North Carolina had treated its sixteen- and seventeen-year-old offenders as adults.[1]  These teenagers, who were considered juveniles in every other state in America, were sent through North Carolina’s adult criminal justice system for a variety of crimes.[2]  Their offenses went on criminal records. They faced difficulties continuing their education, finding gainful employment, and ultimately, reacclimating into society.[3]  On December 1, 2019, after one-hundred years of this misguided system, North Carolina finally raised its age of juvenile jurisdiction to eighteen.[4]

The Juvenile Justice Reinvestment Act (“JJRA”) allows sixteen- and seventeen-year-old juveniles to go through the juvenile justice system when accused of misdemeanors, low-level felonies, and other non-violent crimes.[5]  With this change comes a variety of benefits. North Carolina taxpayers save money, recidivism rates decrease, and the overall safety and wellbeing of juvenile delinquents increases significantly.[6]

However, the change also brings a variety of new challenges for the state of North Carolina.  Arguably, the largest of these challenges is fully funding the JJRA.  While the benefits of the JJRA are enormous, they can only be realized if the state is able to fully fund it. An influx of new sixteen- and seventeen-year-old offenders will enter the juvenile justice system throughout 2020.  The state will require additional funding in all areas to meet this new demand, but especially in courts, district attorney’s offices, Indigent Defense Services, and Youth Development Centers.  This additional funding must be in place before any of the aforementioned benefits can be realized.  While implementation of the JJRA is an investment in North Carolina’s youth, it is also quite literally a monetary investment in North Carolina’s juvenile justice system.

II.  North Carolina’s Raise the Age Act

A.     Origins of the Act

On December 1, 2019, North Carolina became the final state to “raise the age” of juvenile jurisdiction to eighteen.[7]  The JJRA was included within the 2017 state budget and was passed on June 19, 2017.[8]  The act makes several changes to the juvenile code, but most notably, it increases the age of juvenile court jurisdiction to include misdemeanors and non-violent felonies committed by sixteen- and seventeen-year-old juveniles.[9]

North Carolina has traditionally been a state that is “tougher” on juvenile crime. mIt has one of the lowest age limits in the nation for juvenile jurisdiction and as a result, allows for children as young as six years old to enter into the juvenile court system.[10]  Prior to passage of the JJRA, it also had the lowest age limit for superior court jurisdiction.[11]

With more and more states raising their juvenile court jurisdiction ages, North Carolina’s youth were at a significant disadvantage when compared to youth in other states.[12]  In September 2015, the North Carolina Commission on the Administration of Law and Justice (“NCCALJ”) convened, and each of the committee’s five branches[13] made independent recommendations to correct this disadvantage.  The first recommendation the committee made regarding juvenile justice was to “raise the juvenile age to eighteen for all crimes except violent felonies and traffic offenses.”[14]

 The committee noted that at the time, New York was the only other state to set the juvenile jurisdiction limit at sixteen.[15]  Additionally, if the age was raised, a “vast majority” of North Carolina’s teens would fall under juvenile jurisdiction, since teens mainly commit misdemeanors and non-violent felonies.[16]  Most importantly, the committee noted that raising the age would make North Carolina’s communities safer by decreasing recidivism,[17] and would increase the overall wellbeing of its juveniles by giving teen offenders an additional opportunity for “developmentally appropriate” justice.[18]  As an added benefit, implementing the JJRA would save a significant amount of money.[19]  With these reasons in mind, the committee published its final report in March of 2017 and recommended raising the juvenile age to eighteen.

These economic and safety benefits, as well as pressure from other states already passing their own “raise the age” legislation, pushed the North Carolina General Assembly to raise the juvenile jurisdiction age.[20]  In 2017, proposed legislation was gaining bipartisan support in the General Assembly and received 90 percent public support in both rural and urban areas.[21]  The bill was passed on June 19, 2017, and as a result the juvenile age in North Carolina increased to eighteen effective December 1, 2019.[22]

The JJRA allows juveniles ages sixteen and seventeen to remain in juvenile court if they have been accused of a misdemeanor or a non-violent felony.[23]  Since Class A-G felonies are considered violent felonies, juveniles who are accused of those crimes are automatically transferred to superior court.[24]  Certain Class H and I felony cases, however, can be considered non-violent felonies and can remain under juvenile court jurisdiction with judicial discretion.[25]

B.    Under the Act

As indicated by the term “raise the age,” the biggest change brought by the JJRA is that the juvenile court now has exclusive, original jurisdiction over all crimes and infractions allegedly committed by youths aged sixteen and seventeen.[26]

The JJRA has also changed the length of juvenile court jurisdiction and now allows jurisdiction to continue over any juvenile determined delinquent at age sixteen until the juvenile turns nineteen.[27]  Similarly, the juvenile court retains jurisdiction over seventeen-year-olds until they reach age twenty.[28]  The extension of juvenile court jurisdiction for these cases allows juveniles to be adjudicated and  receive dispositions up until the juvenile reaches age nineteen or twenty.[29]  This also allows for any disposition to be prolonged for the same amount of time.  This provision, however, does not allow an offense committed at age eighteen or older to be processed in juvenile court.[30]

Because the JJRA increased juvenile court jurisdiction to age eighteen, the Act also brings certain offenses that require the perpetrator to be at least sixteen years old under juvenile court jurisdiction.[31]  This change was made in an effort to rehabilitate youth while they are juveniles and before criminal activity becomes more aggressive and leads to more serious consequences.[32]  With this focus in mind, the JJRA also targets juvenile gang activity and requires intake counselors to conduct “Gang Assessments” on juveniles age twelve and older as part of evaluating complaints.[33]

The JJRA also expands protections for victims and creates new victims’ rights during the juvenile court intake process.  Previously, if a victim had not signed the complaint, he or she had no right to request a review of the petition.[34]  However, the JJRA now requires that if a juvenile court counselor decides not to file a petition, immediate notice of the decision must be provided to the both the complainant and the alleged victim.[35]  If a review is requested, both the complainant and the alleged victim are included in the prosecutor’s conferences regarding the review.[36]

The JJRA also brings several indirect changes, including the expansion of parental involvement in cases involving sixteen- and seventeen-year-olds[37] and the expansion of the “Once an Adult, Always an Adult” clause.[38]  In the two years between the JJRA’s passage in 2017 and its implementation in 2019, sixteen- and seventeen-year-olds were still tried and convicted in superior court for any and all criminal offenses.  If a sixteen- or seventeen-year-old had been convicted of a misdemeanor or non-violent felony,[39] but the court proceedings began before December 1, 2019, they still would have been tried and convicted in superior court.[40]  Therefore, the teen would have a superior court conviction on his or her record, and by default, they would be included in the class of “Once an Adult, Always an Adult” juveniles who lack juvenile court jurisdiction.[41]

C.    Implementing the Act

With all the changes between the old and new statutory framework, implementation of the JJRA requires specific, planned action.  The North Carolina General Assembly required the creation of a Juvenile Jurisdiction Advisory Committee (“JJAC”) for this purpose.[42]  This twenty-one-member committee[43] is responsible for planning the changes needed to fully implement the JJRA.[44]  The committee submitted a required report to the General Assembly on March 1, 2018 detailing its specific plan and cost estimates for raising the age of juvenile jurisdiction to eighteen.[45]  It also reported on specific recommendations concerning juvenile jurisdiction extending to certain delinquency matters and proceedings, such as habitual misdemeanors.[46]

To prepare for the December 1, 2019 implementation date, Juvenile Justice was focused on four main objectives: hiring and training incoming and current staff members, increasing capacity of youth detention centers and Youth Development Centers (“YDCs”), facilitating secure custody transportation, and equipping “decision makers” with “up-to-date data during implementation.”[47]

In response to the first objective, Juvenile Justice Staff and North Carolina Department of Public Safety (“DPS”) Human Resources worked jointly to create positions and hire 244 new staff members around the state.[48]  Juvenile Justice also partnered with the UNC School of Government and other juvenile-focused agencies to train at least 5,000 “stakeholders from various disciplines.”[49]

The second and third objectives both focus on expansion of youth facilities. Juvenile Justice is working on increasing youth detention facilities’ bed capacities by two hundred to three hundred beds.[50]  It is also working on opening a sixty-bed YDC in Rockingham County and a restorative justice pilot program at the Edgecombe YDC.[51]

Juvenile Justice is also changing its transportation system into separate facility-based and court-services based transportation teams.[52]  This will help maximize the effectiveness of existing court staff as well as provide added support to youth detention center staff, YDC staff, and court counselors.[53]

Finally, Juvenile Justice is also working on new ways to analyze and distribute data so it can “equip decision makers with up-to-date data during implementation.”[54]  From an implementation standpoint, this is arguably one of the most important investments in the JJRA.  Since the aim of juvenile justice is rehabilitation, courts, attorneys, and detention facilities require a wealth of background information on a juvenile in order to make decisions that facilitate rehabilitation.[55]  Therefore, the JJAC is investing in a variety of ways to better equip decision makers with the necessary information.

One new method of data analytics is the Juvenile Justice Service Directory that provides court counselors with an inventory of program and service options for referrals.[56]  The court system is also updating its existing court database system, North Carolina Juvenile Online Information Network (“NC-JOIN”), to allow staff to better track a juvenile’s diversion or post-disposition progress after being placed in a program or facility.[57]  The database also contains a program for Globalized Assessment of Individualized Needs (“GAIN”) that allows court counselors to screen juveniles for underlying problems such as mental health or substance abuse issues.[58]  The JJAC is also investing in visual analytics to analyze recidivism outcomes and business analytics that allows data from a variety of sources and methods to be merged into one analysis.[59]  Not only do these analytics programs allow for timely and proper adjudication and disposition of current delinquent juveniles, but they also provide vital information for further juvenile justice reforms in North Carolina.[60]

In addition to the changes recommended by the JJRC, the North Carolina General Assembly has also been allocating funding for certain areas most in need of resources to implement the JJRA.  This funding is allocated in the yearly appropriations act, and will be discussed further in Part IV of this Comment.

D.    The Benefits of the Act

The benefits of implementing the JJRA are immense.  Raising the age of juvenile jurisdiction helps juveniles receive “developmentally tailored justice” that holds youth accountable while also emphasizing rehabilitation and addressing underlying issues.[61]  Recidivism rates drop[62] and without a record of adult convictions, juveniles can continue their education with fewer obstacles and eventually join the workforce.[63]  Our communities are safer, our juveniles are safer, and the state of North Carolina saves a considerable amount of money.[64]

All of these benefits stem from the concept that juveniles must be treated with a special form of justice.  Children and teens are no longer seen as “mini adults” as they were in the past.  Likewise, the juvenile justice system is not seen as a scaled down version of superior court.  One of the major successes of the JJRA is that it allows sixteen- and seventeen-year-olds to have access to the help and resources they need during one of the most vulnerable periods of their lives.  When a teen is nearing adulthood, he has more power than a younger child.[65]  And yet, that teen’s brain still has not fully formed.[66]  Therefore, including teens in the juvenile justice system rather than automatically sending them to superior court allows for the state to intervene and correct teens’ behavior before they turn eighteen.  This intervention allows the state the opportunity to prevent a teen from  later committing offenses that are more severe, both in terms of sentencing and future consequences. 

Implementing the JJRA also has significant economic benefits for the state of North Carolina.  Over time, the state will save money by rehabilitating youth, rather than incarcerating them for years at a time in adult detention facilities.[67]  Processing juvenile offenders through the juvenile justice system has proven to increase rehabilitation and decrease recidivism.[68]  The state has also projected savings upwards of $7.1 million due to this drop in recidivism.[69]  Since North Carolina is the last state to raise the age of juvenile jurisdiction, it can also look to other states’ success in their own “raise the age” legislation.  Implementing the JJRA is an investment in North Carolina’s juveniles.  However, it is also an investment in itself. In order to receive the aforementioned benefits, both monetary and societal, North Carolina will have to fully fund the JJRA.  This funding will ensure an effective implementation period and will later lead to a variety of benefits for the state and its people.

III.  The Raise the Age Act Will Not Be Fully Effective Without Adequate Funding

The JJRA makes several major changes to North Carolina’s juvenile justice system.  Each requires significant funding to be fully implemented.  Developmentally tailored justice is a layered concept, so it takes proper implementation of each part to make the whole fully functional.[70]  The aim of juvenile justice is rehabilitation, and that cannot be achieved unless a juvenile is taken through the entire juvenile justice system, from petition to post-disposition, in a comprehensive, developmentally appropriate manner.[71]  This view has been supported by a variety of groups, including the NCCALJ that created the original recommendations for creating and implementing the JJRA.[72]

A.    Areas that Require Additional Funding

Because of JJRA implementation, more than 8,000 juveniles ages sixteen and seventeen are now expected to be served under juvenile jurisdiction in 2020.[73]  Each of these juveniles will require contact with a court counselor, and many will continue through the adjudication and disposition processes, requiring the work of judges, prosecutors, and defense counsel.  Some juveniles may even be committed to a YDC and require additional treatment and rehabilitation.  While all areas of the juvenile justice system must be adequately funded for the JJRA to be fully implemented, below are the facets of the justice system most in need of additional staff and monetary resources.

1.     The North Carolina Court System

North Carolina’s court system is involved throughout the entire juvenile justice process.  Even if a case is diverted, it must go through a court counselor first for screening and intake.[74]  Through each step of the process, the juvenile court system requires skilled personnel, advanced database technology, and appropriate transportation to move juveniles through the process in a fair and efficient manner.  Additionally, the cost of merely operating a courthouse has increased since the COVID-19 outbreak.[75]  Therefore, these extra costs place more demands on North Carolina’s court system and make allocated funding even tighter for court personnel. 

Even before the JJRA was implemented, several counties in North Carolina faced staff resource deficits and overbearing workloads.[76]  These staff deficiencies, exacerbated by transportation systems and database technology not intended to handle the demands of raising the age, make these counties ill-equipped to handle JJRA implementation.  Therefore, these counties require full funding from current JJRA appropriations to even begin to handle the 8,000 juveniles expected to come through the system in 2020.  Funding would be allocated towards not only hiring new court staff, but also implementing new technology and transportation changes.[77]  However, allotted appropriations for the 2019-2020 and 2020-2021 fiscal years only begin to address the issue by targeting only the neediest counties.[78]

Between allotted funds for the 2019-2020 and 2020-2021 fiscal years, the North Carolina General Assembly has appropriated over $1.8 million for the creation of seven new deputy clerk positions and seven new district court judge positions.[79]  Even with this substantial investment in North Carolina’s juvenile courts, there will still be deficiencies in several counties’ court systems.  The JJRC recommends additional funding of over $13 million to correct existing deficiencies in the court systems.[80]  This recommended investment is intended to prepare courts for JJRA implementation, and it does not account for any additional funds that might be needed if  the actual number of juveniles entering the system exceeds the anticipated number.

Nevertheless, the General Assembly is able to adequately address one of the court system’s most dire needs in implementing the JJRA – a lack of court counselors.[81]  Court counselors are essential for proper implementation of the JJRA since they manage each case and help determine the best course of action for the rehabilitation of each juvenile.

2.     Prosecutors

With the projected increase of more than 8,000 juveniles entering into the juvenile system in 2020,[82] the number of prosecutors in the juvenile system must also increase.[83]  The influx of juveniles under the JJRA will require the state to create thirty-five new positions and hire new prosecutors in seventeen of North Carolina’s forty-three prosecutorial districts.[84]  Overall, the JJRC recommends creating twenty-five new assistant district attorney positions.[85]  However, even with existing funding measures, this must occur gradually over time.  Even with the current rise in appropriated funds, North Carolina’s district attorney’s offices will remain understaffed until 2024 at the earliest.[86]  With that in mind, it is essential that district attorney’s offices receive their allotted funding amounts to even begin to correct for these assistant district attorney shortages.

3.     Juvenile Indigent Defense System

Juveniles in North Carolina are included in a group of only eleven states that presume juveniles are automatically eligible for a court-appointed attorney based on their status as juveniles.[87]  In fact, North Carolina is on the more progressive end of this spectrum in allowing all juveniles, regardless of parents’ ability to pay, access to a court-appointed attorney.[88]  While this is certainly a benefit[89] for North Carolina’s youth, especially those who could not afford to hire counsel, it is not an all-encompassing solution.

Since all youth in North Carolina are presumed indigent, many rely on North Carolina’s Indigent Defense Services (“IDS”) for counsel.  This, however, creates a series of burdens not only for IDS but for the juveniles being appointed IDS counsel.  As the number of juvenile cases rise in the coming years, IDS will have to incentivize more private attorneys to handle their cases.  Additionally, while juveniles are guaranteed counsel, that does not always mean juveniles will receive “zealous advocates” for their cases.[90]

The North Carolina Office of the Juvenile Defender (“OJD”) is understaffed and underfunded.[91]  One way the North Carolina General Assembly is attempting to remedy this is by creating a new position “to provide training and consulting services to private assigned counsel attorneys in the State assigned to juvenile justice cases.”[92]  While IDS was granted an additional $87,681 of recurring funds in the 2019-2020 fiscal year,[93] this amount hardly covers the requirement  to pay several privately contracted attorneys to handle IDS’s cases at a rate comparable to a North Carolina firm.

4.     Youth Development Centers (“YDCs”)

One of the main differences between the adult and juvenile criminal systems is the presence of YDCs.  These centers are unmatched in their rehabilitative potential for certain juveniles.  Upon being admitted to a YDC, each juvenile undergoes a “screening and assessment of developmental, educational, medical, neurocognitive, mental health, psychosocial and relationship strengths and needs.”[94]  Then, the juvenile receives an individualized service plan to meet his or her needs.[95]  While in the YDC, each juvenile continues his or her education through standard public school courses taught by teachers licensed by the N.C. Department of Public Instruction.[96]  Each juvenile is also assigned a Licensed Mental Health Clinician and receives individual or group psychotherapy on a weekly basis.[97]

Since YDCs provide many rehabilitative services to juveniles as part of a comprehensive plan, they are fairly expensive to operate.[98]  In the 2017-2018 fiscal year, North Carolina spent $26,997,644 on its four YDC facilities.[99]  The state is also planning on opening Rockingham YDC, a sixty-bed facility located in Reidsville, N.C.[100]  While this facility will increase the state’s YDC capacity, it will also increase the amount of money invested in the state’s YDC system.[101]

However, even with a capacity to house 248 juveniles at a time, North Carolina continues to serve more juveniles in its YDCs than it has room for.  In 2018, even before the implementation of the JJRA, North Carolina was serving 361 juveniles among its four facilities.[102]  In 2016 the number of juveniles committed to YDCs decreased by 48 percent,[103] but the majority of the YDC population at the time was age fifteen or sixteen.[104]  With a trend of committing older juveniles to YDCs, the already large YDC population will likely remain consistent and potentially grow with the estimated influx of 8,000 sixteen- and seventeen-year-old offenders.[105]

B.    Potential Solutions to the Funding Challenges

The North Carolina General Assembly has addressed many of the above funding challenges through its 2019-2020 fiscal year appropriations.  However, in some instances, the allotted funding is still not enough.  In order to fully fund the JJRA and address staff and resource deficiencies, North Carolina will have to decrease its reliance on juvenile incarceration, increase its use of diversion plans for minor offenses, and change the organization and payment structure of its indigent defense system.  Changes like these have already worked in other states and they will allow North Carolina to save money while better serving its juvenile population.[106]  Additionally, broad changes involving police divestment could ease these financial burdens in the coming years and allow for additional investment into community programs. 

1.     Reduce Juvenile Incarceration Rates

Decreasing the North Carolina Juvenile Justice system’s reliance on youth incarceration not only brings substantial benefits for the state, but for juveniles as well.  Holding juveniles in detention facilities has been proven to increase criminal behavior in juveniles later in life[107] and now, it also poses serious COVID-19 related health risks.[108]  Therefore, the use of these facilities should be limited to only the most severe cases.

In North Carolina, juveniles are often placed in detention centers for non-violent offenses, such as truancy and low-level property offenses.[109]  Since these juveniles pose a relatively low public safety risk, they would be better served through community based, rehabilitative programs.[110]  Utilizing these programs would not only help meet the needs of the juvenile, but it would also save the state a significant amount of money.[111]

Other states, such as Nebraska, have successfully moved from a reliance on juvenile incarceration and towards the use of rehabilitative community programs.  The Nebraska State Legislature passed a bill that required juveniles to be placed in the “least restrictive situation that their offense would allow.”[112]  For many non-violent offenses this meant keeping juveniles at home and allowing them access to therapy or drug rehabilitation services as “an alternative to incarceration.”[113]  The changes were so successful that across the state, fewer than ten low-risk youth are detained per month.[114]

The North Carolina General Assembly has already paved the way for this investment by passing two Session Laws[115] that allowed $75,000 in additional funding available for community programs in the 2004-2005 fiscal year.  Since then, these programs have proven to be efficient[116] and cost-effective.[117]  Most importantly, they led to noticeable decreases in recidivism rates.[118]

Once more community programs are in place, the state could begin to also use community programs more frequently as an option for disposition, rather than committing juveniles to YDCs.  The use of residential or community programs in place of YDCs for less severe adjudications saves the state $88,880 to $104,069[119] per juvenile, respectively.[120]  Similar to the benefits seen from decreasing juvenile incarceration rates, reducing the use of YDCs for low level offenders would also decrease recidivism and deter juveniles from committing offenses.[121]

2.     Reduce the Number of Juveniles Referred to Juvenile Court

The next step is to reduce the number of juveniles referred to juvenile court for status offenses and eventually, all low-level offenses. 2018 was the lowest year on record for juvenile crime in North Carolina.[122]  A majority of that decrease resulted from a drop in delinquent complaints.[123]  The number of status complaints, however, has remained comparatively stagnant.[124]  In fact, from 2015 to 2017 the number of status complaints actually increased.[125]  North Carolina’s existing juvenile justice methods help reduce the amount of delinquent complaints, but they do not have the same success rate with decreasing status complaints.

Since the current system does not adequately address status offenses, these should be handled outside the system.  The North Carolina court system should begin a policy of considering and exhausting all diversion options for status complaints before filing a petition. Status offenses are the least severe of all juvenile offenses[126], so status offending juveniles can generally be diverted without posing any risk to society.  Today’s mental health screening tools can help identify youth with immediate needs and determine if diversion is appropriate in each case.[127]

Other states have seen success in similar juvenile justice reforms. Connecticut saw an overall decrease in expenditures after implementing its “raise the age” laws along with an “aggressive pretrial diversion program.”[128]  Kansas has reclassified status offenses and now, status based offenders cannot be incarcerated unless a judge finds a compelling reason to do so.[129]  The Kansas state legislature hopes to extend this law so juveniles who have committed status offenses or misdemeanors are also ineligible for YDC commitment.

3.     Change the Organization and Payment Structure of North Carolina’s Indigent Defense Services

Currently, North Carolina’s juvenile defense system is county-based.[130]  Not only does it lack the uniformity of a state-wide system, but it also lacks efficiency.  While there are a variety of options for juvenile defense, most counties only have one or two options available.[131]  Moreover, there are counties that do not have access to an assistant public defender for juvenile cases.[132]  Therefore, most juveniles turn to IDS and its Office of Juvenile Defense for representation.

The county-based structure of IDS contributes to its lack of uniformity and its inefficiency.  First, IDS does not offer the same defense services in every county.[133]  This leads to a difference in representation between counties and an unpredictability of cost in each case.  Ultimately, this system leads to a high turnover of attorneys, causing the state to spend more time and money in training new IDS attorneys.

Additionally, the IDS hourly pay system causes differences in the quality of appointed counsel.  The current low hourly pay grade leads to lower quality representation, an emphasis on quantity of cases rather than quality, and over-complicating cases to bill more hours.[134]  While the optimal solution would be to increase IDS’s budget for attorney compensation, until that can occur, IDS should move from an hourly pay system to a flat fee or contract system.

Flat fee compensation has been proven to reduce administrative costs, allow greater participation from the private bar, and allow greater flexibility to private attorneys who may not want to take on many indigent cases.[135]  Similarly, “carefully planned and tailored contracts” can lead to IDS recruiting qualified attorneys with the proper training and skillset to represent juveniles.[136]  These contracts would also provide workload caps and other limitations to keep attorneys from over-working a case to a level that is outside the paygrade of the contract.

While the solution of restructuring North Carolina’s IDS goes mainly towards improving the quality of representation juveniles receive, it also helps maximize the efficiency and quality of IDS as a whole.  This solution, therefore, helps juveniles while also maximizing the effectiveness of the funds allocated to IDS in fiscal years 2019-2020 and 2020-2021.[137]  While IDS will remain understaffed and underfunded with these allocations, changing the organization and payment structure will allow IDS to be more effective under current funding constraints. 

4.     Embrace an “Invest-Divest” Strategy for Police Reform

Finally, one overarching solution to many of North Carolina’s Juvenile Justice System’s funding concerns is police divestment. Supported by groups such as the Movement for Black Lives and the ACLU, the “invest-divest” strategy for police reform focuses on reallocating funding earmarked for policing and reinvesting it into long-term safety strategies.[138]  In fiscal year 2020, the state of North Carolina appropriated approximately $3 billion to law enforcement activities.[139]  A portion of this large sum could easily be reallocated for community programs and eventually, resources for juvenile court counselors, youth mental health, and education specialists.[140]

A key piece of this divestment also comes from within the juvenile justice system.  As the role of law enforcement changes in America’s criminal justice system, it will change in the juvenile system as well. Funding allocated for policing of juveniles in schools and YDCs can also be reallocated to community programs.  This form of direct reallocation has already proven successful in Kansas through a “lockbox mechanism” used to transfer unused funds directly from YDCs to juvenile community programs.[141]

IV.  Conclusion

Implementing the JJRA creates tremendous benefits for North Carolina.  It keeps our communities safer by decreasing juvenile delinquency rates and recidivism rates.  It also increases the overall wellbeing and safety of juvenile offenders.  Eventually, the JJRA will  save taxpayers money.  However, to see any of these benefits, North Carolina must fully fund the Act.

The reality is that the General Assembly has a finite amount of funding to allocate. Some essential programs, like district attorney’s offices and IDS, will remain understaffed and overburdened, having to do the best they can with the funds they have been allocated.  However, through solutions like decreasing North Carolina’s reliance on juvenile incarceration, increasing the use of diversion plans and community programs, changing the organization and payment structure of IDS, and eventually embracing a divest-invest strategy for policing, North Carolina can reduce burdens on key juvenile justice resources. Over time, the juvenile crime rate will decrease, and these burdens will become lighter.  For now, though, these solutions help maximize North Carolina’s investment in both the JJRA and its future.


*J.D. Candidate 2021, Wake Forest University School of Law; Kinesiology and Spanish, B.S., B.A. 2018, The University of Tennessee, Knoxville. Thank you to the Wake Forest Law Review Board and Staff for all their time and effort, especially during a global pandemic. I would also like to thank Mathew Wright, for his encouragement, as well as my family, Scott, Kristi, and Rhiannon for their unwavering support throughout law school. And finally, a special thank you to the many individuals fighting for juvenile justice and police reform efforts.

      [1].   Jacquelyn Greene, Univ. N.C. Sch. Gov’t, Juvenile Justice Reinvestment Act Implementation Guide 1 (2019).

       [2].   See Anne Blythe, NC Becomes Last State to ‘Raise the Age’ of Teens in Court, News & Observer (June 20, 2017 5:27 PM), https://www.newsobserver.com/news/politics-government/article157219234.html; see also Melissa Boughton, N.C.’s New “Raise the Age” Law Appears to be Off to a Promising Start, N.C. Pol’y Watch (Jan. 16, 2020), http://www.ncpolicywatch.com/2020/01/16/ncs-new-raise-the-age-law-appears-to-be-off-to-a-promising-start/.

      [3].   See Blythe, supra  note 2; see also Boughton, supra note 2; Raise the Age – NC, N.C. Dep’t Pub. Safety, https://www.ncdps.gov/our-organization/juvenile-justice/key-initiatives/raise-age-nc (last visited Aug. 18, 2020).

      [4].   Blythe, supra note 2.

      [5].   Id.

      [6].   Raise the Age – NC, supra note 3.

      [7].   Blythe, supra note 2.

      [8].   2017-57 N.C. Sess. Laws 309.

      [9].   LaToya Powell, Univ. N.C. Sch. Gov’t, 2017 Juvenile Justice Reinvestment Act 1 (2017).

     [10].   The common law default for minimum juvenile court jurisdiction age is seven. See Nat’l Rsch. Council, Reforming Juvenile Justice: A Developmental Approach 52 (Richard J. Bonnie et al. eds., 2013).

     [11].   Lauren Horsch, Raise-the-Age Bill Gains Steam in One of the Last States to Prosecute 16-Year-Olds as Adults, News & Observer (Mar. 8, 2017, 6:20 PM), https://www.newsobserver.com/news/politics-government/state-politics/article137281928.htmlhttps://www.newsobserver.com/news/politics-government/state-politics/article137281928.html.

     [12].   Before JJRA implementation, teens in North Carolina faced much stricter consequences for actions than teens in other states. For example, when comparing North Carolina with Massachusetts, a teen in North Carolina could commit exactly the same crime as a Massachusetts teen his age, but face significantly worse consequences. In Massachusetts, a sixteen-year-old could commit a misdemeanor, or even a non-violent felony, and still enter into the juvenile justice system. The North Carolina teen, however, would automatically enter the adult system and face criminal charges. If the Massachusetts teen was adjudicated delinquent, his record would be sealed, and it would not affect his ability to apply for higher education funding. Unlike the Massachusetts teen, if the North Carolina teen was found guilty, he would not only face a punishment for the charge, but also a criminal record. That record would later limit his choices in life and possibly preclude him from joining the military and applying for funding for higher education.           See id.; Shira Schoenberg, Teen Arrests Drop Steeply in Massachusetts After Criminal Justice Reform, Mass Live (Dec. 31, 2019), https://www.masslive.com/news/2019/12/teen-arrests-drop-steeply-in-massachusetts-after-criminal-justice-reform.html.

     [13].   Those five branches were: (1) Civil Justice, (2) Criminal Investigation and Adjudication, (3) Legal Professionalism, (4) Public Trust and Confidence, and (5) Technology. See N.C. Comm’n Admin. Law & Just., Final Report: Recommendations for Strengthening the Unified Court System of North Carolina 44 (2017),  https://www.nccourts.gov/assets/documents/publications/nccalj_final_report.pdf.

     [14].   Id.

     [15].   New York raised its juvenile cut-off age to sixteen in 2018 and then to seventeen in 2019. See id., app. a, at 7; see also Governor Cuomo Signs Legislation Raising the Age of Criminal Responsibility to 18-Year-Olds in New York, N.Y. Governor’s Press Off. (Apr. 10, 2017) https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-raising-age-criminal-responsibility-18-years-old-new-york.

     [16].   Specifically in 2014, out of 5,689 sixteen- and seventeen-year-olds convicted in North Carolina, only 187 were convicted of violent felonies. Thus, only 3.3 percent of North Carolina’s teens were convicted of violent felonies. That left 16.3 percent of these youth convicted of non-violent felonies and 80.4 percent convicted of misdemeanors. See N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 7.

     [17].   Processing sixteen- and seventeen-year-old juvenile offenders in the juvenile system allows for more supervision and a 7.5 percent decrease in recidivism. Id., app. a, at 8.

     [18].   Stephanie Tabashneck, “Raise the Age” Legislation: Developmentally Tailored Justice,  Crim. Just., Winter 2018, at 13.

     [19].   In fact, in 2009, the Governor’s Crime Commission Juvenile Age Study estimated raising the age to eighteen would result in a net benefit of $7.1 million for the State of North Carolina. See Governor’s Crime Comm’n, Juvenile Age Study: A Study of the Impact of Expanding the Jurisdiction of the Department of Juvenile Justice and Delinquency Prevention 4–6 (2009); see also N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 8–12.

     [20].   Governor’s Crime Comm’n, supra note 19, at 12–13.

     [21].   Horsch, supra note 11.

     [22].   Blythe, supra note 2.

     [23].   A non-violent felony is defined as any felony excluding: Class A through G felonies; felonies that include assault as an essential element of the offense; felonies that require registration pursuant to Article 27A of Chapter 14 of the General Statutes; certain sex-related or stalking offenses; certain offenses involving methamphetamines, heroin, or cocaine; certain offenses involving hate crimes; and certain offenses involving commercial vehicles and impaired driving. See N.C. Gen. Stat. §15A-145.4 (2019); N.C. Sent’g & Pol’y Comm’n, Classification of Sample Offenses (2017), https://www.nccourts.gov/assets/documents/publications/Sample-list-2017.pdf (listing sample offenses within each class).

     [24].   Before the transfer, the juvenile must either receive (1) notice and a finding by the court that a bill of indictment has been returned that charges the commission of an offense that would be a class A-G felony if it had been committed by an adult, or (2) notice, hearing, and a finding of probable cause that the juvenile committed an act that would be a class A-G felony if committed by an adult. 2017-57 N.C. Sess. Laws 311.

     [25].   If the judge decides to transfer the case, the juvenile still receives notice, he is still given a hearing, and the court must find probable cause before transfer. Additionally, prosecutors and juvenile’s attorney can each motion to transfer a juvenile’s case to superior court. If a motion is denied or no motion is made, the case remains in juvenile court. Id.

     [26].   Although sixteen- and seventeen-year-olds who allegedly commit class A-G felonies are eventually tried in superior court, their cases must still originate in juvenile court and later be transferred to superior court. Additionally, this jurisdiction excludes motor vehicle law violations under Chapter 20 of the North Carolina General Statutes. Greene, supra note 1, at 6; 2017-57 N.C. Sess. Laws 309–311.

     [27].   N.C. Gen. Stat. § 7B-1601(b1); Greene, supra note 1, at 11.

     [28].   Greene, supra note 1, at 11.

     [29].   The extension of the timeline for disposition is crucial because the consequences of the juvenile disposition are far less severe than a guilty verdict in superior court. In juvenile court, a delinquency adjudication does not rise to the level of a conviction and it is not public record. It also does not cause the juvenile to forfeit any citizenship rights or future citizenship rights to be gained at age eighteen, such as the right to vote. See N.C. Jud. Branch, Juvenile Delinquency: General Information, https://www.nccourts.gov/help-topics/family-and-children/juvenile-delinquency (last visited Aug. 18, 2020) (“In order to protect the privacy of children who are involved in these proceedings, juvenile court records may be accessed only by authorized persons, such as the juvenile, the juvenile’s parent or guardian, the juvenile’s attorney, prosecutors, juvenile court counselors, and some probation officers. Public disclosure of juvenile records is prohibited without a court order. . . . An adjudication of delinquency in juvenile court is not a conviction of a crime nor does it cause the juvenile to forfeit any citizenship rights.”).

     [30].   Because of this, an eighteen- or nineteen-year-old could have simultaneous active cases in juvenile and superior court. N.C. Gen. Stat. § 7B-1601(b1) (2019); Greene supra note 1, at 11–12.

     [31].   These offenses include certain offenses associated with wearing of masks and hoods; solicitation and intimidation, punishment, or retaliation for gang withdrawal; larceny by servants and other employees; embezzlement of property received by virtue of office or employment; incest; taking indecent liberties with children; and solicitation of child by computer or certain other electronic devises to commit an unlawful sex act. N.C. Gen. Stat. § 7B-1501(7)b (2019); Greene, supra note 1, at 81–82.

     [32].   Greene, supra note 1, at 33.

     [33].   Id.

      [34].  Id. at  29.

     [35].   Id.

      [36].  Id. at 30.

     [37].   The juvenile system requires the juvenile’s parent or legal guardian to be present at all court dates and meetings associated with the case. In some instances, a parent or guardian can even be found in contempt of court for failing to appear at their child’s court date. Therefore, expanding juvenile jurisdiction also expands the amount of parental involvement in the system. Jason Langberg & Patricia Robinson, A Guide to Juvenile Court for Youth and Parents in North Carolina 9 (Youth Justice N.C., 2014), https://www.dconc.gov/home/showdocument?id=11955.

     [38].   This section requires the state to prosecute a juvenile as an adult for any criminal offense if the juvenile has previously been transferred to and convicted in superior court or has previously been convicted in either district or superior court for a felony or a misdemeanor. This includes a violation of the motor vehicle laws under State law. Greene, supra note 1, at 8–9, 29; see also 2017-57 N.C. Sess. Laws 310.

     [39].   These acts are now covered under juvenile jurisdiction. Greene, supra note 1, at 6.

     [40].   Id. at 1.

     [41].   Additionally, since the JJRA excludes all motor vehicle offenses from juvenile court jurisdiction, any juvenile who commits a felony motor vehicle offense or a misdemeanor motor vehicle offense involving impaired driving will continue to be included in the grouping of “Once an Adult, Always an Adult” juveniles. Id. at 8–9.

     [42].   2017-57 N.C. Sess. Laws 323.

     [43].   The session laws provide a complete list of all board membership positions. Id. at 323–24. See also Juvenile Jurisdiction Advisory Committee, N.C. Dep’t Pub. Safety, https://www.ncdps.gov/our-organization/juvenile-justice/key-initiatives/raise-age-nc/juvenile-jurisdiction-advisory-committee (last visited Aug. 18, 2020) (providing a list of current board members).

     [44].   2017-57 N.C. Sess. Laws 323–24.

     [45].   The committee also considered how those costs would change if implementation was staggered based on age, but ultimately, that method of implementation was not used. Id. at 324–25.

     [46].   Because this committee plays such an influential role in the implementation of the JJRA, it will continue to submit updated progress reports every year on January 15 until the year 2023. Id.

     [47].   Juv. Jurisdiction Advisory Comm., Juvenile Age Interim Report 10 (2020).

     [48].   Id.

     [49].   Id.

     [50].   As of January 2020, it has opened forty-three. Id.

     [51].   Id.

     [52].   Id.

     [53].   Id. at 15.

     [54].   Id. at 10.

     [55].   Id. at 11.

     [56].   Id. at 18–19.

     [57].   The use of data and tracking systems is also a useful tool for tracking juvenile offenders who have been placed in home confinement due to COVID-19 safety concerns. Data/Statistics/Reports, N.C. Dep’t Pub. Safety https://www.ncdps.gov/juvenile-justice/data-statistics-reports (last visited Aug. 18, 2020) (“[T]he network is a web-based system that allows staff at various points in the state’s juvenile justice system to track the progress and placement of youth being served by various programs and facilities.”).

     [58].   Screening and Assessment, N.C. Dep’t Pub. Safety https://www.ncdps.gov/juvenile-justice/juvenile-court-services/reclaiming-futures-nc/resources-for-local-sites/screening-and-assessment (last visited Aug. 18, 2020).

     [59].   Juv. Jurisdiction Advisory Comm., supra note 47, at 19.

     [60].   Id.

     [61].   See generally Tabashneck, supra note 18, at 13 (explaining a variety of reasons why the juvenile justice system processes juveniles in a developmentally appropriate manner).

     [62].   N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 8.

     [63].   Id., app. a, at 4–5.

     [64].   Id., app. a, at 10–11.

     [65].   Tabashneck, supra note 18, at 13.

     [66].   Id. at 13, 16.

     [67].   Juveniles housed in adult detention facilities require housing in supermax facilities that cost about $100,000 per year. See N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 15.

     [68].   See id., app. a, at 11 (“Much of the estimated cost savings would result from reduced recidivism, which ‘eliminates future costs associated with youth “graduating” to the adult criminal system, and increased lifetime earnings for youth who will not have the burden of a criminal record.’”).

     [69].   A 2009 study projected net benefit of $7.1 million dollars. Later, a 2011 study projected benefits of $52.3 million. Therefore, savings could be projected to be $7.1 million or more. See id.

     [70].   See Tabashneck, supra note 18, at 13, 18 (discussing the various parts that contribute to a functional juvenile system).

     [71].   Id. at 13.

     [72].   N.C. Comm’n Admin. Law & Just., supra note 13, app. d, at 43–45.

     [73].   Id., app. a., at 11.

     [74].   Langberg & Robinson, supra note 37, at 1, 7.

     [75].   John Hinton, Forsyth County Hall of Justice Will Undergo a Deep Cleaning This Weekend, a County Official Says, Winston-Salem J. (Apr. 24, 2020), https://journalnow.com/news/local/forsyth-county-hall-of-justice-will-undergo-a-deep-cleaning-this-weekend-a-county-official/article_98c4f954-6e60-5522-8eb4-958f75ec2e73.html (noting that it costs around $9,000 to deep clean a courthouse).

     [76].   Juv. Jurisdiction Advisory Comm., supra note 47, at 7.

     [77].   See supra Subpart II.C (providing more information on these technology and transportation changes).

     [78].               See Act of Oct. 14, 2019, § 3(a), 2019-229 N.C. Sess. Laws 7 (noting seven deputy clerk positions will be created and they will specifically be assigned to Alamance, Burke, Davidson, Johnston, McDowell, Randolph, and Yadkin counties).

     [79].   This figure comes from adding the 2019-2020 and 2020-2021 recurring and nonrecurring funds. Id.

     [80].   Juv. Jurisdiction Advisory Comm., supra note 47, at 1.

     [81].   In the most recent appropriations bill, the General Assembly allotted over $13 million for the creation of ninety-seven court counselor positions throughout the 2019-2020 fiscal year. 2019-229 N.C. Sess. Laws 9.

     [82].   Juv. Jurisdiction Advisory Comm., supra note 47, at 10–11.

     [83].   Since the same number of prosecutors are still needed elsewhere in the court system, district attorney’s offices cannot simply move prosecutors from one area prosecution over to the juvenile courts system. Therefore, new positions must be created to handle the increased juvenile caseload.

     [84].   Juv. Jurisdiction Advisory Comm., supra note 47, at 8–9.

     [85].   These new positions will be gradually created as follows: nine in 2019, seven in 2020, eight in 2021, and one in 2023. Id. at 7.

     [86].   Based on current projection data, the JJRC recommends creating thirty-five new assistant district attorney positions. However, the North Carolina General Assembly only approved funding measures to create twenty-five new positions between 2019 and 2023. Therefore, there will still be a need for ten additional assistant district attorneys even after the year 2023. Id. at 7–9.

     [87].   The other ten states are: Indiana, Louisiana, New York, Pennsylvania, Delaware, Montana, Massachusetts, Wisconsin, Vermont, and Washington. Nat’l  Juv.  Def.  Ctr., Access  Denied: A National  Snapshot of  States’ Failure to  Protect  Children’s Right to  Counsel 10 (2017).

     [88].   Compare N.C. Gen. Stat. § 7B-2000(b) (2019) (“All juveniles shall be conclusively presumed to be indigent, and it shall not be necessary for the court to receive from any juvenile an affidavit of indigency.”), with Ind. Code. § 33-40-3-6(a) (2017) (providing that a guardian may be charged for the representation if it is later determined the guardian is financially able).

     [89].   One major benefit of this standard is that it allows a juvenile to receive appointed counsel without considering the financial status of the juvenile’s parent or guardian. In some instances, a juvenile’s parent or guardian could finance the juvenile’s counsel, but refuses to do so. Juveniles in North Carolina, however, avoid this scenario through the juvenile indigency standard. Therefore, while reliance on appointed counsel poses its own unique set of problems, North Carolina’s juvenile indigency standard still ensures every juvenile can exercise the right to counsel.

     [90].   With only three attorneys on the Office of Juvenile Defender staff, it is impossible for OJD attorneys to regularly observe and assess appointed counsel, or to survey juveniles and parents to determine their satisfaction with their appointed counsel.

     [91].   N.C. Comm’n Indigent Def. Servs., Fiscal Year 2018 Annual Report 7 (2019).

     [92].   This position went into effect on October 1, 2019. 2019-229 N.C. Sess. Laws 8.

     [93].   Id.

     [94].   See Youth Development Centers, N.C. Dep’t Pub. Safety https://www.ncdps.gov/Juvenile-Justice/Juvenile-Facility-Operations/Youth-Development-Centers (last visited Aug. 18, 2020).

     [95].   These individualized plans outline commitment services, including plans for education, mental health services, medical services and treatment programming. Id.

     [96].   Id.

     [97].   Id.

     [98].   In the 2017-2018 fiscal year, North Carolina’s four YDCs cost $26,997,664 to operate. Memorandum from Erik A. Hooks, Sec’y, and Reuben F. Young, Interim Chief Deputy Sec’y, N.C. Dep’t Pub. Safety, to Chairs of the Joint Legis. Oversight Comm. on Just. & Pub. Safety, Chairs of the Senate Appropriation Subcomm. on Just. & Pub. Safety, and Chairs of the House Appropriation Subcomm. on Just. & Pub. Safety, Fiscal Rsch. Div. (Oct. 1, 2018), https://files.nc.gov/ncdps/Annual%20Report%20on%20Youth%20Development%20Centers-%20October%202018_0.pdf [hereinafter Memorandum from Hooks & Reuben].

     [99].   These facilities were: Chatham, a thirty-two-bed facility located in Siler City, N.C.; Edgecombe, a forty-four-bed facility located in Rocky Mount, N.C.; Lenoir, a forty-four-bed facility located in Kinston, N.C.; and Jackson, a ninety-six-bed facility located in Concord, N.C. See id.

   [100].   See Youth Development Centers, supra note 94; N.C. Comm’n Admin Law & Just., supra note 13, app. a., at 18.

   [101].   This investment could also pose serious monetary consequences as the COVID-19 pandemic continues. Currently, the state is committing fewer juveniles to YDCs, so it is possible that North Carolina may not reach full YDC capacity for years to come, if ever.

   [102].   Memorandum from Hooks & Reuben, supra note 98.

   [103].   Div. of Adult Corr. & Juv. Just., N.C. Dep’t Pub. Safety, Juvenile Justice 2016 Annual Report 10 (2016) (identifying a 48 percent decrease from 2010 to 2016). That decrease continued into 2018 with a 62 percent decrease from 2010-2018. Div. Adult Corr. & Juv. Just., N.C. Dep’t Pub. Safety, Juvenile Justice 2018 Annual Report 16 (2018).

   [104].   Juvenile Justice 2016 Annual Report, supra note 103, at 28.

   [105].   This projection reflects the rate of YDC use before the COVID-19 pandemic. While the state is preparing to return to normal operation of its YDCs, it is entirely possible that more counties will continue to move away from YDC use and the number of juveniles committed to a YDC will not rise. Juv. Jurisdiction Advisory Comm., supra note 47, at 10.

    [106].   Ilene Grossman, New Approach to Juvenile Justice: In States Such as South Dakota, Nebraska, and Kansas, Reforms Reduce Reliance on Incarceration, Invest in Proven Intentions, Council of State Gov’ts (May 2015), https://www.csgmidwest.org/policyresearch/0515-juvenile-justice.aspx

   [107].   Off. Juv. Just. & Delinq. Prevention, U.S. Dep’t of Just., Diversion from Formal Juvenile Court Processing 5–7 (2017).

   [108].   These risks are both physical and mental since confined youth are at a greater risk of contracting COVID-19 and new safety measures have decreased the number of visitors and home visits allotted to each juvenile. See All Juveniles in NC Secure Custody Facilities Tested for COVID-19, No Positive Cases Reported, WBTV.Com (July 2, 2020, 4:13 PM), https://www.wbtv.com/2020/07/02/all-juveniles-nc-secure-custody-facilities-tested-covid-no-positive-cases/.

   [109].   Langberg & Robinson, supra note 37 at 7 (“[A] juvenile may be taken into temporary custody – i.e. placed in a detention center – if: . . .

a law enforcement officer or court counselor has reasonable grounds to believe the juvenile is an undisciplined juvenile – i.e., is unlawfully absent from school; regularly disobedient to and beyond the disciplinary control of his/her parent; regularly found in places where it is unlawful for a juvenile to be; or has run away from home for a period of more than 24 hours.”).

    [110].   N.C. Div. Juv. Just., Juvenile Diversion in North Carolina 2 (2013).

   [111].   The annual cost per juvenile for a detention center bed is $57,593. Community programs, however, pose a much lower cost solution at $857, per juvenile, per year. N.C. Comm’n Admin Law & Just., supra note 13, app. a., at 13.

   [112].   Grossman, supra note 106.

   [113].   Id.

   [114].   See Corey R. Steele & Ellen Fabian Brokofsky, Neb. Jud. Branch, Probation Juvenile Justice Reform Efforts March 2019 5 (2019).

   [115].   See Current Operations and Capital Improvements Appropriations Act of 2004, 2004-124 N.C. Sess. Laws 1, 132; Current Operations and Capital Improvements Appropriations Act of 2005, 2005-276 N.C. Sess. Laws 1, 296.

   [116].   In the 2017-2018 fiscal year, 157 juveniles were served by community programs, ninety-nine juveniles exited the program, and seventy successfully completed the program. N.C. Dep’t Pub. Safety, Alternatives to Commitment Programs Annual Evaluation Report 1 (2019).

    [117].   Id. at 2 (“Data analysis from the inception of these services in FY 2004-2005 confirms that that intensive, evidence-based, research-supported services provided to juveniles and their families continue to be effective and cost-efficient.”).

   [118].   Id. at 9.

    [119].   See id.

    [120].   Id.

   [121].   Off. Juv. Just. & Delinq. Prevention, supra note 107, at 1.

   [122].   Juvenile Justice 2018 Annual Report, supra note 103, at 10.

    [123].   Id.

   [124].   From 2013 to 2018, the amount of delinquent complaints decreased by almost 27 percent while the amount of status complaints only decreased by approximately 10 percent. Id. (These percentages were calculated as the percent difference from 2013 to 2018 provided in the annual report).

   [125].   Id.

   [126].   Status offenses are labeled as a class zero offense, indicating they are so lacking in severity that they are not even numbered. See N.C. Div. of Juv. Just., supra note 110, at 7, Table 2.

   [127].   Elizabeth Seigle et al., Council of State Gov’ts, Core Principles for Reducing Recidivism and Improving Other Outcomes for Youth in the Juvenile Justice System 48 (2014).

   [128].   Tabashneck, supra note 18, at 17.

   [129].   Grossman, supra note 106.

   [130].   Langberg & Robinson, supra note 37, at 17–18.

   [131].   As of August 2014, thirty North Carolina counties offered IDS funded “privately assigned counsel” or “contract attorney” as the only option for juvenile defense representation. Id.

   [132].   Id.

   [133].   Some counties have contract attorneys while others have a variety of privately assigned counsel that are paid through IDS. Id.

   [134].   Id. at 9.

   [135].   N.C. Comm’n Admin. Law & Just., supra note 13, app. d, at 42.

   [136].   Id., app. d, at 39-40.

   [137].   For reference, the FY 2019-2020 IDS appropriations were $87,681 in recurring funds, and the FY 2020-2021 appropriations were $109,131. See 2019-229 N.C. Sess. Laws 8.

   [138].   The first point under the Movement for Black Lives’ “Invest-Divest” platform calls for “A reallocation of funds at the federal, state and local level from policing and incarceration (JAG, COPS, VOCA) to long-term safety strategies such as education, local restorative justice services, and employment programs.” Community programs aimed at preventing juvenile crime and rehabilitating juvenile offenders can easily fall under these listed categories.

 Invest-Divest, Movement For Black Lives, https://m4bl.org/policy-platforms/invest-divest/ (last visited Aug. 18, 2020);

 Anthony D. Romero, Reimagining the Role of Police, ACLU (June 5, 2020), https://www.aclu.org/news/criminal-law-reform/reimagining-the-role-of-police/.

   [139].   This funding only includes state allocations and does not encompass the varying levels of local city funding allocated to police. OpenBudget, NC.Gov, https://www.nc.gov/government/open-budget (last visited Aug. 18, 2020).

   [140].   In North Carolina, the city of Winston-Salem is already considering moving $1 million from its anticipated $79 million policing budge to pay for “anti-poverty efforts.” These efforts include a proposed $160,000 towards a summer youth employment program, with a focus of involving juveniles in the community and dissuading them from dangerous or criminal activities. Wesley Young, City Mulls Moving $1M from Police to Anti-Poverty Efforts, Winston-Salem J. (June 8, 2020), https://journalnow.com/news/local/city-mulls-moving-1m-from-police-to-anti-poverty-efforts/article_ba93f491-d8f5-56a4-a860-1a48bd12ec73.html. While this funding is merely a proposal, it may soon gain support as pushes for police divestment take hold in other parts of the country.

   [141].   In 2016 Kansas approved measures to limit the number of juveniles sent to YDCs and the amount of time they spent in those facilities. In that same year, the state implemented its “lockbox mechanism.” The program has worked so well that the state has continuously used it since 2016. See discussion supra Subpart III.B.2. See also  Samantha Harvell et al., Urb. Inst., Promoting a New Direction for Youth Justice: Strategies to Fund a Community-Based Continuum of Care and Opportunity 14 (2019).

Photo by Emiliano Bar on Unsplash

By Amanda Manzano

           The rapid spread of COVID-19 has disrupted business as usual across the globe and created a “new normal” for human social behavior; a normal that U.S. prisons and jails as we know them do not have the luxury, or ability, to implement. Physical distancing in public, self-isolation, and the use of face masks have all cemented themselves as routine practices in daily American life per CDC guidelines issued in the virus’s wake.[1] The CDC advises that avoiding exposure to the illness is the single best measure to prevent infection, and accordingly, recommends a minimum of six feet between person to person.[2] The Federal Bureau of Prisons (the “BOP”) has limited visitation, transfers, and staff training to limit the spread as much as possible, but what is happening within prison walls to manage internal spread and keep inmates safe?[3] The reality is, the infrastructure of American jails and prisons is such that managing disease is difficult during ordinary times, let alone in a pandemic of this magnitude, and the virus is taking its toll behind bars.

            The BOP notes modified operations in light of COVID-19 to maximize social distancing.[4] These efforts include “consideration of staggered meal times and staggered recreation times . . . to limit congregate gatherings.”[5] A cursory glance at infections throughout the BOP’s 122 facilities demonstrates this response is failing.[6] As of April 23, 620 federal inmates and 357 BOP staff have tested positive for COVID-19.[7] Twenty-four inmates have died.[8] Reports from state prisons are even more grim. The Marion Correctional Institution in Ohio is home to one of the most rampant outbreaks in the country.[9] There, 73 percent of inmates have tested positive for the virus.[10] The Ohio Department of Rehabilitation and Correction reports 3,816 inmates and 346 staff have tested positive in its twenty-eight facilities.[11] At Rikers Island, home to New York City’s largest jail complex, upwards of 1,000 inmates have contracted the virus.[12]

            Pandemic aside, the CDC acknowledges that health problems are more apparent in jails and prisons than in free communities.[13] The close proximity among inmates and staff, poor circulation, and limited sanitization resources create a breeding ground for contagious disease, and our ability to respond within the current framework is limited.[14] As it stands, the United States has nearly 2.3 million individuals in our jails, prisons, and juvenile correctional facilities.[15] By the numbers, following social distancing guidelines within these institutions would be impossible for the 10.6 million people going into jail each year and additional 600,000 checking into prisons.[16] The BOP’s modifications of staggered meal and recreation times cannot overcome crowded cells and intake rooms to prevent the spread of a virus of this contagion.

            For the time being, the best measure of precaution for the safety of inmates, staff, and the general public is to reduce jail and prison populations as much as possible. U.S. Attorney General William Barr released a memo on April 6 that addresses the heart of this remedy and contentious issue generally: pretrial detention.[17] The purpose of pretrial detention is to assure (a) the appearance of the defendant at trial and (b) the safety of others.[18] The Attorney General acknowledges the risk that every new intake poses to our jails and prisons and recommends an analysis weighing each defendant’s individual risk of flight and threat to the community against the benefits of preventing spread of COVID-19 in these vulnerable institutions.[19] Some cities have halted arrests and prosecutions for low level offenses to help control the flow of inmates.[20] Some have even begun to release low-level offenders from their sentences to clear even more space.[21] Additionally, some argue the elimination of cash bail would avoid undue risk to those who have not been convicted of a crime and free precious space in our jails.[22] A defendant’s inability to post bail during a pandemic broadens the threat from a person and a community to our entire society as each jail and prison becomes a hot spot for COVID-19.

            The infrastructure of our prison complexes and the ethics of incarceration in the United States present challenges every day. COVID-19 highlights some of our shortcomings in the most dramatic of fashions, demonstrating how the risks of crowded and unsanitary facilities extend far beyond those walls. These institutions achieve segregation but cannot, in even the best of circumstances, entirely insulate themselves from the greater public. Providing inmates and corrections staff with subpar facilities and operations will reflect on communities accordingly, and the spread of COVID-19 has shown exactly that.


[1] Coronavirus Disease 2019, CDC (Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.

[2] Id.

[3] BOP Implementing Modified Operations, Fed. Bureau of Prisons,  https://www.bop.gov/coronavirus/covid19_status.jsp (last visited Apr. 24, 2020).

[4] Id.

[5] Id.

[6] About Our Facilities, Fed. Bureau of Prisons,  https://www.bop.gov/about/facilities/federal_prisons.jsp (last visited Apr. 24, 2020).

[7] COVID-19 Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Apr. 24, 2020).

[8] Id.

[9] Bill Chappell, 73% of Inmates at an Ohio Prison Test Positive for Coronavirus, NPR (Apr. 20, 2020, 3:58 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/04/20/838943211/73-of-inmates-at-an-ohio-prison-test-positive-for-coronavirus.

[10] Id.

[11] COVID-19 Inmate Testing, Ohio Department of Rehabilitation and Correction (Apr. 23, 2020), https://coronavirus.ohio.gov/static/DRCCOVID-19Information.pdf.

[12] Deanna Paul & Ben Chapman, Rikers Island Guards Are Dying in One of the Worst Coronavirus Outbreaks, Wall St. J. (Apr. 22, 2020, 8:19 AM) https://www.wsj.com/articles/rikers-island-jail-guards-are-dying-in-one-of-the-worst-coronavirus-outbreaks-11587547801.

[13] Correctional Health: Behind the Wall, CDC, https://www.cdc.gov/correctionalhealth/default.htm (last visited Apr. 24, 2020).

[14] Stir Crazy – Prisons Worldwide Risk Becoming Incubators of COVID-19, The Economist (Apr. 20, 2020), https://www.economist.com/international/2020/04/20/prisons-worldwide-risk-becoming-incubators-of-covid-19 [hereinafter Stir Crazy]  

[15] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html.

[16] See Id (discussing current incarceration rates and annual trends in new incarcerations). See also Stir Crazy, supra note 14 (analyzing the role of prison population in increasing risk of COVID-19 spread amongst the incarcerated).

[17] Memorandum from the Office of the Attorney General for All Heads of Department Components and All United States Attorneys (Apr. 6, 2020), https://www.justice.gov/file/1266901/download [hereinafter Attorney General’s Memorandum].  

[18] 18 U.S.C. § 3142(e)(1) (2018).

[19] Attorney General’s Memorandum, supra note 17.

[20] Chris W. Surprenant, COVID-19 and Pretrial Detention, Mercatus Ctr. (Mar. 30, 2020), https://www.mercatus.org/publications/covid-19-policy-brief-series/covid-19-and-pretrial-detention.

[21] Id.

[22] The Bail Project Urges Jail Releases Amid Coronavirus Spread, The Bail Project, https://bailproject.org/covid-19/ (last visited Apr. 24, 2020).

By Nicole Tronolone

While for many February 29 is a normal day—simply a quirk of our system of leap-years—for lawyers and “Leapers” alike it presents a host of complexities and anomalies.  The variance between an astronomical year and the calendar year has plagued leaders and lawyers for millennia.[1]  Dating back to 46 B.C., the lengthy history of Leap Year and the corresponding uncertainty in date and measurements of time have created a multitude of problems including uncertainty in dates of birth, sentencing requirements, contractual obligations, and filing dates.[2]  Despite its calendrical predictability, Leap Day continues to serve as a basis for litigation, providing an intriguing, if not confusing, discussion of mankind’s ability to correctly, and continuously, measure time.[3]

In contrast to the 365-day calendar taught in primary schools, the Earth’s orbit around the sun takes 365.2422 days to complete.[4]  Because this is not an even number, the length of Earth’s orbit results in a “drift” of calendar years, with the date losing sync with holidays and seasons.  Efforts to address this problem through the use of an abbreviated calendar year date back to the ancient Sumerian calendar that divided the year into twelve equal months of thirty days.[5]  Ancient Egyptians modified this calendar, tacking on five additional days of festivals to the end of the year to ensure it matched the astronomical calendar.[6]  Prior to the reign of Julius Caesar, Romans observed a 355-day year; this approach, however, had caused the seasons to drift by about three months by the time Caesar ascended to power.[7]  In response, Caesar implemented the Julian calendar.  In 46 B.C. he decreed a single 445-day long year, appropriately called the “Year of Confusion,” and mandated all following years to be 365.25 days long with an additional day observed every four years.[8]  Although this solution greatly alleviated the problem, the discrepancy between the calendar and astronomical year persisted, with the astronomical year remaining eleven minutes longer than the calendar.[9]  This variation increased over time, resulting in a divergence of an entire day between the calendars every 128 years.[10]

By the 16th century, the accumulation of these extra days had caused the Catholic holidays to shift by ten days, with Easter losing its proximity to the Jewish Passover.[11]  In the papal bull Inter gravissimus, issued on February 24, 1582, Pope Gregory XIII implemented the Gregorian Calendar to resolve the situation.  Under the decree, October of 1582 lost ten days, as October 4, 1582 was directly followed by October 15, 1582.[12]  The Gregorian Calendar kept the 365 day-year used in the Julian calendar but modified the calculation of Leap Years.  Today, the current calculation of Leap Days and Years follows the Gregorian Calendar.  Every year divisible by four is a leap year, except for years divisible by 100.[13]  However, years divisible by 400 are leap years.[14]  The Gregorian calendar results in an average calendar year length of 365.2425 days, only twenty-six seconds longer than an astronomical year.[15]  This minimal divergence means that it will take over 3,300 years before the Gregorian calendar deviates a single day from the seasonal cycle.[16]

The Gregorian calendar was quickly adopted by Roman-Catholic countries, while Protestant states initially rejected the change.[17]  Great Britain and its colonies, including what is now the United States, did not adopt the Gregorian Calendar until 1752, instead relying on the Julian calendar.[18]  Once Great Britain adopted the Gregorian calendar, an eleven day discrepancy remained between the two calendar system.[19]  To correct this difference Parliament accelerated the calendar “overnight” so that September 2, 1752 was immediately followed by September 14, 1752.[20]  The 200 year period of divergence from 1582 to 1752, however, created long-lasting discrepancies in interstate communication.  For example, correspondence between Britain and France anytime between 1582 to 1752 written on the same day would actually carry a date discrepancy of between ten to eleven days.[21]  Perhaps one of the mostly widely known consequences of this overnight jump is the celebration of George Washington’s birthday.  Although Washington’s birthday was initially reported as February 11, because he was born prior to 1752 the eleven-day skip imposed in 1752 changed his birthday to February 22.[22]

Under the Gregorian calendar the probability of being born on February 29, Leap Day, is one in 1,461.[23]  For these “Leapers” information regarding their date of birth can become a challenging exercise in patience and ingenuity.  Hospitals report mothers scheduling caesarean sections and requesting to be induced either before or after Leap Day as a result of concerns over the complexities of celebrating Leap Day birthdays with small children.[24]  Doctors have even offered to change the birth certificates of babies born on Leap Year either back dating to February 28 or forward dating to March 1, a practice that is not entirely legal.[25]

The issues surrounding date of birth information are easily overlooked by those with birthdays that occur every year.  Leapers, however, often face business and organizations registrations that do not list their birthday as an option.  Even more extreme, previous healthcare IT systems have rejected February 29 as a valid date of birth.[26]  The nuisances faced by those with Leap Day birthdays include challenges regarding the effectiveness of a driver’s license that expires on February 29 or a life insurance policy that is calculated based on a birthday rather than the actual number of years lived.[27]  To address this ambiguity, most states have enacted statutes that explicitly define which date is to be used for age purposes, including the right to vote, purchase alcohol, and receive a driver’s license.  In states that exclude the day of birth from such calculations, Leapers are deemed to be a year older on March 1, whereas in states that include the day of birth, a Leaper’s legal date of birth is February 28.[28]

The confusion created by Leap Day extends far beyond birthdays, with the date a continuous source of litigation.  For example, Leap Years have the potential to create additional paydays if a company’s payroll is weekly or biweekly.  As a result, salaried employees who are paid on these schedules may experience one more payday in Leap Years than in others.[29]  Leap Day can also complicate the determination of timely filings and statute of limitations.  Federal Rule of Civil Procedure 6(a) adopts the “anniversary method,” under which the leap day is ignored, and the final day to file is the anniversary of the event that starts the clock.[30]  Interest calculations have also been challenged, with arguments premised on the notion that interest rates based on a 360-day year, a standard bank year, leave borrowers with higher effective interest rates in Leap years.[31]

More recently, Leap Day litigation has focused on the implications of a 366-day year on sentencing provisions.  In Habibi v. Holder,[32] the 9th Circuit addressed whether a prison term served over a Leap Year “qualifies as a ‘term of imprisonment [of] at least one year.’”[33]  Habibi, a lawful permanent resident, was convicted of a Battery of a Current or Former Significant Other in November 1999 and received a 365-day sentence that was to be served over the year 2000, a leap year.[34]  8 U.S.C. § 1101(a)(43)(F) provides that a lawful permanent resident who commits an “aggravated felony” is ineligible to apply for cancellation of removal.[35]  As a result, the Department of Homeland security served him with a Notice to Appear, under the argument that his conviction and sentence, “made him removeable under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien convicted of a crime of violence.”[36] An immigration judge denied his request for cancellation of removal holding his conviction qualified as an “aggravated felony” under § 1101(a)(43)(F).  The Immigration Judge rejected Habibi’s argument that his 365-day sentence, served during a 366-day leap year, did not qualify as an aggravated felony”[37] because “aggravated felony” is defined as a “crime of violence . . . for which the term of imprisonment [is] at least one year.”[38]  After analyzing the complexities of calculating Leap Years, the 9th Circuit held, “In the context of § 1101(a)(43), the BIA [Board of Immigration Appeals] correctly concluded that the phrase “‘term of imprisonment [of] at least one year’ means a sentence of at least 365 days, regardless of whether any part of the sentence was served during a leap year.”[39]  The court reasoned that adopting Habibi’s argument that a “one year” sentence during a Leap Year should require 366 days would “lead to unjust and absurd results.”[40]

Although many will regard February 29, 2020 as just another day, for some, the Leap Day presents unique complexities.  438 years after Pope Gregory XIII’s implementation of the Gregorian calendar, the variance between the astronomical and calendar year continues to generate uncertainty and legal challenges.  2020, a Leap Year, is unlikely to be an exception, witnessing a host of new and creative arguments regarding the unexpected implications of Leap Day. 


[1] Leap Year: 10 Things About 29 February, BBC (Mar. 1, 2012), https://www.bbc.com/news/magazine-17203353.

[2] See, e.g., State v. Mason, 66 N.C. 636, 637 (1872); Habibi v. Holder, 673 F.3d 1082, 1084 (9th Cir. 2011); Kreisler & Kreisler, LLC v. Nat’l. City Bank, 657 F.3d 729, 732–33 (8th Cir. 2001); United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003).

[3] See, e.g., Habibi, 673 F.3d at 1084 (“How many days are in a year?  The answer is more complicated than it may first appear. . . . Despite its precision, the astronomical definition of a year does not help us answer the question of how long ‘one year’ is for purposes of 8 U.S.C. § 1101(a)(43)(F).”).

[4] Leap Year: 10 Things About 29 February, supra note 1.

[5] See Brian Handwerk, The Surprising History Behind Leap Year, Nat’l Geographic (Feb. 26, 2016), https://www.nationalgeographic.com/news/2016/02/160226-leap-year-science-time-world-cultures-february/#close.

[6] See id.

[7] Leap Year: 10 Things About 29 February, supra note 1; see also Handwerk, supra note 5.

[8] Handwerk, supra note 5.

[9] Id.

[10] See id.

[11] See id.; see also L.E. Doggett, Calendars, NASA: Goddard Space Cent. (last visited Feb. 11, 2020), https://eclipse.gsfc.nasa.gov/SEhelp/calendars.html#Greg.

[12] See Doggett, supra note 11.

[13] Id.

[14] Id.

[15] Id.

[16] See Handwerk, supra note 5.

[17] Doggett, supra note 11.

[18] See Julian/Gregorian Calendars, U. Nottingham: Manuscripts & Special Collections (last visited Feb. 11, 2020),  https://www.nottingham.ac.uk/manuscriptsandspecialcollections/researchguidance/datingdocuments/juliangregorian.aspx.

[19] See Julian/Gregorian Calendars, supra note 18.

[20] Id.

[21] See id.

[22] George Washington’s Birthday, Nat’l Archives (last updated June 19, 2019), https://www.archives.gov/legislative/features/washington?mod=article_inline.

[23] Leap Year: 10 Things About 29 February, supra note 1.

[24] See Meg Bryant, ‘Leap Year Babies’ Still Face Medical Records Challenges, Healthcare Dive (Feb. 29, 2016), https://www.healthcaredive.com/news/leap-year-babies-still-face-medical-records-challenges/414660/.

[25] See id.; see also Katie Bindley, Leap Year Babies: Expecting on February 29?, HuffPost (Feb. 28, 2012), https://www.huffpost.com/entry/leap-year-babies-2012_n_1307506.

[26] See Bryant, supra note 24.

[27] See id.

[28] The Leap Year and the Law, Thomson Reuters: Legal Solutions Blog (Feb. 29, 2016), https://blog.legalsolutions.thomsonreuters.com/events/the-leap-year-and-the-law/.

[29] See Samantha Koeninger Rittgers, 2020 is a Leap Year. Is This a Trick or Treat?, Graydon (Oct. 31, 2019), https://graydon.law/2020-is-a-leap-year-is-this-a-trick-or-treat/.

[30] Fed. R. Civ. P. 6(a); see also United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003) (citing United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)) (“Under this rule, when a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the relevant act.  The anniversary date is the ‘last day to file even when the intervening period includes the extra leap year day.’”).

[31] See Kreisler & Kreisler, LLC v. Nat’l. City Bank, 657 F.3d 729, 732–33 (8th Cir. 2001) (upholding 365/360 interest rate calculation included in promissory note).  A 366-day year would result in 0.278% more interest paid than in a 365-day year.

[32] 673 F.3d 1082 (9th Cir. 2011).

[33] See Habibi, 673 F.3d at 1086.

[34] Id. at 1088.

[35] 8 U.S.C. § 1101(a)(43)(F).

[36] Habibi, 673 F.3d at 1088.

[37] Id. at 1085.

[38] 8 U.S.C. § 1101(a)(43)(F).

[39] Habibi, 673 F.3d at 1086.

[40] Id.

By Paul Fangrow

According to the National Institute on Drug Abuse (“NIDA”), more than 130 people in the United States die every day from overdosing on an opioid drug.[1] The Centers for Disease Control and Prevention (“CDC”) reports that 68% of the over 70,200 deaths by drug overdose in 2017 were from an opioid.[2] Additionally, the CDC estimates the total economic burden per year in the United States is to the tune of $78.5 billion on just prescription opioid abuse.[3] In 2017, the US Department of Health and Human Services (“HHS”) declared that the opioid epidemic was a public health emergency.[4] Since then, over a billion dollars have been granted to community health centers to treat and research opioid addiction through the HHS.[5]

The alphabet soup of federal agencies are not the only actors on this stage attempting to treat the problem; states have also tried to prescribe their own remedies to societies’ new addiction.[6] As states scramble to find ways to staunch the hemorrhage of avoidable deaths via opioid abuse, North Carolina has breathed new life into a specter of the 1980s, leftover from the War on Drugs.[7] On December 1, 2019, North Carolina’s “death by distribution” law went into effect, which attempts to help fix the crisis by imposing felony convictions on illegal distributors of certain categories of drugs, when those drugs result in the death of their user.[8] Unfortunately, this new “death by distribution” law looks to be a very small solution for a very large problem.

To understand why this fix is so small, consider the cause of the epidemic. It has been widely reported and accepted that the opioid epidemic’s “patient zero” was over-prescription of opioid painkillers in the late 1990s, which led to rampant misuse by patients due to the extremely addictive properties of these painkillers.[9] NIDA reports that between 21% and 29% of patients prescribed opioids for pain relief misuse them, and 8% to 12% of that pool of patients develop a “use disorder.”[10] Out of the original 21% to 29% of people who misuse prescription opioids and ostensibly included in the 8% to 12% of “use disorder” cases, 4% to 6% transition to heroin abuse.[11] Roughly 80% of heroin users initially were misusing prescription opioids.[12]

Now consider what this “death by distribution” law criminalizes. First, while one might intuit “distribution,” the elements of both death by distribution[13] and aggravated death by distribution[14] explicitly state “[t]he person unlawfully sells at least one certain controlled substance.” Not any kind of distribution is criminalized, only sales of certain controlled substances.[15] The statute later defines what kinds of drugs are included as “certain controlled substances,”[16] as well as “lawful distribution” in a way to allow medical professionals to issue valid prescriptions for a legitimate medical purpose, and to allow for pharmacies to dispense, deliver, or administer controlled substances.[17]

Second, both regular and aggravated charges require that “ingestion of the certain controlled substance causes the death of the user.”[18] Third, the sale of the certain controlled substance has to be the proximate cause of the victim’s death.[19] Fourth, the seller must not have acted with malice.[20] The aggravated flavor of the charge includes an additional fifth element that essentially requires the seller to have a previous conviction of this or another drug distribution or trafficking crime.[21] What this law does, in essence, is push the illegal sale of certain categories of drugs from a Class I, H, or G felony[22] to a Class C or B2[23] felony if a person dies from overdose. Two questions arise after a review of this law: will North Carolina’s flavor of drug-induced homicide statute have any meaningful impact on the opioid epidemic,[24] and how does a prosecutor even go about proving all the elements of the crime?

Drug-induced homicide statutes began creeping into the criminal codes of various states in the 1980s to combat the growing use of crack cocaine;[25] North Carolina’s death by distribution law even covers cocaine and its derivatives as the sole stimulant in a long list of depressants.[26] The idea behind these statutes was that big distributors and traffickers would be able to be charged for the deaths of their customers.[27] In reality, the people often caught by these drug-induced homicide statutes were friends, family members, or caretakers sharing drugs with one another.[28] The North Carolina statute is thus very clever in specifying a sale of a drug instead of mere distribution, as it ostensibly will avoid this unfortunate outcome. Unfortunately, clever avoidance of an overbreadth problem doesn’t speak to its efficacy as a solution to the opioid epidemic. Remember that the cause is over-prescription and subsequent abuse of painkillers.[29] While this law may help the people who’ve moved on to heroin or other illegal opioids by virtue of closing down the avenues for its distribution, it does nothing to address the problem of abuse with legally obtained opioids.[30]

 The bigger issue with drug-induced homicide laws is proving the actual offense.[31] Drug-induced homicide laws do have two distinct advantages in that category; they do not have a mens rea requirement and operate as a strict liability offense, and they often do not have a proximate cause or foreseeability element.[32] North Carolina’s death by distribution law is similar in that it has no mens rea element in either the standard nor the aggravated offense, but both offenses explicitly incorporate a proximate cause requirement.[33] This introduces concepts of foreseeability and/or intervening or superseding causation into the statute,[34] which can significantly muddy an otherwise straightforward case. What if the buyer of a drug intentionally overdoses as a form of suicide?[35] What if the victim overdosed by taking a mixture of Vicodin and LSD?[36] The explicit statutory language requires that “[t]he ingestion of the certain controlled substance or substances cause[] the death of the user;”[37] what if a drug dealer sells oxycontin to a driver who dies in a car accident while high? This is ignoring the difficulty in locating and proving that a specific dealer sold the specific drug to a specific person who overdosed on that specific drug: what if the victim has more than one dealer of the same product? Ultimately, these are all fact-intensive inquiries for a jury to resolve, which introduces a large degree of unpredictability into any death by distribution case.

Besides unpredictability, there are other factors that make the death by distribution law unworkable. The administrative costs to secure toxicology reports and get experts to testify as to the drugs within the victim’s systems brings with it a higher administrative cost to prosecute.[38] There is also the greater financial burden on the state to incarcerate dealers for four to fifteen years instead of less-than-one to three years. All these costs go to remedy a symptom, not the actual disease underlying the opioid epidemic. People affected by the opioid epidemic deserve better solutions than a stopgap relic from the 1980s. The death by distribution law will be simply ineffective.


[1] Opioid Overdose Crisis, NIH, https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis (last updated Jan. 2019).

[2] Understanding the Epidemic, CDC, https://www.cdc.gov/drugoverdose/epidemic/index.html (last updated Dec. 19, 2018).

[3] NIH, supra note 1.

[4] What is the U.S. Opioid Epidemic?, HHS, https://www.hhs.gov/opioids/about-the-epidemic/index.html (last updated Sept. 4, 2019).

[5] Nathan Yerby, Epidemic, OpioidHelp, https://www.opioidhelp.com/epidemic/ (last edited Oct. 15, 2019).

[6] Prescribing Policies: States Confront Opioid Overdose Epidemic, Nat’l Conf. State Legislatures (June 30, 2019) https://www.ncsl.org/research/health/prescribing-policies-states-confront-opioid-overdose-epidemic.aspx.

[7] Valena E. Beety, Drug Enforcement & Health Policy in Today’s Epidemic: Prosecuting Opioid Use, Punishing Rurality, 80 Ohio St. L.J. 741, 757–58 (2019).

[8] N.C. Gen. Stat. § 14-18.4 (2019).

[9] CDC, supra note 2; HHS, supra note 4; NIH, supra note 1.

[10] NIH, supra note 1.

[11] NIH, supra note 1.

[12] NIH, supra note 1.

[13] N.C. Gen. Stat. § 14-18.4(b)(1) (2019) (“Death by Distribution of Certain Controlled Substances”) (emphasis added).

[14] N.C. Gen. Stat. § 14-18.4(c)(1) (2019) (“Aggravated Death by Distribution of Certain Controlled Substances”) (emphasis added).

[15] N.C. Gen. Stat. § 14-18.4(b)(1), (c)(1) (2019).

[16] N.C. Gen. Stat. § 14-18.4(d) (2019) (“ . . . [A]ny opium, opiate, or opioid; any synthetic or natural salt, compound derivative, or preparation of opium, opiate, or opioid; cocaine or any other substance described in [the list of cocaine derivatives]; methamphetamine; a depressant described in [the list of Schedule IV depressants]; or a mixture of one or more of these substances.”)

[17] N.C. Gen. Stat. § 14-18.4(g) (2019).

[18] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).

[19] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).

[20] N.C. Gen. Stat. § 14-18.4(b)(4), (c)(4) (2019). If they acted with malice, presumably they would be charged with murder instead.

[21] N.C. Gen. Stat. § 14-18.4(c)(4) (2019).

[22] N.C. Gen. Stat. § 90-95(b) (2019) (depending on what schedule the drug is on).

[23] N.C. Gen. Stat. § 14-18.4(h) (2019) (criminalizing death by distribution as a Class C felony and aggravated death by distribution as a Class B2 felony).

[24] Jamie Peck, Why Heroin Addicts Are Being Charged With Murder, Rolling Stone (Aug. 2, 2018), https://www.rollingstone.com/culture/culture-features/heroin-opioid-addicts-charged-with-murder-o-d-703242/.

[25] Valena E. Beety et al., Drug-Induced Homicide: Challenges and Strategies in Criminal Defense, 70 S.C. L. Rev. 707, 709 (2019).

[26] N.C. Gen. Stat. § 14-18.4(d) (2019).

[27] Beety et al., supra note 25.

[28] Id.; see Peck, supra note 24.

[29] NIH, supra note 1.

[30] This may be intentional, however, as the STOP Act of 2017 explicitly targeted legally prescribed opioids and tightened how they are to be prescribed by pharmacists and physicians; the electronic prescription requirement of the act came into effect just this year. Bill Summary, N.C. Medical Board, https://www.ncmedboard.org/images/uploads/article_images/The_STOP_Act_summary-OnLetterhead.pdf (last revised June 30, 2017).

[31] Hailey Varner, Note, Chasing the Deadly Dragon: How the Opioid Crisis in the United States Is Impacting the Enforcement of Drug-Induced Homicide Statutes, 19 U. Ill. L. Rev. 1799, 1824 (2019).

[32] Alex Kreit, Drug Enforcement & Health Policy in Today’s Epidemic: The Opioid Crisis and the Drug War at the Crossroads, 80 Ohio St. L.J. 887, 896–97 (2019).

[33] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).

[34] Beety et al., supra note 25, at 725–27 (explaining the effect of proximate cause and intervening cause doctrine on drug-induced homicide charges).

[35] Kreit, supra note 32, at 897 (noting that at least one federal district court judge stated that suicide through heroin overdose met a death by homicide statute’s terms, which did not have a proximate cause element).

[36] LSD is not covered by the Death by distribution statute.

[37] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).

[38] According to some commentators, the point of these kinds of laws isn’t even to prosecute them; they’re just a scare tactic to force caught dealers into a plea agreement. Beety, supra note 7, at 758–59.

By Amanda Manzano

“That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command.” Strickland v. Washington, 466 U.S. 668, 685 (1984).

The 1984 U.S. Supreme Court case Strickland v. Washington safeguarded a criminal defendant’s 6th Amendment rights by unequivocally confirming that the right to counsel is, by law, the right to effective counsel.[1] A two-part test thus emerged to satisfy a convicted defendant’s claim of ineffective assistance: (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defendant.[2] Courts agree on the elements of this test. But on the parameters of its application, they divide. In that divide lives the case of Adnan Syed v. State of Maryland and a pending petition for a writ of certiorari with the United States Supreme Court. 

The compelling facts of Syed’s case grabbed national attention and spurred a flurry of media coverage that raised questions as to Syed’s possible innocence. On January 13, 1999, 17-year-old Baltimore high school student Hae Min Lee went missing. On February 9 of that year, Lee’s body was discovered in a shallow park grave, and nearly three weeks later ex-boyfriend Adnan Syed was arrested for murder. A jury found Syed guilty as charged and he is currently serving a life sentence. 

Prosecutors presented evidence at trial that Syed killed Lee sometime between 2:15 and 2:35 p.m. and subsequently called friend Jay Wilds for help with the cover-up at exactly 2:36 p.m.[3] What was not presented at trial was testimony from Asia McClain, Syed and Lee’s classmate who claims she saw and spoke with Syed at the library during the same timeframe the State alleged the murder took place; the same timeframe the jury used to convict Syed. McClain was known to Syed’s defense attorney Cristina Gutierrez but was never contacted for an interview. Her story was not a factor in weighing Syed’s guilt or innocence simply because it was not told.

In 2016, Baltimore City Circuit Judge Martin Welch vacated Syed’s conviction and ordered a new trial based, in part, on McClain’s new testimony as an alibi witness and allegations of ineffective assistance of counsel.[4] The Maryland Court of Special Appeals upheld this ruling, but in March 2019 the Maryland Court of Appeals (Maryland’s highest court) reversed the decision and reinstated Syed’s conviction. Now, nearly 21 years after his arrest, Syed is awaiting a response on whether the Supreme Court will grant certiorari.

The petition’s question presented is “whether a court evaluating prejudice under Strickland v. Washington must take the State’s case as it was presented to the jury . . . or whether the court may instead hypothesize that the jury may have disbelieved the State’s cas[e].”[5] The Court of Appeals held that under the Strickland analysis (1) Gutierrez was deficient in failing to contact McClain, but that (2) this deficiency did not prejudice Syed. In a 4-3 opinion, the court found that given the totality of the evidence, “there is not a significant or substantial possibility that the verdict would have been different had [Gutierrez] presented Ms. McClain as an alibi witness.”[6] 

Now, petitioner Syed urges the Supreme Court to establish a uniform standard. Must courts conduct a Strickland analysis in light of the case the state actually presented to the jury at trial? Or else, may courts consider a state’s response to what an effective counselor would have presented—a response a jury never considered at trial—to determine there is not a significant or substantial possibility that a verdict would be altered? Syed argues for the former approach, one which at least ten state and federal courts currently apply.[7] The Maryland Court of Appeals ruled using the latter, determining McClain’s testimony would have “contradicted defendant’s own statement[s], which were themselves already internally inconsistent; thus [potentially] undermin[ing] Mr. Syed’s credibility.”[8] Additionally, the court determined that even if the jury would have accepted McClain’s testimony as true, it could have decided Syed still committed the murder later that day, a theory the State never argued at trial.[9]

Strickland puts the burden of proof on the defendant to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[10] If the Supreme Court agrees with Syed and overturns the Court of Appeals’ decision, the Strickland analysis will be conducted using the case the state of Maryland actually presented at trial; that is, that Hae Min Lee was last seen at 2:15 p.m. and was definitively dead by 2:36 p.m., then McClain’s testimony, if believed, accounts for Syed in that 21-minute window and could eliminate him, at least in the mind of a juror, as a viable perpetrator of the crime.

Each Term, the U.S. Supreme Court receives about 7,000-8,000 new cases, 100-150 of which are accepted for review,[11] and about 80 of which are granted plenary review with oral argument.[12] The Court is generally inclined to take cases that will have national significance, create a uniform standard for conflicting federal courts, or set precedent.[13] While the statistical odds are not in Syed’s favor, the substantive value of his claim might be. His petition was filed in August and is now distributed and scheduled to be considered at the Justices’ Conference on November 22, 2019.[14]

Syed’s fate is pending, and followers of his case are faced with this new question presented, one of procedure rather than guilt or innocence. Advocates of Syed’s innocence would agree with his position that courts should not be able to consider “a hypothetical case that sidesteps the weaknesses in the State’s presentation of the evidence.”[15] Perhaps this may be true in the case of Syed, but the impact of a Supreme Court opinion on the matter would create binding precedent nationwide. Should reviewing courts be tied to the case a state presents at trial, a case whose crafting was deprived the opportunity to consider evidence effective counsel should have presented? Perhaps the state is not to be blamed for arguing a jury would still be persuaded by its case, one that maybe would have swiftly and thoroughly discredited any new evidence with ease during trial. 

At what point, however, should the state redirect its efforts? The resources funneled toward appeal after appeal (since 2015, Syed and the State have each appealed rulings twice)[16] could be focused on conducting a new trial. If the Supreme Court reverses and grants Syed a new trial, both he and the state of Maryland stand to gain a fuller presentation of what happened that January day with the addition of new evidence his counsel failed to acquire and present. Theoretically, both sides would be better informed with the most important matter in a criminal case: truth, in pursuit of justice. Isn’t that what everybody wants?


[1] Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).

[2] Strickland, 466 U.S. at 687.

[3] Petition for Writ of Certiorari at 2–8, Syed v. Maryland, No. 19-227 (U.S. filed Aug. 19, 2019).

[4] Bill Chappell, Adnan Syed, Subject of ‘Serial’ Podcast, Will Get a New Trial, NPR (June 30, 2016, 4:52 PM), https://www.npr.org/sections/thetwo-way/2016/06/30/484225226/adnan-syed-subject-of-serial-podcast-will-get-a-new-trial.

[5] Petition, supra note 3, at (i).

[6] State v. Syed, 204 A.3d 139, 158 (Md. 2019).

[7] Petition, supra note 3, at 3.

[8] Syed, 204 A.3d at 158.

[9] Id. at 157.

[10] Strickland, 466 U.S. at 703.

[11] Supreme Court Procedures, U.S. Courts, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1.

[12] The Justices’ Caseload, Supreme Court U.S., https://www.supremecourt.gov/about/justicecaseload.aspx.

[13] Supreme Court Procedures, supra note 11.

[14] Syed v. Maryland, Pending Case Page, SCOTUSblog, https://www.scotusblog.com/case-files/cases/syed-v-maryland/.

[15] Petition, supra note 3, at 5.

[16] See id.

By Michael Johnston

When Shawn Ellis extended his middle finger while riding in the passenger seat of a vehicle on U.S. Highway 52, he likely did not know that he would become involved in the latest of a string of appellate cases on the First Amendment.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .”[1] Freedom of speech under the First Amendment was incorporated against the states via the Fourteenth Amendment, limiting the ability of the states to restrict freedom of speech under the United States Constitution.[2] Expressive conduct outside of verbal speech can also merit First Amendment protections if there is an intent to convey a particularized message and there is a great likelihood that the message will be understood by those who view it in the surrounding circumstances.[3]

The extension of one’s middle finger, colloquially known as shooting or flipping the bird,[4] has a long history of being used to express emotions ranging from anger and protest to comfort and familiarity.[5] While this gesture can be used to express contempt, several courts have been reluctant to conclude that the middle finger gesture falls into a category of unprotected speech that can be prosecuted.[6] For example, the Sixth Circuit recently determined that a police officer did not have reasonable suspicion or probable cause of criminal activity to stop plaintiff a second time simply because she extended her middle finger after the first stop.[7] The court reasoned that the plaintiff violated no identified law and that “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”[8]

Fighting words, however, are one exception to the First Amendment; they are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[9] The Supreme Court further explained that fighting words are not essential to the discussion of ideas, and any benefit to the social discourse derived from them is outweighed by society’s interest in morality and order.[10] Despite the expressive value of extending one’s middle finger, courts are more willing to conclude that the gesture can support a disorderly conduct charge if there are other disruptive circumstances or if a third party can testify that they felt offended or threatened.[11] For example, the Third Circuit held that a police officer had probable cause to charge plaintiff with disorderly conduct under the totality of the circumstances, namely the plaintiff’s display of his middle finger and aggressive driving directed at another driver on the road.[12] With additional disruptive circumstances, a court is more likely to conclude that the speech constitutes fighting words and that the person using such speech can be charged with disorderly conduct.[13] For expressive purposes, disorderly conduct statutes have been limited by the Supreme Court to the proscription of fighting words.[14]

In State v. Ellis,[15] the defendant was stopped by a police officer after the officer observed the defendant extending his middle finger in the officer’s general direction.[16] The defendant was initially using a waving gesture as his vehicle drove past the stopped officer, but after the defendant’s vehicle passed the officer, the defendant changed his gesture to an extended middle finger.[17] There were other vehicles moving down the highway near the defendant’s vehicle.[18] In its initial opinion, the North Carolina Court of Appeals concluded that this conduct was sufficient for an officer to have reasonable suspicion of disorderly conduct.[19] The panel then withdrew its initial opinion and substituted it with another opinion; the panel majority clarified that the officer had reasonable suspicion of disorderly conduct because there was an objective basis to believe that the defendant’s gesture could have been directed at a third party and that the changing gestures suggested that the potential disorderly conduct was escalating.[20] While the court noted cases concluding that giving a middle finger to law enforcement is protected by the First Amendment, the court distinguished them by concluding that the possibility that defendant’s middle finger could have been directed at a third party was a sufficient basis for reasonable suspicion for disorderly conduct.[21] According to the court, this reasonable suspicion justified the stop and later justified the defendant’s charge and conviction of resisting, delaying, or obstructing a public officer for failing to provide his identification.[22]

The standard for a police officer to conduct a traffic stop is reasonable suspicion of criminal activity,[23] which is a lower standard than probable cause of criminal activity.[24] For reasonable suspicion, the police officer must, under the totality of the circumstances, have specific and articulable facts supporting a suspicion of criminal activity.[25] An innocent explanation for suspicious conduct does not defeat reasonable suspicion,[26] and innocent conduct can contribute to reasonable suspicion under the totality of the circumstances.[27]

However, as the dissenting opinion notes, the majority’s opinion in Ellis seems to disregard the First Amendment protections for defendant’s speech.[28] There is a sizeable amount of authority from around the United States concluding that extending one’s middle finger in the presence of third parties does not constitute disorderly conduct under the First Amendment.[29] Furthermore, there is also authority concluding that simply displaying one’s middle finger is insufficient for reasonable suspicion of criminal activity under the First Amendment.[30] In both Cruise-Gulyas v. Minard[31] and Ellis, for example, an officer stopped someone after they displayed their middle finger in the direction of the officer.[32] While the Sixth Circuit concluded that the officer in Cruise-Gulyas lacked reasonable suspicion to stop the plaintiff in response to the gesture under the First Amendment, the court of appeals in Ellis distinguished Cruise-Gulyas on the basis that it was unclear whom the gesture was directed at in Ellis, even though it seems unlikely that there were no other drivers on the street who might have seen the gesture in Cruise-Gulyas.[33] Just as there was no reasonable suspicion of criminal activity and “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment” in Cruise-Gulyas,[34] the same should be true in Ellis. Furthermore, other courts have viewed the middle finger as sufficient for reasonable suspicion or probable cause of criminal activity only when there are other disruptive circumstances associated with the conduct or a third party can testify that they felt offended or threatened.[35] Unlike in Favata v. Seidel,[36] there were no other disruptive circumstances in Ellis, such as reckless driving, to justify reasonable suspicion or probable cause of disorderly conduct.[37] The Ellis opinion does find some support in North Carolina case law, but one of the more helpful cases for the Ellis opinion is also likely inconsistent with other authorities interpreting the First Amendment.[38]

On a practical note, the Ellis opinion will give law enforcement broader discretion to stop people, even if the stops are only motivated by personal animus. While the motivation of an officer might not be legally relevant when determining whether the officer had reasonable suspicion,[39] such stops can undermine community faith in law enforcement.[40] To justify such a stop, an officer would only need to claim that the offensive conduct of the defendant occurred in the presence of a third party. As in Ellis, the State would not need to provide evidence that the third party was actually offended by the gesture or even observed the gesture.[41] If the analysis of this question focused purely on reasonable suspicion standards under North Carolina law, this outcome might be logical due to the lower standard required for reasonable suspicion. However, in light of the protections for expressive conduct under the First Amendment, law enforcement officers stopping someone simply for using expressive, albeit distasteful, conduct in the presence of others is inconsistent with our constitutional freedoms and history.[42] Given our nation’s long history of protecting dissident speech under the First Amendment even when it happens to be offensive, extending a middle finger should not be a criminal offense, and it should not be treated as reasonable suspicion of a criminal offense simply because a third party might have seen it.

Mr. Ellis is in the process of appealing the panel’s decision.[43] In light of this appeal, the North Carolina Supreme Court should establish that the First Amendment protects expressive conduct in the form of extending a middle finger in public.


[1] U.S. Const. amend. I.

[2] U.S. Const. amend XIV, § 1; see Stromberg v. California, 283 U.S. 359, 368–70 (1931); Gitlow v. New York, 268 U.S. 652, 666 (1925).

[3] See Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 411–12 (1974)).

[4] See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1405–06 (2008).

[5] See id. at 1407–10.

[6] See Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (holding that traffic stop was not lawful because plaintiff giving officer middle finger while riding in vehicle did not create a reasonable suspicion of criminal activity); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) (holding that vehicle passenger’s use of profanity and display of middle finger to police officer protected by the First Amendment); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); Brown v. Wilson, No. 1:12-CV-1122-DAE, 2015 U.S. Dist. LEXIS 88871, at *8–14 (W.D. Tex. July 9, 2015) (holding that plaintiff’s middle finger to police officer while driving was not in violation of Texas’s disorderly conduct statute and did not fall under the fighting words exception to the First Amendment because there was no indication of actual or threatened violence tending to incite an immediate breach of the peace); Corey v. Nassan, No. 05-114, 2006 U.S. Dist. LEXIS 68521, at *23–37 (W.D. Pa. Sept. 25, 2006) (holding that plaintiff’s alleged raising of his middle finger to police officer while driving was protected by the First Amendment in part because of the absence of “some particularized showing that the gesture in the specific factual context constitutes ‘fighting words’ or is otherwise illegal”); Perkins v. City of Gahanna, No. C2-99-533, 2000 U.S. Dist. LEXIS 23209, at *5–11 (S.D. Ohio Sept. 21, 2000) (holding that plaintiff’s display of middle finger to police officer as he was leaving a police station was protected by the First Amendment and not disorderly conduct); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1101, 1110 (W.D. Ark. 2000) (holding that officer improperly charged plaintiff with disorderly conduct after officer observed plaintiff display his middle finger while driving because the disorderly conduct statute, Ark. Code Ann. § 5-71-207(a)(3), was limited to fighting words and the display of one’s middle finger did not constitute fighting words); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Cook v. Bd. of the Cty. Comm’rs, 966 F. Supp. 1049, 1052 (D. Kan. 1997) (holding that “the Court cannot infer that a reasonable police officer would necessarily believe that plaintiff was engaged in disorderly conduct or that — in light of clearly established law and the information known to Officer Drake — a reasonable police officer would have had probable cause to arrest plaintiff and charge him with disorderly conduct in violation of Kansas Law” when plaintiff displayed his middle finger while driving past officer’s parked patrol car); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct under the First Amendment, only criminalized fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); In re Fechuch, No. 2005 AP 02 0012, 2005 Ohio App. LEXIS 3941, at *3–9 (Ohio Ct. App. Aug. 16, 2005) (holding that there was insufficient evidence to support defendant’s conviction for disorderly conduct because defendant’s use of profanity and her middle finger did not constitute fighting words under the First Amendment as they were not inherently likely to provoke a violent reaction from the ordinary citizen); Coggin v. State, 123 S.W.3d 82, 87–88, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[7] See Cruise-Gulyas, 918 F.3d at 497.

[8] See id.

[9] See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (footnote omitted).

[10] See id.

[11] See Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); City of Akron v. Lorenzo, No. 20475, 2001 Ohio App. LEXIS 4327, at *8 (Ohio Ct. App. Sept. 26, 2001) (holding that it was not a manifest miscarriage of justice for a trial court to find defendant guilty of disorderly conduct under fighting words exception because defendant repeatedly shouted profanities at officers and displayed his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words); In re S.J.N-K., 647 N.W.2d 707, 711–13 (S.D. 2002) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct under the fighting words exception after defendant repeatedly displayed middle finger and mouthed profanity to school principal while following principal in car); Estes v. State, 660 S.W.2d 873, 874–75 (Tex. App. 1983) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct after defendant displayed his middle finger to high school principal and principal resisted “animal instinct to retaliate” because the gesture could have constituted fighting words to an average person).

[12] See Favata, 511 F. App’x at 156–57, 159–60.

[13] See, e.g., Wood, 679 N.E.2d at 739–40 (holding that defendant’s conviction for disorderly conduct proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[14] See Gooding v. Wilson, 405 U.S. 518, 527–28 (1972); State v. Summrell, 192 S.E.2d 569, 574–76 (N.C. 1972), overruled in part on other grounds in State v. Barnes, 380 S.E.2d 118, 119 (N.C. 1989).

[15] No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019) petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019). While this case was officially filed for publication by the North Carolina Court of Appeals on August 20, 2019, it has not been given an official reporter designation at the time of this publication.

[16] Id. at *7–8.

[17] Id.

[18] Id. at *6.

[19] N.C. Gen. Stat. § 14-288.4(a)(2) (2017); State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 628, at *6–8 (N.C. Ct. App. Aug. 6, 2019), withdrawn (Aug. 13, 2019), modified, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[20] Ellis, 2019 N.C. App. LEXIS 713, at *9–11.

[21] Id.

[22] See id. at *9–12.

[23] See State v. Barnard, 658 S.E.2d 643, 645 (N.C. 2008).

[24] See State v. Johnson, 803 S.E.2d 137, 139 (N.C. 2017).

[25] See Terry v. Ohio, 392 U.S. 1, 20–22 (1968); State v. Styles, 665 S.E.2d 438, 443–40 (N.C. 2008).

[26] See United States v. Arvizu, 534 U.S. 266, 277 (2002); State v. Williams, 726 S.E.2d 161, 167 (N.C. Ct. App. 2012).

[27] See United States v. Sokolow, 490 U.S. 1, 9–11 (1989); Terry, 392 U.S. at 22.

[28] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *22 (N.C. Ct. App. Aug. 20, 2019) (Arrowood, J., dissenting), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[29] See Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct, only criminalizes fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); Coggin v. State, 123 S.W.3d 82, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[30] See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Sandul, 119 F.3d at 1255.

[31] 918 F.3d 494 (6th Cir. 2019).

[32] See id. at 497; Ellis, 2019 N.C. App. LEXIS 713, at * 7–8.

[33] See Cruise-Gulyas, 918 F.3d at 495–97; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[34] See Cruise-Gulyas, 918 F.3d at 497.

[35] See, e.g., Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[36] 511 F. App’x. 155 (3d Cir. 2013).

[37] See id. at 156–57, 159–60; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[38] See In re V.C.R., 742 S.E.2d 566, 568, 570–71 (N.C. Ct. App. 2013) (holding that officer had reasonable suspicion to seize teenage defendant for disorderly conduct under N.C. Gen. Stat. § 14-288.4(a)(2) after officer began driving away and defendant said, “What the fuck, man?”). It is unlikely that a reasonable person would sincerely believe that a teenager’s use of what was likely rhetorical profanity amongst friends would be plainly likely to provoke violent retaliation and thereby cause a breach of the peace. Furthermore, such speech is likely protected by the First Amendment. Compare id., with Cruise-Gulyas, 918 F.3d at 497 (holding that officer’s second stop of plaintiff after plaintiff extended her middle finger was not based on reasonable suspicion of any criminal act and that plaintiff’s gesture was protected under the First Amendment).

[39] See Whren v. United States, 517 U.S. 806, 813 (1996); State v. Nicholson, 813 S.E.2d 840, 846 (N.C. 2018).

[40] See Albert J. Reiss, Jr., The Police and the Public 175–76 (1971).

[41] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *2–3 (N.C. Ct. App. Aug. 20, 2019); id. at *22 (Arrowood, J., dissenting).

[42] See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989); Cohen v. California, 403 U.S. 15, 25–26 (1971).

[43] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

Click Below For Information on Our 2021 Symposium: Secondary Trauma in the Legal Profession


 

Sponsored by:

The Wake Forest Eudaimonia Institute & The Wake Forest Provost’s Fund for Academic Excellence

Friday, January 31, 2020

8:45 a.m. to 3:00 p.m.

Wake Forest University School of Law, Room 1312

CLICK HERE TO REGISTER NOW

CLE Credits: 4.75 Hours APPROVED

This event is free and open to the public. Breakfast provided at 8:15 am.

Panel Videos

Risk Assessment / Right to Counsel / Community Voice

Parking

A campus parking map can be found here. Parking will be available for registered symposium attendees near the Wake Forest School of Law in lot W1. Signs will be posted at the approved parking lots to guide visitors to the event.

Campus Map/Lunch Options

  1. Entrance from Polo Road
  2. Entrance from University Parkway
  3. Entrance from Reynolda Road
  4. Law School
  5. Parking Lot
  6. Subway
  7. Food Court (Chik-fil-a, Moes, Shorty’s Tavern)

Event Description

The Wake Forest Law Review is hosting its annual Spring Symposium on January 31, 2020 regarding pretrial detention and bail reform at the Wake Forest University School of Law. This topic is scheduled to elicit leading scholars on the subject from around the country as well as other important stakeholders in North Carolina and elsewhere.  The Symposium is set to shed light on the large, yet often unaddressed problem of pre-trial detention in the United States.

The scope of pretrial detention in America is significant: More than half a million people sit in jail at any given time in America because they have been merely accused of a crime.  Such broad pretrial detention deprives people of their liberty before being afforded significant process, undermines the presumption of innocence, increases crime, and wastes tax dollars by locking up a lot of people who are not dangerous. Direct cost estimates for our current state of widespread pretrial detention range between nine and twelve billion dollars per year.  And those numbers do not account for the loss of human flourishing that pretrial detention inflicts, including loss of employment and housing as well as defendants’ lost contributions to economic growth or to tax bases.  For defendants who are the primary wage earners in their family, widespread use of pretrial detention leaves families to fend for themselves and depend more heavily on public assistance.  Moreover, recent empirical evidence demonstrates that defendants detained pretrial are more likely to be convicted than those released pretrial and are likely to serve longer postconviction sentences.

The symposium will bring together criminal law stakeholders, academics, and community groups to discuss the current state of bail reform and how to continue reforming these systems.  With each panel our aim is to combine theory with an understanding of facts on the ground regarding various aspects of pretrial detention and from various places across the country.  We hope that you will be able to join us for this event.  A light breakfast will be provided, and CLE credit is available.  

Event Schedule

8:00 am – 8:45 am – Breakfast and guest arrival at the law school.

8:45 am – 9:00 am – Opening Remarks.

9:00 am – 10:15 am – Risk Assessment Panel

10:15 – 10:25 – Break

10:25 am – 11:45 am – Stories of Reform Panel

11:45 pm – 12:45 pm – Lunch

12:45 pm – 1:40 pm – Right to Counsel Panel

1:40 pm – 1:50 pm – Break

1:50 pm – 3:00 pm – Community Voice Panel

3:00 pm – Closing remarks

Panelist Bio’s and Panel Descriptions

Risk Assessment Panel

The risk assessment panel will delve into the various factors that go into determining the risk of setting bail for a detained defendant. Current standards are often based upon bail charts that automatically set bail standards. This panel will discuss the pros and cons with that standard and how to effectuate new standards that take into account the likelihood of a defendant to flee, the likelihood of a defendant to commit another illegal act, and the reasonable bail they can pay based on their circumstances.

Panelists:

  • Sarah Desmarais
    • Dr. Desmarais is a Professor in the Applied Social and Community Psychology Program and Director of the Center for Family and Community Engagement at North Carolina State University. She received her Ph.D. from the Law and Forensic Psychology Program at Simon Fraser University. Dr. Desmarais’ current research focuses on the assessment and treatment of risks and needs associated with criminal behavior, interpersonal violence, and terrorism.
  • Sandra Mayson
    • Professor Sandra G. “Sandy” Mayson has joined the University of Georgia School of Law teaching Criminal Law, Evidence, and a seminar on Criminal Justice Reform. Mayson comes to UGA from the University of Pennsylvania Law School, where she served as a Research Fellow for the Quattrone Center for the Fair Administration of Justice. She previously served as a Furman Academic Fellow at New York University School of Law. Mayson received her B.A. in comparative literature summa cum laude from Yale University. She earned her law degree magna cum laude from New York University, where she was an articles editor of the New York University Law Review, an Institute for International Law and Justice Scholar, a Florence Allen Scholar and a member of the Order of the Coif.
  • Lauryn Gouldin
    • Professor Lauryn Gouldin teaches constitutional criminal procedure, criminal law, evidence, constitutional law, and criminal justice reform. Her scholarship focuses on the Fourth Amendment, pretrial detention and bail reform, and judicial decision-making. Gouldin graduated from Princeton University with a major in the Woodrow Wilson School of Public and International Affairs and received her J.D., magna cum laude, from New York University School of Law. Following law school, Gouldin clerked for the Hon. Leonard B. Sand in the Southern District of New York and for the Hon. Chester J. Straub of the U.S. Court of Appeals for the Second Circuit.
  • Jenny Carroll
    • Professor Jenny Carroll joined the University of Alabama School of Law faculty in 2014. She is the Wiggins, Childs, Quinn, and Pantazis Professor of Law. She graduated summa cum laude with an A.B. from Duke University and with honors with a J.D. from the University of Texas. She also holds an LL.M. from Georgetown University Law Center in Clinical Advocacy, which she earned in conjunction with the Prettyman Fellowship. Prior to her years of practice as a public defender and teaching, she clerked for the Honorable William Wayne Justice of the United States District Court, Eastern District of Texas.

Stories of Reform Panel

Perhaps the most important aspect for lawyers to consider when they learn about an area of the law and its potential shortfalls are the results of test cases in other jurisdictions. This panel will discuss how other jurisdictions have altered their approach to bail through legislation, local prosecutor initiatives, community action, and judicial intervention. North Carolina practitioners will be empowered with knowledge regarding what approaches to bail reform have been most effective and what unintended consequences may have followed.

Panelists:

  • Jessica Smith
    • Professor Jessica Smith is Director of the UNC School of Government’s Criminal Justice Innovation Lab. The Lab brings together a broad range of stakeholders to learn about criminal justice problems, implement innovative consensus solutions, and measure the impact of their efforts.
    • Smith came to the School of Government in 2000 after practicing law at Covington & Burling in Washington, D.C., and clerking for Judge W. Earl Britt on the U.S. District Court for the Eastern District of North Carolina and for Judge J. Dickson Phillips Jr. on the U.S. Court of Appeals for the Fourth Circuit. In 2006, she received the Albert and Gladys Hall Coates Term Professorship for Teaching Excellence; in 2013, she was named by the Chancellor as a W. R. Kenan, Jr. Distinguished Professor, one of the University’s highest academic honors. Smith earned a BA, cum laude, from the University of Pennsylvania and a JD, magna cum laude, Order of the Coif, from the University of Pennsylvania Law School, where she was managing editor of the Law Review.
  • Spencer Merriweather
    • Spencer Merriweather is the current District Attorney for Mecklenburg County. Merriweather earned a law degree from the University of North Carolina at Chapel Hill in 2005. He received his undergraduate degree from Princeton University, where he served as undergraduate Student Body President and on the University Board of Trustees for four years following graduation in 2000. Between college and law school, Spencer worked on Capitol Hill as a congressional staffer for Del. Eleanor Holmes Norton (D-DC). He served as the first director of her Commission on Black Men and Boys.
  • Caitlin Fenhagen
    • Caitlin Fenhagen is the Criminal Justice Resource Director for Orange County, North Carolina. The Orange County Criminal Justice Resource Department (CJRD) was created by the Board of County Commissioners to oversee, support and enhance jail alternatives programming in Orange County. Prior to her position at the CJRD, she worked for eight years as the Deputy Capital Defender for the Office of the N.C. Capital Defender.  After graduating from UNC School of Law, she was an Assistant Public Defender in Philadelphia, the Bronx, and Orange County. She also spent two years as an attorney at the Center for Death Penalty Litigation.
  • Brandon Garrett
    • Professor Brandon L. Garrett joined the Duke Law faculty in 2018 as the inaugural L. Neil Williams, Jr. Professor of Law. Garrett received his BA in 1997 from Yale University. He received his JD in 2001 from Columbia Law School, where he was an articles editor of the Columbia Law Review and a Kent Scholar. After graduating, he clerked for the Hon. Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit and then worked as an associate at Neufeld, Scheck & Brustin LLP in New York City.

Community Voice Panel

The community voice panel will address the movement of many community groups to come to the aid of defendants who cannot make their bail. The viewpoint of these stakeholders and their knowledge of the bail system and its effects on detainees will aid practitioners in developing meaningful arguments to consider when facing bail hearings.

Panelists:

  • Jocelyn Simonson
    • Professor Simonson teaches courses in criminal law and evidence. Her scholarship explores ways in which the public participates in criminal justice processes and how that participation, in turn, has the potential to lead to broader changes in the justice system. Prior to joining the Brooklyn Law School faculty in 2015, Professor Simonson was an Acting Assistant Professor of Lawyering at New York University School of Law. Her background also includes work as a public defender with the Bronx Defenders and as a judicial clerk for the Hon. Barrington D. Parker, Jr., U.S. Court of Appeals, Second Circuit. She is a graduate of Harvard Law School, where she was the Editor-in-Chief of the Harvard Civil Rights–Civil Liberties Law Review, and received her B.A. from Yale University.
  • Andrea Hudson
    • Andrea Hudson is an experienced director with a demonstrated history of working in the civic & social organization industry. She is the current director of the Bail Fund at Community Success Initiative in North Carolina.
  • Kristie Puckett-Williams
    • Kristie Puckett-Williams is a Regional Field Organizer for the ACLU of North Carolina’s Campaign for Smart Justice. She is a Charlotte native who holds an M.A. in Human Services Counseling: Addiction and Recovery Counseling. Having survived domestic violence, drug addiction and incarceration, Kristie is now an advocate and activist, fighting for the rights of all marginalized and disenfranchised people. Her goal is to use her educational and life experiences to convey a message of strength and hope in the community as well as a message of recovery, restoration and redemption.
  • Mary Hooks
    • Mary Hooks is the co-director of Southerners on New Ground. The organization builds, sustains, and connects a Southern regional base of LGBTQ people in order to transform the region through strategic projects and campaigns developed in response to the current conditions in our communities. Mary joined SONG as a member in 2009 and begin organizing with the organization in 2010.
  • Yemi Adegbonmire
    • Yemi Adegbonmire is the General Counsel of The Bail Project. Prior to joining TBP, Yemi was a legal executive at the Walt Disney Company, where she served as legal counsel to ABC Media Networks, Maker Studios Inc., Disney Consumer Products and Interactive Media, and Disney’s Direct to Consumer and International Division. Yemi earned both a Bachelor of Arts and Juris Doctor from Wake Forest University, and holds a Master of Health Science from Johns Hopkins University. Yemi is a former Department of Heath and Human Services Public Health Analyst and currently serves on Lambda Legal’s National Board of Directors. Yemi is a member of Delta Sigma Theta Sorority Incorporated and discovered her passion for cooking Thai cuisine while teaching abroad in Bangkok. 

Right to Counsel Panel

The right to counsel at bail hearings is not guaranteed by the Constitution. However, the right to representation at a hearing that determines a person’s freedom is a very important consideration. This panel will discuss the implications of having counsel at the bail hearing. It will also discuss strategies counsel can implement to have bail reconsidered and reform efforts that have provided a right to counsel during bail hearings.

Panelists:

  • Doug Colbert
    • Professor Colbert joined the faculty of the University of Maryland School of Law in 1994 after directing the criminal justice clinic and teaching civil rights at Hofstra Law School and visiting at Northeastern and Utah Law Schools. Prior to entering teaching, he was a senior trial attorney in the criminal defense division of the NYC Legal Aid Society. Professor Colbert’s recent scholarly activities have focused on reforming states’ pretrial release systems and guaranteeing counsel at the bail stage. He founded and directed the Lawyers at Bail Project, which represented 4,000 indigent defendants at bail hearings.
  • James Williams
    • James Williams is the retired Chief Public Defender of Orange and Chatham counties. After a career dedicated to addressing racial and social justice issues, Williams continues to pursue social justice reform in his retirement. Williams has founded the North Carolina Public Defenders’ Committee on Racial Equity, the North Carolina Commission on Racial and Ethnic Disparities, and the Orange County Bias-Free Policing Coalition. Williams brings a career of knowledge regarding defendant’s rights and social justice reform to this panel.