12 Wake Forest L. Rev. Online 24

Jeffrey Steven McConnell Warren, Esq.*

In North Carolina, a law enforcement officer’s career can be over with the stroke of a prosecutor’s pen.  Cloaked in prosecutorial immunity, district attorneys enjoy a little-known power to decide that a law enforcement officer’s character for truthfulness is materially impaired and that he or she will not be called as a witness in any future criminal proceeding in the state.  While the decision of whether to call an officer as a witness during a particular criminal prosecution is subject to the discretion of the prosecuting attorney, district attorneys often publish their decisions concerning an officer’s inability to testify at any future proceedings in a letter, known as a “Giglio letter,” to an officer’s employer.  Once a district attorney writes a Giglio letter about a particular officer, that officer is functionally unable to make arrests, handle evidence, or interview suspects.  As a result, law enforcement officers who receive Giglio letters are almost always terminated and forced to find new careers.  Even if a prosecutor’s determination is based on mistaken information or is the product of retaliation, there is no mechanism by which a law enforcement officer in North Carolina can present evidence in his or her defense, challenge a district attorney’s decision, or appeal a Giglio determination.

On September 2, 2021, North Carolina enacted a law (the “Giglio Bill”) that directs the North Carolina Criminal Justice Standards Division of the Department of Justice to obtain the identity of every officer in the state subject to a “Giglio impairment” and republish his or her Giglio status to any law enforcement agency who hires them.  Despite North Carolina’s strong tradition of robustly protecting the rights of its citizens to earn a living in their chosen profession, the Giglio Bill does not create any safeguards to ensure that Giglio determinations are accurately made in good faith after a complete review of all available evidence and fails to create any avenue for officers to appeal adverse Giglio determinations.  This Article explores the unique harm presented by a Giglio letter to law enforcement officers, the urgent need for due process, and ultimately argues that the Giglio Bill runs afoul of the North Carolina Constitution.


In 1972, John Giglio appealed his conviction for forging money orders to the Supreme Court of the United States on the basis of newly discovered “evidence.”[1]  His theory was novel: the government failed to disclose a promise made to its key witness that the witness would not be prosecuted if he testified for the government against Mr. Giglio.[2]  In Brady v. Maryland,[3] the Supreme Court had already determined that the state must disclose “exculpatory evidence” to criminal defendants.  Although not “evidence” in the traditional sense, Mr. Giglio asserted that the undisclosed promise of immunity was of such importance to the key witness’s credibility, and therefore to Mr. Giglio’s defense, that the government’s failure to disclose it violated Mr. Giglio’s constitutional right to due process of law.[4]

The Supreme Court agreed.[5]  In Giglio v. United States,[6] the Court held that prosecutors have a constitutional obligation to turn over evidence that can be used to impeach the credibility of a state’s witness “[w]hen the ‘reliability of [the] witness may well be determinative of guilt or innocence.”[7]  The prosecution does not, however, have to disclose its “entire file” to defense counsel to meet these obligations.[8]  Rather, information is constitutionally discoverable only if it is (1) favorable to the defendant because it is either exculpatory or impeaching, (2) known to a member of the prosecution team, (3) not otherwise publicly available, and (4) the information is “material,” which in turn depends on whether there is a “reasonable probability” that disclosure to the defense would yield a different result in the proceeding (the “Giglio Doctrine”).[9]  Examples of such “material evidence” include evidence showing bias, interest, perjury, prior inconsistent statements, and other willful acts of dishonesty that are admissible to impeach testimony within the meaning of a state’s rules of evidence.[10]

In light of Giglio, many prosecutors understandably decline to call witnesses who have impeachable testimony.[11]  A prosecutor’s decision not to call an officer to testify at trial due to the requirement of disclosure regarding an officer’s character is often referred to as the “Giglio impairment” of the officer.[12]  But prosecutors have transformed the Giglio decision—intended to be a shield for criminal defendants—into a sword, making prosecutors the ultimate arbiters of who can, or cannot, serve as a law enforcement officer in a particular state.[13]

Over the last five decades, district attorneys across the country have read into the Giglio Doctrine a nonexistent obligation to publish sweepingly broad letters summarizing the reasoning behind Giglio impairment decisions, known as “Giglio letters,” to officers’ employers.[14]  Even though prosecutors only have a constitutional obligation to disclose impeachment material under Giglio when the reliability of a witness “may well be determinative of guilt or innocence,”[15] Giglio letters are almost always preemptive in nature, meaning they are sent in the absence of a pending trial.[16]  These preemptive Giglio letters inform an officer’s employer of the state’s refusal to call an officer as a witness at any future hypothetical trial, regardless of what the officer’s role or testimony may be.[17]  These “preemptive” Giglio determinations frequently lack legal and factual justifications as it is impossible for a prosecutor to determine whether he or she will have disclosure obligations in reference to a particular officer without knowing the context of their future testimony.[18]

Although law enforcement agencies have an interest in knowing whether their employees can be called as witnesses, Giglio letters are colloquially referred to as “death letters” or “scarlet letters” by prosecutors and law enforcement officers because they are career killers.[19]  Being “Giglioed” is an official finding that an officer is too untrustworthy to testify.[20] When a district attorney decides not to utilize an officer as a witness for any future criminal trial, the officer is functionally unable to make arrests or be involved in handling evidence.[21]  Rendering them unable to perform basic duties, Giglio letters almost always result in the termination of officers or removal of their police powers.[22]  As such, even though they lack the authority to directly control the hiring and firing of law enforcement officers, prosecutors have utilized the Giglio Doctrine to become de facto personnel managers for law enforcement agencies across the country.

Prosecutors have been known to maintain lists of officers they deem to be subject to Giglio impairment.[23]  In light of the repeated killing of unarmed Black men and women across the United States by law enforcement officers,[24] the public has developed a keen interest in these so-called “Giglio” or “Brady[25] lists.[26]  Prosecutors generally keep these lists secret, but they often face withering criticism for doing so.[27]  In response to public outcry, some prosecutors are publishing the identities of officers who they have deemed to be too untrustworthy to testify.[28]  The public release of this information only raises the stakes for law enforcement officers, whose reputations can be permanently damaged by public accusations of dishonesty.[29]

In the last decade, pages of ink have been spilled explaining the failure of law enforcement officials, including prosecutors, to discover, report, and disclose “Giglio material” to criminal defendants, as well as the pitfalls and shortcomings of the Giglio Doctrine itself.[30]  Almost nothing has been written, however, about the application of the Giglio Doctrine to law enforcement officers and the problems presented when officers are not afforded an opportunity to be heard.  To that end, the purpose of this Article is to explain the grave problems presented by Giglio to law enforcement personnel, the roadblocks faced by officers in holding prosecutors accountable for abuse of Giglio, and the amplified harm presented to law enforcement officers by North Carolina’s Giglio Bill.

I. A Perpetrator Claiming Immunity

Considering the career-ending harm presented by Giglio letters, one might expect strong substantive and procedural safeguards to protect against “mistakenly or unfairly” subjecting an officer to an adverse Giglio determination.[31]  But this is not the case.  There is no process in North Carolina, or most other states, through which officers can present evidence in their defense, explain their actions, cross examine their accusers, or otherwise contest or appeal a Giglio impairment.[32]  There is no requirement that officers even be provided notice before a Giglio determination is made.[33]  Occasionally, officers are completely blindsided when, without warning, they receive a Giglio letter indicating they will never be called again to testify on behalf of the state.[34]  If a Giglio letter is false, unfair, made in bad faith, based on incorrect or mistaken information, or simply the product of a grudge, there is nothing an officer can do.[35]  Once officers are subject to a Giglio impairment, they are permanently unable to testify in criminal cases, and are frequently either terminated or relegated to restrictive duty status.[36]

Because officers have no recourse, prosecutors and other officials have often abused the Giglio Doctrine as a pretext for retaliation.[37]  For instance, in the District of Columbia, the police department asked the prosecutor’s office to make Giglio determinations to facilitate the firing of officers who were otherwise protected from termination by the statute of limitations on their misconduct.[38]  In Washington state, an officer claimed that he was improperly subject to a Giglio determination when the department wanted to punish him without navigating the obstacles of the formal disciplinary process.[39]  In Texas, “police officers accused the Ellis County district attorney of labeling one of their colleagues a [Giglio] cop in order to help the police chief fire the officer.”[40]  In Arizona, a district attorney was accused of using a Giglio letter to retaliate against two Phoenix officers to cover up the questionable actions of an investigator.[41]  In Oregon, a deputy was placed on a Giglio list despite being cleared of any wrongdoing after allegedly butting heads with prosecutors.[42]  In Tennessee, a district attorney issued a Giglio letter after two law enforcement officers blew the whistle on police department corruption.[43]  In Macon County, North Carolina, after purportedly making misstatements about his law enforcement experience during a campaign rally, a candidate for sheriff received a Giglio letter from his local district attorney, who happened to be a financial supporter of his opponent.[44]  With no avenue to challenge a prosecutor’s decision, and unable to afford an attorney, many officers are forced to leave law enforcement and find new careers.[45]

Law enforcement officers in other states have also sued district attorneys for sending false or inaccurate Giglio letters, but with mixed success.[46]  Prosecutors have “quasi-judicial” immunity, which bars claims arising from activities “intimately associated with the judicial phase of the criminal process.”[47]  This immunity applies even where a prosecutor acts maliciously or with an unlawful purpose.[48]  In defense of writing Giglio letters, district attorneys have leaned heavily on this immunity to defend against the publication of Giglio letters that would expose ordinary citizens to civil liability for defamation or tortious interference.[49]

In Savage v. Maryland,[50] an officer alleged that a district attorney sent a Giglio letter to his employer in retaliation for the officer raising concerns about the district attorney’s use of racial epithets.[51]  The Giglio letter allegedly resulted in the officer’s termination.[52]  Purporting to adhere to the Supreme Court’s decision in Imbler v. Pachtman,[53] the U.S. Court of Appeals for the Fourth Circuit in Savage determined that the district attorney’s conduct was entitled to absolute immunity because, in the court’s view, “[d]ecisions regarding witness testimony—which witnesses to call, whether potential witnesses are credible, and how to proceed in the face of credibility questions—are a core prosecutorial function, directly tied to the conduct of a criminal trial.”[54]

Similarly, in Roe v. City & County of San Francisco,[55] a police officer alleged that after he circulated a legal memorandum criticizing prosecutorial conduct, the prosecutor stopped calling him as a witness, determined that there would be no prosecutions of the officer’s cases without corroborating evidence, and communicated that decision to the officer’s state employer—all of which led to the officer being reassigned because he no longer could “complete [his] duties.”[56]  The officer sued, alleging retaliation for speaking out in violation of the First Amendment.[57]  But that claim, the U.S. Court of Appeals for the Ninth Circuit concluded, was barred by absolute prosecutorial immunity.[58]  The prosecutor’s failure to prosecute the officer’s cases, the court reasoned, was fully protected: “[t]here can be no question that the nature of the decision not to prosecute is ‘intimately associated with the judicial phase of the criminal process.’”[59]  The prosecutor’s assessment of the officer’s credibility would be similarly protected, whether “accurate or not.”[60]

Because Giglio letters essentially end an officer’s career, extending absolute immunity to the publication of Giglio letters weaponizes Giglio and transforms prosecutors into the ultimate arbiters of who can, or cannot, be law enforcement officers in a particular jurisdiction.  What the courts in Roe and Savage failed to acknowledge is the important difference between a prosecutor deciding who to call as a witness in a pending or identifiable prosecution and communicating with an officer’s supervisor before a criminal proceeding even exists.  The key difference is whether the prosecutor’s actions concern case-related advocacy.  While the former is a necessary task directly tied to a judicial proceeding, the latter is inherently administrative and advisory in nature and is, by definition, not intimately associated with the “judicial phase” of a criminal process before a “judicial phase” exists in the first instance.[61]  In recent years, courts have correctly identified this distinction and accordingly declined to extend absolute immunity to the publication of Giglio letters.[62]

In Beck v. Phillips,[63] a former police officer sued the county district attorney for defamation.[64]  The district attorney issued a Giglio letter claiming that the officer had lied about the circumstances surrounding the officer’s wife’s death.[65]  The Iowa Supreme Court concluded that while the prosecutor’s decision not to prosecute cases involving the officer was entitled to absolute immunity, sending a Giglio letter to the officer’s employer was not.[66]  The court characterized the latter as an “administrative function” of “merely advising local law enforcement authorities on how future criminal prosecutions should be conducted and how his office would deal with those cases.”[67]  Because Giglio letters are “advis[ory]” in nature, the court determined that the publication of Giglio letters is “not a function to which absolute immunity attaches.”[68]

The Supreme Court of North Dakota reached a similar conclusion in Krile v. Lawyer.[69]  In that case, the district attorney sent a Giglio letter to the chief of police after finding two letters of reprimand and several poor performance evaluations in the officer’s personnel file.[70]  The Giglio letter indicated that the officer would not be called in any future prosecutions.[71]  The police department immediately terminated the officer.[72]  The officer sued the district attorney for defamation, but his complaint was dismissed.[73]  On appeal, the North Dakota Supreme Court determined that while a district attorney has immunity in deciding who to call as a witness, publishing Giglio letters to an officer’s employer does not fall “within the proper discharge of [a district attorney’s] duties as a [state attorney].”[74]  The court reasoned that “not every activity of a prosecutor is within a prosecutor’s official duties simply because it is performed by a prosecutor.”[75]  The court held that the district attorney’s Giglio letter amounted to an advisory letter on how she might act in future hypothetical prosecutions, and therefore, the court declined to extend absolute immunity to this “administrative” action.[76]

One of the latest federal appellate decisions concerning prosecutorial immunity for civil damages in the context of a Giglio letter is Stockdale v. Helper.[77]  There, two police officers sued a district attorney who emailed a Giglio letter to the city manager.[78]  The U.S. Court of Appeals for the Sixth Circuit described the letter as the result of an “old grudge” against two officers who blew the whistle on department corruption.[79]  The officers were immediately terminated.[80]  Once again, because “[n]o identifiable trial loomed” when the prosecutor sent the email, the court found that the district attorney was not entitled to immunity.[81]  Both sides appealed the Sixth Circuit’s decision on competing grounds, but the Supreme Court denied each party’s certiorari petitions.[82]

Unlike the Beck and Krile courts, the Stockdale court went one step further by attacking the substance of the Giglio letter itself.[83]  In Stockdale, the district attorney based her Giglio determination on an allegation that one of the officers used a credit card to enter a home and assault someone—events that purportedly occurred ten years before the operative Giglio determination.[84]  Despite extensive briefing, the district attorney failed to justify “how these musty accusations—upon which she did not act in bringing a prosecution—would amount to [Giglio] material in all future cases.”[85]  The Stockdale court explained that a district attorney’s obligations under Giglio do not apply to “generic evidence about prior bad acts with only a ‘tenuous connection’ to a pending case.”[86]  No less importantly, the court stated, the accusations against the officers were already public, and prosecutors are under no constitutional obligation to disclose information that is “readily available to the defense from another source.”[87]  Protecting such communications, the court reasoned, risks stretching prosecutorial immunity “beyond reasonable bounds.”[88] 

No North Carolina state court—or statute—has addressed what liability can attach from the publication of a preemptive Giglio letter.  But the North Carolina Court of Appeals has tacitly acknowledged that preemptive Giglio letters may not be subject to prosecutorial immunity.  The recent In re Washington County Sheriff’s Office[89] decision is instructive.  In that case, a trial court judge issued an order sua sponte directing the State to disclose investigative materials concerning a particular officer in “any criminal matter” in which the State intended to call the officer as a witness.[90]  On appeal, the Court of Appeals vacated the trial court’s ruling, concluding that it was an improper advisory opinion made in anticipation of future “theoretical” criminal prosecutions involving the officer.[91]  While the decision in In re Washington County was limited to a Giglio determination made by a trial court (as opposed to a prosecutor), the decision stands for the proposition that preemptive Giglio letters are advisory in nature and are therefore not sufficiently associated with the “judicial phase of the criminal process” to give rise to prosecutorial immunity.[92]

II. North Carolina’s Giglio Bill

In the aftermath of the brutal murder of George Floyd,[93] North Carolina signed Senate Bill 300 into law on September 2, 2021.[94]  The Giglio Bill’s overriding objective is to combat police violence and hold officers accountable for unreasonable uses of force.[95]  To that end, the Giglio Bill places an affirmative obligation on law enforcement officers to intervene when unreasonable force is utilized by another officer,[96] encourages alternative methods of conflict resolution,[97] and places mental health and the use of force at the forefront of officer training.[98]  Its comprehensive reforms allowed the Giglio Bill to garner support from across the political spectrum, including the North Carolina Conference of District Attorneys.[99]  These reforms are well taken and represent a step in the direction towards meaningful reform of policing in North Carolina.

Among other provisions, the Giglio Bill directs the North Carolina Criminal Justice Standards Division of the Department of Justice (the “Division”) and the North Carolina Criminal Justice and Training Standards Commission (the “Commission”) to collect and maintain information about officer conduct, including, for example, uses of force (the “Critical Incident List”).[100]  The Giglio Bill also directs the Division to collect reports identifying any officer subject to a Giglio impairment (the “Giglio Database”).[101]

In a section entitled “Requirement to Report Material Relevant to Testimony,”[102] any officer who has been informed that he or she “may not be called to testify at trial based on bias, interest, or lack of credibility” must notify the Division within thirty days.[103]  The official making the Giglio determination must also notify and provide a copy of the Giglio letter to the Division within thirty days.[104]  Once notified, the Division is directed to provide written notice of an officer’s Giglio status to the head of any future law enforcement agency to which an officer’s certification is transferred, as well as the district attorney in that agency’s prosecutorial district.[105]  If an officer subject to a Giglio impairment has his or her certification transferred to a state agency, the Division is directed to notify every elected district attorney in every prosecutorial district in North Carolina of the officer’s Giglio impairment.[106]  These notification obligations extend until the Giglio impairment is withdrawn,[107] which almost never occurs.[108]

The Giglio Bill does not create any standardized procedures for deciding when to issue a Giglio determination, what factors or evidence to consider, or whether to allow an officer to present evidence in his or her defense.  There is no requirement that officers be provided notice before a Giglio determination is made, thereby eliminating any opportunity to contest accusations of Giglio impairment.  Even if an officer is afforded a meeting, the Giglio Bill does not require that an officer be informed of the evidence being considered by an official in anticipation of a Giglio determination.  There is also no requirement that the Division be informed of the reasoning behind a Giglio impairment.  Instead, the Giglio Bill permits officials to make Giglio determinations in complete secrecy without notifying officers that Giglio impairments are being considered.

Rather than create a uniform set of Giglio guidelines or define “Giglio material,”  each district attorney’s office, sheriff’s office, and police department must develop its own policies and procedures relating to Giglio determinations.[109]  These policies and procedures are generally not made available either to the public (absent a public records request) or to the officers involved in a Giglio investigation.[110]  Without a transparent set of uniform procedures governing the Giglio process or an overriding definition of “Giglio material,” Giglio determinations are left to the “eye of the beholder,” creating situations where some officers may be subject to Giglio determinations, while others may not—even if they engage in the same or similar conduct.[111]  Furthermore, the lack of clear Giglio procedures leaves officers without any means to ensure that Giglio determinations are made in good faith after impartial consideration of the relevant evidence.[112]

The Giglio Bill also expands the number of individuals permitted to make Giglio determinations.  Pursuant to N.C. Gen. Stat. § 17C-16 and § 17E-16, “agency heads”—meaning police chiefs and sheriffs, in addition to district attorneys and judges—are permitted to make Giglio determinations about their officers and report those officers to the Division without ever notifying their subordinates that Giglio determinations were ever being considered.[113]  On one hand, police chiefs and sheriffs need to report untruthful conduct on behalf of their officers to the appropriate authorities in order to hold those officers accountable and to ensure that district attorneys are able to fulfill their constitutional obligations under Giglio.  Being untruthful is not the same as being Giglio impaired, however, and most police chiefs and sheriffs are not lawyers and do not have formal legal education concerning the North Carolina Rules of Evidence, the Federal Rules of Evidence, or the Giglio decision and its progeny.[114]  Without that educational foundation, the Giglio Bill creates an environment ripe for erroneous Giglio decisions.

Compounding the harm presented by this complete lack of safeguards, the Giglio Bill creates no avenue through which an officer can challenge either a Giglio impairment decision or the Division’s republication of a Giglio decision to future employers.  In fact, the omission of any sort of due process from N.C. Gen. Stat. § 17C-16 and § 17E-16 appears to be intentional.[115]  Pursuant to the newly created N.C. Gen. Stat. § 17E-15, law enforcement officers are able to challenge decisions placing them on the Critical Incident List, but officers are inexplicably unable to challenge a Giglio determination or contest the Division’s future Giglio notifications.[116]  Instead, the Division is instructed to republish Giglio determinations—even if those determinations are defamatory, retaliatory, or otherwise erroneous—to an officer’s future employers with no oversight or any way for the officer to appeal.[117]

North Carolina’s failure to include any safeguards or judicial oversight to the Giglio determination process is incomprehensible because an explicit avenue for appeal was included for the Critical Incident List, and because, as proof it can be done, at least two other states have adopted laws or procedures that provide protection against the impact of a Giglio determination.[118]  For example, a California statute[119] mandates that an adverse employment action “shall not be undertaken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or [because] the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland.”[120]  Similarly, in New Jersey, the Attorney General’s Office issued a law enforcement directive that discourages general-purpose Giglio determinations and allows police officers to seek review of a prosecutor’s determination from the prosecutor or the Office of the Attorney General.[121]  Importantly, the New Jersey directive makes clear that such review “shall not interrupt or interfere with the prosecutor’s obligation to disclose information in the ongoing case.”[122]

Giglio letters do not appear to have any analogue in any other public employment setting in North Carolina.  In fact, pursuant to N.C. Gen. Stat. § 150B-43, every licensed professional in North Carolina, from barbers to foresters, has a statutorily guaranteed mechanism by which to obtain judicial review of an occupational licensing board’s decision affecting their employment.[123]  Now, even though Giglio letters almost always result in their termination, law enforcement officers may be the only exception to the rule guaranteeing judicial review of state-sanctioned decisions affecting a person’s employment.

III.  The Giglio Bill and North Carolina’s Constitution

Given the glaring absence of due process, transparency, or safeguards, the Giglio Bill is likely unconstitutional.  

Article I of the North Carolina Constitution declares thirty-seven rights to its citizens, some of which have no analogue in the United States Constitution and predate those declared in the Bill of Rights.[124] 

Article I, Section 19 of the North Carolina Constitution provides:

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.[125]

North Carolina’s “law of the land” clause is synonymous with due process of law, both in terms of substance and procedure.[126]  It is well established that “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and opportunity to be heard are essential.”[127]  This is especially true where a state attaches a “badge of infamy” to a citizen.[128]

The creation of Giglio databases with no mechanism for appeal or removal has already been deemed constitutionally problematic by courts in other jurisdictions.  In 2017, the Philadelphia district attorney began compiling a “Do Not Call List” of officers who, in the district attorney’s view, were “tainted” and subject to Giglio impairments.[129]  With no avenue to challenge the district attorney’s determination, the officers filed a lawsuit arguing that their placement on the “Do Not Call List” served as a stain on their professional reputations and violated their rights to due process.[130]  Labeling the “Do Not Call List” a “blacklist of sorts,” the Commonwealth Court of Pennsylvania determined that the officers had a constitutionally protected interest in their professional reputation, which required notice and an opportunity to be heard prior to their placement on the “Do Not Call List.”[131]  The court explained that “Giglio [does not] eliminate the right of innocent officers to be afforded a meaningful opportunity to argue why they should not be placed on the List or why they should be removed.”[132]

There is no greater “badge of infamy”[133] for law enforcement officers than a Giglio letter.  Not only do N.C. Gen. Stat. § 17C-16 and § 17E-16 serve to perpetuate and memorialize “badges of infamy” on citizens in perpetuity without providing them any opportunity to be heard, but the Giglio Bill directs the state to take action and affirmatively republish Giglio determinations, even if those determinations are plainly erroneous, defamatory, or the product of mistaken information.  With no avenue to present evidence in their defense or challenge a Giglio determination, law enforcement officers, unlike every other licensed professional in North Carolina, are not afforded any opportunity to defend their good name, reputation, honor, or integrity.  This arbitrary and intentional omission of basic due process runs afoul of North Carolina’s strong traditions of robustly protecting the rights of its citizens to work, earn a living, and defend their reputations.

Unlike other states’ constitutions, the North Carolina Constitution also contains an—until very recently—often overlooked provision protecting the right of North Carolinians to enjoy the “fruits of their own labor.”[134]  Article I, Section I of the North Carolina Constitution provides:

We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.[135]

The “fruits of labor” provision, as it is often called, was added to the North Carolina Constitution in 1868, shortly after the Civil War.[136]  Passed the same year that North Carolina ratified the Fourteenth Amendment to the United States Constitution, the “fruits of labor” provision was likely intended to “strike an ideological blow at the slave labor system.”[137]  North Carolina courts, however, largely ignored this provision until the mid-twentieth century, when it was applied to the State’s professional licensing powers.[138]  The “fruits of labor” provision then lay dormant again until 2014, when the North Carolina Supreme Court applied it to a city ordinance capping towing fees.[139]

In 2018, the North Carolina Supreme Court published a precedent-setting decision in Tully v. City of Wilmington,[140] expanding the “fruits of labor” provision into the public employment context.[141]  In that case, a Wilmington police officer was denied a promotion after he failed a mandatory examination that tested an officer’s knowledge of the law.[142]  His exam answers were correct based on the current state of the law, but he failed the exam because the answer key was outdated.[143]  Written department policy laid out the promotion and examination procedures and provided that candidates could appeal any portion of the selection process, so the officer sought to appeal his test results.[144]  The City of Wilmington refused to hear the officer’s appeal, determining the test results “were not a grievable item” and that nothing could be done.[145]  The North Carolina Supreme Court determined that this decision violated the officer’s constitutional rights under Article I, Section 1, reasoning that the “fruits of labor” provision applies “when a governmental entity acts in an arbitrary and capricious manner toward one of its employees by failing to abide by promotional procedures that the employer itself put in place.”[146]

But Tully has far broader implications.  The Tully court indicated that the “fruits of labor” clause protects a person’s “right ‘to engage in any of the common occupations of life,’ unfettered by unreasonable restrictions imposed by actions of the state or its agencies.”[147]  In addition to failing to follow promotional policies, the North Carolina Supreme Court has stated that the “fruits of labor” clause is violated where the State “unfairly imposes some stigma or disability that will itself foreclose the freedom to take advantage of employment opportunities.”[148]  For these reasons, the North Carolina Court of Appeals suggested that the North Carolina Constitution is more protective of the rights of North Carolinians than the United States Constitution.[149]

The mandated republication of an officer’s Giglio status directly to all future employers undoubtedly imposes “some stigma or disability” on an officer that will “foreclose the freedom to take advantage of employment opportunities.”[150]  A Giglio determination is a scarlet letter for any law enforcement officer.  The lack of procedural safeguards, due process, judicial review, or any requirement that notice be provided to an officer before a Giglio determination is made, creates an environment ripe for erroneous Giglio determinations, and renders the republication of Giglio decisions unfair to the officers involved.  With no avenue to challenge the Division’s republication of a Giglio determination, even where a Giglio decision is premised on mistaken information, officers are unable to remove (or even contest) the stigma and disability placed upon them by the state and are deprived of their right to pursue their chosen profession free from unfair governmental interference.


The citizens of North Carolina have an undeniably compelling interest in identifying dishonest officers, holding them accountable, and prohibiting them from serving as agents of the state.  There is no place in law enforcement for dishonest officers.  In light of the ongoing epidemic of police violence in the United States, the Giglio Bill makes important reforms to policing in North Carolina.  These measures are well-taken and represent a step in the right direction, although there remains much work to be done to repair the relationship between law enforcement and communities across North Carolina and the United States.

A delicate balance exists between a prosecutor’s constitutional obligation to produce exculpatory impeachment evidence to criminal defendants and an officer’s constitutional rights to due process and to enjoy the fruits of his or her labor.  The notion that this balance cannot be struck, or that a prosecutor’s decision must always be afforded the greatest deference, is unsupported by current law and common sense.

Even though other states have created at least temporary solutions to the constitutional problems presented by Giglio, North Carolina failed to follow their example.  The push for holding law enforcement accountable should not stop with the “blue line.”  District attorneys, all the way down to the newest beat cop, need to answer for their actions and omissions.  Without providing an opportunity to be heard or rebut an adverse Giglio determination, even where that determination is based on mistaken information or is a transparent pretext for retaliation, the Giglio Bill deprives officers of a central tenet of North Carolina’s organized system of justice: the right to be free from arbitrary and unfair government action.  The provisions enacted by the Giglio Bill need meaningful reform to ensure that police officers receive the same constitutional protections as every other citizen in North Carolina.

      *.   B.A., Rhodes College; J.D., University of North Carolina School of Law.

      [1].   Giglio v. United States, 405 U.S. 150, 150–51 (1972).

      [2].   Id. at 151.

      [3].   373 U.S. 83 (1963).

      [4].   Giglio, 405 U.S. at 151–53.

      [5].   Id. at 154–55.

      [6].   405 U.S. 150 (1972).

      [7].   Id. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).

      [8].   United States v. Bagley, 473 U.S. 667, 675 (1985).

      [9].   Id. at 682; see Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stan. L. Rev. 743, 748 (2015).

     [10].   Bagley, 473 U.S. at 678–81.

     [11].   See John G. Douglass, Fatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 Emory L.J. 437, 495 (2001) (explaining the exculpatory nature of a witness’s testimony that is both “inculpatory and critically important to the prosecution’s case”).

     [12].   See Krile v. Lawyer, 2020 ND 176, ⁋ 5, 947 N.W.2d 366, 371 (2020) (defining “Giglio impairment” and citing other cases referencing the phrase).

     [13].   See The Implications of Brady-Giglio for Law Enforcement, Nat’l Inst. for Jail Operations, https://jailtraining.org/the-implications-of-brady-giglio-for-law-enforcement/ (last visited Feb. 26, 2022); John V. Berry, Giglio Issues for Law Enforcement Officers, Police L. Blog (Feb. 4, 2014), https://policelawblog.com/blog/2014/02/giglio-issues-for-law-enforcement-officers.html.

     [14].   See Letter from Randy Hagler, President, N.C. State Lodge Fraternal Order of Police, to Reps. Kristen Baker, Howard Hunter, III, & John Szoka (Dec. 7, 2020) [hereinafter Letter from Randy Hagler], https://www.ncleg.gov/documentsites/committees/house2019-200/Final%20Report/Report%20Addendum/03_FOP%20Legger%20Regarding%20Draft%20Recommendations.pdf (addressing “[t]he issue of the increased issuance of Giglio letters by district attorneys nationwide”); see also Krile, 2020 ND at ⁋⁋ 6–7, 947 N.W.2d at 371 (discussing the “Giglio letter” at issue in the case).

     [15].   Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).  Giglio only applies to “key” witnesses rather than “minor witnesses.”  See, e.g., Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1355–56 (11th Cir. 2011); United States v. Buchanan, 891 F.2d 1436, 1444 (10th Cir. 1989).

     [16].   See, e.g., Stockdale v. Helper, 979 F.3d 498, 504 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021); Singer v. Steidley, No. 13–CV–72–GKF–TLW, 2014 WL 580139, at *12–13 (N.D. Okla. Feb. 12, 2014); Complaint, Aquino v. City of Charlotte, No. 3:21-cv-00618 (W.D.N.C. Nov. 12, 2021); see also David Sinclair, After Being Fired From Moore County Sheriff’s Office, Ex-Deputy Wins ‘Vindication’, Pilot (Feb. 4, 2020), https://www.thepilot.com/news/after-being-fired-from-moore-county-sheriff-s-office-ex-deputy-wins-vindication/article_801f60c6-47bf-11ea-966d-c77af0be4873.html; Jessi Stone, Former Deputy Sues DA Over Giglio Order, Smoky Mountain News (Dec. 1, 2021), https://smokymountainnews.com/news/item/32638-former-deputy-sues-da-over-giglio-order.

     [17].   See Letter from Randy Hagler, supra note 14 (noting that after a Giglio violation is alleged and reported, “the only hearing is after the fact and on the issue of disqualifying the officer from serving” and requesting that “procedures be established by statute that will allow an officer an investigation into the factual basis of the alleged dishonesty and a hearing”); see also NC Watchdog Reporting Network, DAs Warn Police About Untrustworthy Officers but Won’t Share with Public, Carolina Pub. Press (June 3, 2021), https://carolinapublicpress.org/46100/das-warn-police-about-untrustworthy-officers-but-wont-share-with-public/ (describing the secret nature of Giglio letters).

     [18].   See United States v. Lujan, 530 F. Supp. 2d 1224, 1255 (D.N.M. 2008) (“The precise time at which Brady or Giglio evidence must be disclosed will thus depend on the specific nature of the evidence at issue.”).

     [19].   Shea Denning, Sheriffs’ Association Releases Report Recommending Giglio-Related Reforms, Among Others, Univ. N.C. Sch. Gov’t: N.C. Crim. L. (Nov. 18, 2020, 6:15 AM), https://nccriminallaw.sog.unc.edu/sheriffs-association-releases-report-recommending-giglio-related-reforms-among-others/; Alan J. Keays, Tarnished Badge: Dishonesty and Ethical Issues Dog Dozens of Vermont Police Officers, VTDigger (Dec. 16, 2020), https://vtdigger.org/2020/12/16/brady-giglio-letters-vermont-police/.

     [20].   Keays, supra note 19.

     [21].   See        Denning, supra note 19; Keays, supra note 19; see also Letter from Randy Hagler, supra note 14 (“For working officers, [a Giglio letter] is a career ender.”).

     [22].   See, e.g., Tracee Wilkins, Prince George’s State’s Attorney Keeps List of Officers Not Credible to Testify for the State, NBC Wash. (Apr. 14, 2021), https://www.nbcwashington.com/news/local/prince-georges-county/prince-georges-states-attorney-keeps-list-of-officers-not-credible-to-testify-for-the-state/2640833/.

     [23].   Id.

     [24].   Khaleda Rahman, Full List of Black People Killed by Police in 2021, Newsweek (Dec. 28, 2021, 7:00 AM), https://www.newsweek.com/black-people-killed-police-2021-1661633.

     [25].   Brady v. Maryland was the initial Supreme Court decision holding that a state must produce exculpatory evidence to criminal defendants.  373 U.S. 83, 87 (1963).  This holding was expanded by Giglio to include evidence that could be used to impeach a witness’ character for truthfulness.  Giglio v. United States, 405 U.S. 150, 153–55 (1972).

     [26].   See, e.g., Brady List, Brady List, https://giglio-bradylist.com/; Denning, supra note 19; NC Watchdog Reporting Network, supra note 17.

     [27].   Steve Reilly & Mark Nichols, Hundreds of Police Officers Have Been Labeled Liars. Some Still Help Send People to Prison., USA Today (Oct. 14, 2019, 8:20 PM), https://www.usatoday.com/in-depth/news/investigations/2019/10/14/brady-lists-police-officers-dishonest-corrupt-still-testify-investigation-database/2233386001/; Wilkins, supra note 22.

     [28].   See, e.g., Helen Greenia, Baltimore Publishes Police ‘Do Not Call List’ – Officers Not to Be Called to Testify Because of Misdeeds, Davis Vanguard (Nov. 1, 2021), https://www.davisvanguard.org/2021/11/baltimore-publishes-police-do-not-call-list-officers-not-to-be-called-to-testify-because-of-misdeeds/.

     [29].               The Implications of Brady-Giglio for Law Enforcement, supra note 13.

     [30].   See Riley E. Clafton, Comment, A Material Change to Brady: Rethinking Brady v. Maryland, Materiality, and Criminal Discovery, 110 J. Crim. L. & Criminology 307, 309–11, 332 (2020); Jerry P. Coleman & Jordan Lockey, Brady “Epidemic” Misdiagnosis: Claims of Prosecutorial Misconduct and the Sanctions to Deter It, 50 U.S.F. L. Rev. 199, 224 (2016); David Crump, Brady v. Maryland, Attorney Discipline, and Materiality: Failed Investigations, Long-Chain Evidence, and Beyond, 45 Hofstra L. Rev. 515, 527 (2016); David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203, 209 (2011); Jason Kreag, The Jury’s Brady Right, 98 B.U. L. Rev. 345, 345–46 (2018); Christopher T. Robertson & D. Alex Winkelman, Incentives, Lies, and Disclosure, 20 U. Pa. J. Const. L. 33, 43–45 (2017); Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove That Assumption Wrong, 80 Fordham L. Rev. 537, 539–40 (2011); Somil Trivedi & Nicole Gonzalez Van Cleve, To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct, 100 B.U. L. Rev. 895, 920 (2020).

     [31].   Abel, supra note 9, at 781.

     [32].   Id.

     [33].   See id.

     [34].   See, e.g., Jessi Stone, Macon Sheriff Candidate Gets Giglio Order, Smoky Mountain News (Sept. 19, 2018), https://smokymountainnews.com/archives/item/25548-macon-sheriff-candidate-gets-giglio-order (describing an officer in Cherokee County who was “caught off-guard” after receiving a Giglio letter).

     [35].   See Abel, supra note 9, at 781.

     [36].   See, e.g., Complaint, Aquino v. City of Charlotte, No. 3:21-cv-00618 (W.D.N.C. Nov. 12, 2021) (discussing case of an officer unable to testify after receiving a Giglio letter).

     [37].   See Abel, supra note 9, at 781; Singer v. Steidley, No. 13–CV–72–GKF–TLW, 2014 WL 580139, at *13 (N.D. Okla. Feb. 12, 2014).

     [38].   Abel, supra note 9, at 782; Conviction Integrity Project, Establishing Conviction Integrity Programs in Prosecutors’ Offices 26 n.16 (2012).

     [39].   Abel, supra note 9, at 782 (citing Wender v. Snohomish County, No. C07-197Z, 2007 WL 3165481 (W.D. Wash. Oct. 24, 2007)).  Officer Wender’s federal civil rights suit resulted in reinstatement and a $812,500 settlement.  Id.

     [40].   Id. (citing Telephone Interview with Patrick M. Wilson, Cnty. & Dist. Att’y, in Ellis Cnty., Tex. (Apr. 8, 2014)).

     [41].   Patti Epler, Cop Chop, Phoenix New Times (Oct. 9, 2003, 4:00 AM), https://www.phoenixnewtimes.com/news/cop-chop-6407071.

     [42].   Whitney Woodworth, Marion County Prosecutor’s List Questions Honesty, Reliability of More than 40 Officers, Statesman J. (Apr. 17, 2019, 4:00 PM), https://www.statesmanjournal.com/story/news/crime/2019/04/17/oregon-marion-county-prosecutor-question-law-enforcement-honesty-reliability/3019431002/.

     [43].   Stockdale v. Helper, 979 F.3d 498, 501–02 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).

     [44].   Stone, supra note 34.  In August 2018, Eric Giles, a sheriff’s deputy running to be sheriff of Macon County, was issued a Giglio letter by District Attorney Ashley Welch, who happened to be a financial supporter of his opponent.  Id.  According to the Smoky Mountain News, Mr. Giles made misstatements about his prior law enforcement experience during his campaign for sheriff.  Id.  District Attorney Welch’s Giglio letter made vague references to internal “procedures” which governed her decision, but Mr. Giles was not given an opportunity to be heard prior to District Attorney Welch’s decision.  Id.  According to District Attorney Welch, her office’s Giglio “procedures” were voluntarily put in place by her in 2015 after she attended a training conference for district attorneys in Raleigh.  Id.  Mr. Giles has now filed a lawsuit against Ashley Welch in Clay County Superior Court, and District Attorney Welch removed to the Western District of North Carolina.  Stone, supra note 16; see Notice of Removal, Giles v. Hindsman, No. 1:21-cv-00256 (W.D.N.C. Sept. 27, 2021).

     [45].   Abel, supra note 9, at 780–81.

     [46].   See, e.g., Beck v. Phillips, 685 N.W.2d 637 (Iowa 2004) (dismissing claims arising from the decision not to prosecute cases involving a former officer but allowing tort claims arising from the content of a Giglio letter); Singer v. Steidley, No. 13-CV-72-GKF-TLW, 2014 WL 580139, at *54 (N.D. Okla. Feb. 12, 2014) (dismissing defamation claims but allowing First Amendment retaliation claim).

     [47].   Imbler v. Pachtman, 424 U.S. 409, 420, 430 (1976).

     [48].   Id. at 427.

     [49].   See, e.g., Stockdale v. Helper, 979 F.3d 498 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021) (holding that prosecutor was protected by qualified immunity).

     [50].   896 F.3d 260 (4th Cir. 2018).

     [51].   Id. at 266.

     [52].   Id.

     [53].   424 U.S. 409 (1976).

     [54].   Savage, 896 F.3d at 270 (citing Imbler, 424 U.S. at 426.

     [55].   109 F.3d 578 (9th Cir. 1997).

     [56].   Id. at 580–82.

     [57].   Id.

     [58].   Id. at 583.

     [59].   Id. (citations omitted).

     [60].   Id. at 584.

     [61].   Stockdale v. Helper, 979 F.3d 498, 502–03 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).  Furthermore, in Kalina v. Fletcher, the Supreme Court emphasized the importance of limiting prosecutorial immunity only to those actions undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his or her role as advocate for the state.  See 522 U.S. 118, 127 (1997).  The Court has held that, when determining whether an action is entitled to prosecutorial immunity, a court must examine the “nature of the function performed, not the identity of the actor who performed it.”  Forrester v. White, 484 U.S. 219, 229 (1988).  To that end, in Kalina, the Court evaluated each act in filing criminal charging documents separately, explaining how a prosecutor could be immune for filing the “information and the motion for an arrest warrant” but not for “personally attesting to the truth of the averments in the certification.”  Kalina, 522 U.S. at 129.  This principle is perhaps best illustrated by the determination that the senior law enforcement official in the nation—the Attorney General of the United States—is protected only by qualified, rather than absolute, immunity when engaged in the performance of national defense functions rather than prosecutorial functions.  Mitchell v. Forsyth, 472 U.S. 511, 520 (1985).

     [62].   Stockdale, 979 F.3d at 502–03.

     [63].   685 N.W.2d 637 (Iowa 2004).

     [64].   Id. at 641.

     [65].   Id.

     [66].   Id. at 645.

     [67].   Id.

     [68].   Id. (citations omitted).

     [69].   947 N.W.2d 366 (N.D. 2020).

     [70].   Id. at 370.

     [71].   Id. at 371.

     [72].   Id.

     [73].   Id. at 374.

     [74].   Id. at 379.

     [75].   Id.

     [76].   Id.

     [77].   979 F.3d 498 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).

     [78].   Id. at 501–02.

     [79].   Id. at 500.

     [80].   Id. at 501–02.

     [81].   Id. at 503.

     [82].   Stockdale v. Helper, 979 F.3d 498, 504 (6th Cir. 2020), cert. denied, 211 L. Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021) (quoting Hogan v. Hanks, 97 F.3d 189, 191 (7th Cir. 1996)).

     [83].   Id. at 502–05.

     [84].   Id. at 504.

     [85].   Id.

     [86].   Id.

     [87].   Id.

     [88].   Id.

     [89].   843 S.E.2d 720 (N.C. Ct. App. 2020).

     [90].   Id. at 721.

     [91].   Id. at 723.

     [92].   Stockdale, 979 F.3d at 502–03.

     [93].   Travis Fain, NC Legislature Approves Raft of Criminal Justice Reforms, WRAL.com, https://www.wral.com/nc-legislature-approves-raft-of-criminal-justice-reforms/19841111/ (Aug. 25, 2021, 11:52 AM).

     [94].   Act of Sept. 2, 2021, 2021 N.C. Adv. Legis. Serv. 138 (codified in sections of N.C. Gen. Stat. chs. 14, 15A, 17A, 17C, 17E, 122C, 132, 143B, 150B, 153A, 160A). The rest of this Article will cite to the relevant sections of the North Carolina General Statute accordingly.

     [95].   Danielle Battaglia, Cooper Signs 3 Laws Focused on Police Accountability but Says North Carolina Needs to Go Further, Times News (Sept. 3, 2021, 12:46 PM), https://www.thetimesnews.com/story/news/2021/09/03/cooper-signs-3-laws-focused-police-accountability-but-says-north-carolina-needs-go-further/5714870001/.

     [96].   N.C. Gen. Stat. § 15A-401(d1).

     [97].   See generally N.C. Gen. Stat. § 17C-6(a) (effective Oct. 1, 2021) (requiring officer training on specific issues such as community policing and minority sensitivity); N.C. Gen. Stat. § 17E-4(a) (effective Oct. 1, 2021) (same); see also N.C. Gen. Stat. § 14-4(c) (effective Oct. 1, 2021) (providing for alternatives to punishment for violations of certain local ordinances when a person charged produces proof of a good-faith effort to seek assistance to address underlying factors related to mental health, homelessness, unemployment, or substance abuse).

     [98].   See generally N.C. Gen. Stat. § 17C-6(a) (effective Oct. 1, 2021) (requiring officer educating and training to develop knowledge and increase awareness of mental health and wellness strategies); N.C. Gen. Stat. § 17E-4(a) (effective Oct. 1, 2021) (same).

     [99].   See Emily Schmidt, Gov. Cooper Signs Bipartisan Police Reform Bill, but Some Say More Needs To Be Done, Daily Tar Heel (Sept. 7, 2021, 5:21 PM), https://www.dailytarheel.com/article/2021/09/city-sb300-police-reform-bill-update; Battaglia, supra note 95.

   [100].   See N.C. Gen. Stat. § 17C-15 (effective Oct. 1, 2021).

   [101].   Id. § 17C-16(a), (f).  While the Giglio Bill does not explicitly create a “database” for officers subject to Giglio impairments, the Division will have to create some system for logging and recording the names of all officers who are Giglio impaired in order to carry out its statutory directive.

   [102].   N.C. Gen. Stat. § 17C-16(a) (effective Oct. 1, 2021).

   [103].   Id.

   [104].   Id. § 17C-16(b)–(c).

   [105].   Id. § 17C-16(d).

   [106].   Id.

   [107].   Id. § 17C-16(e).

   [108].   See Abel, supra note 9, at 788 (noting that any concessions prosecutors give officers regarding being on the Brady list, including reversing the decision altogether, are entirely voluntary).

   [109].   See N.C. Gen. Stat. § 17C-16 (effective Oct. 1, 2021) (providing no guidelines, procedures, or definitions relating to Giglio guidelines or material).

   [110].   Some larger prosecutorial districts have released their Giglio policies and procedures.  See Disclosure of Exculpatory Evidence in Charlotte NC, Carolina Att’ys: Carolina L. Blog (Jan. 12, 2019), https://www.carolinaattorneys.com/blog/disclosure-of-exculpatory-evidence-in-charlotte-nc/.  For instance, the Mecklenburg County District Attorney’s Office has established a Giglio committee to make decisions concerning whether a particular officer is Giglio impaired.  Id.  But their policy does not contain any provisions allowing an officer to challenge or appeal a Giglio determination.  See id.  North Carolina is not alone in its lack of a statewide policies and procedures for making Giglio determinations.  For instance, Oregon’s Giglio rules vary county to county, which results in prosecutors “continually adjusting what it takes to label an officer a ‘Brady [or Giglio] cop.’”  Whitney Woodworth & Hannah Kanik, ‘Brady Lists’ of Untruthful Oregon Police Officers Inconsistent County to County, Statesman J. (July 13, 2020, 6:59 AM), https://www.statesmanjournal.com/story/news/2020/07/13/brady-list-oregon-police-misconduct-cases-prosecutors-disclosure-exculpatory-evidence/5011457002/ (emphasis on “Brady” added).

   [111].   John V. Berry, Due Process for Officers Placed on Giglio or Brady Lists, Police L. Blog (Jan. 29, 2018, 9:29 PM), https://policelawblog.com/blog/2018/01/developments-regarding-giglio-lists.html.

   [112].   Id.

   [113].   See N.C. Gen. Stat. § 17C-16(a)(1) (effective Oct. 1, 2021); N.C. Gen. Stat. § 17E-16(a)(1) (effective Oct. 1, 2021); see also Roy Cooper, N.C. Dep’t of Just. Mutual Aid Agreements Between Law Enforcement Agencies in North Carolina 3 (rev. ed. 2014) (explaining that the head of an agency could be “the chief or sheriff”).

   [114].   Christie Gardiner, Policing Around the Nation: Education, Philosophy, and Practice 32 (2017), https://www.policefoundation.org/publication/policing-around-the-nation-education-philosophy-and-practice/.   In 2017, “17.1% of CEOs (chiefs and sheriffs) ha[d] a high school diploma, 19.0% ha[d] a two-year degree, 28.7% ha[d] a four-year degree, 32.1% ha[d] a master’s degree, and 3.0% ha[d] a doctorate or other terminal degree (for example, J.D or Psy.D.).”  Id.  What’s more, the Giglio Bill does not require that police chiefs or sheriffs undergo any training concerning Giglio and its progeny.

   [115].   Notably, the North Carolina Sheriff’s Association recommended that officers be afforded an administrative hearing to challenge a Giglio determination.  See N.C. Sheriffs’ Ass’n, Report on Law Enforcement Professionalism 9–10 (2020), https://nccriminallaw.sog.unc.edu/wp-content/uploads/2020/11/NCSA-Report-on-Law-Enforcement-Professionalism-FINAL-10-21-20.pdf.

   [116].   N.C. Gen. Stat. § 17E-15(d) (effective Oct. 1, 2021).  In In re Washington County Sheriff’s Office, the North Carolina Court of Appeals had an opportunity to opine whether any due process is required before the issuance of a Giglio determination but declined to address the question as it was not necessary to the resolution of the case.  In re Washington Cnty. Sheriff’s Off., 843 S.E.2d 720, 721 (N.C. Ct. App. 2020).  On appeal, the officer asserted that his due process rights were violated because the trial court failed to conduct any hearing prior to unilaterally directing the state to turn over investigative materials about the officer in all future criminal trials where the officer is called as a witness.  Id. at 721–22.  Instead, the Court of Appeals vacated the trial court’s order as an improper advisory opinion.  Id. at 723.

   [117].   N.C. Gen. Stat. § 17C-16(d) (effective Oct. 1, 2021).

   [118].   See, e.g., Cal. Gov’t Code § 3305.5(a) (2014) (mandating that officers cannot be fired solely for being on a Brady list); Attorney General Law Enforcement Directive Establishing County Policies to Comply with Brady v. Maryland and Giglio v. United States from Gurbir S. Grewal, N.J. Att’y Gen., to Cnty. Prosecutors 8–9 (Dec. 4, 2019) [hereinafter Directive Establishing County Policies], www.nj.gov/oag/dcj/agguide/directives/ag-Directive-2019-6.pdf (directing New Jersey prosecutors to make a Giglio decision on a case-by-case basis and allowing officers to review the determination).

   [119].   Cal. Gov’t Code § 3305.5(a) (2014).

   [120].   Id. (emphasis added).

   [121].   Directive Establishing County Policies, supra note 118, at 8–9.

   [122].   Id. at 8.

   [123].   See        N.C. Gen. Stat. § 150B-43 (1973) (“Any party or person aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to the party or person aggrieved by statute or agency rule, is entitled to judicial review of the decision under this Article . . . .”).

   [124].   Grant E. Buckner, North Carolina’s Declaration of Rights: Fertile Ground in A Federal Climate, 36 N.C. Cent. L. Rev. 145, 149–53 (2014).

   [125].   N.C. Const. art. I, § 19.

   [126].   Johnston v. State, 735 S.E.2d 859, 870 (N.C. Ct. App. 2012) aff’d, 749 S.E.2d 278 (N.C. 2013).

   [127].   Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

   [128].   Id. (quoting Wieman v. Updegraff, 344 U.S. 183, 191 (1952)).

   [129].   Fraternal Ord. of Police Lodge No. 5 ex rel. McNesby v. City of Phila., No. 1295 C.D. 2019, 2021 WL 5182646, at *1, *4 (Pa. Commw. Ct. Nov. 9, 2021).

   [130].   See id. at *6–7.

   [131].   Id. at *33–37.

   [132].   Id. at *27.

   [133].   Constantineau, 400 U.S. at 437 (quoting Wieman, 344 U.S. at 191).

   [134].   N.C. Const. art. I, § 1.

   [135].   Id.

   [136].   Mole’ v. City of Durham, 866 S.E.2d 773, 777 (N.C. Ct. App. 2021) (citing John V. Orth, The North Carolina State Constitution with History and Commentary 38 (1993)).

   [137].   Orth, supra note 136, at 38.

   [138].   See Mole, 866 S.E.2d at 777.  These decisions recognized a person’s ability to earn a livelihood as a protected constitutional right and struck down licensing restrictions not rationally related to public health, safety, or welfare and not reasonably necessary to promote a public good or prevent a public harm.  See, e.g., Roller v. Allen, 96 S.E.2d 851, 854 (N.C. 1957); State v. Ballance, 51 S.E.2d 731, 735 (N.C. 1949).

   [139].   King v. Town of Chapel Hill, 758 S.E.2d 364, 371 (N.C. 2014).

   [140].   810 S.E.2d 208 (N.C. 2018).

   [141].   Id. at 213.

   [142].   Id. at 211.

   [143].   Id.

   [144].   Id.

   [145].   Id.

   [146].   Id. at 215.

   [147].   Id. at 214 (quoting Presnell v. Pell, 260 S.E.2d 611, 617 (N.C. Ct. App. 1979)).

   [148].   Presnell, 260 S.E.2d at 617 (citing Board of Regents v. Roth, 408 U.S. 564, 573 (1972)).

   [149].   Mole’ v. City of Durham, 866 S.E.2d 773, 777 (N.C. Ct. App. 2021) (“We must again consider whether the analogous clause in the North Carolina Constitution is more protective and extends the guarantee of equal protection in the public employment context.  As with due process, the fact that the Fourteenth Amendment does not provide a cause of action for Sergeant Mole’ does not necessarily foreclose the possibility that our state Constitution could yield a remedy: the United States Constitution is the floor of constitutional protections in North Carolina, not the ceiling.”).

   [150].               Presnell, 260 S.E.2d at 617.

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


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


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.


  • 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.


  • 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.


  • 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.


  • 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.

9 Wake Forest L. Rev. Online 53

Lynn S. Branham*

This Essay enumerates three reasons for abandoning the prevailing practice of utilizing the label “offender” when referring to a person who has committed a crime.  The Essay next identifies and debunks reasons that have been cited for persisting in referring to a person as an “offender.”  The Essay then explores the question of what term or terms could supplant this label and profiles signs of emerging support for desisting from the convention of calling people “offenders.”  One of the themes that permeates this Essay is that the language we use when referring to people can thwart systemic and cultural change – in this context, a change in how people who have committed a crime are viewed and treated, both within the criminal-justice system and by society at large.

For years, I had no compunction about calling people in the criminal-justice system “offenders.”  References to “offenders” were sprinkled throughout my writings, both my books and articles.  Then my world changed. 

Embarking on studies for a Master of Science in Restorative Practices, I began delving deeply into a construct unlike any typically encountered in the world of law, policy, procedures, and programs in which I have been immersed throughout my career as a law professor and criminal-justice reformer.  In this new construct marked by what are termed “restorative practices,”[1] a person who causes harm to someone else can learn about the depth and breadth of that harm during a facilitated dialogue with the person harmed and others who offer insights and feedback about the nature and gravity of the harm.  The group of people gathered together then identifies what steps the person responsible for the harm needs to take to help remedy it.  “Restorative justice” is the term used when referring to this reparative function of restorative practices.[2]  Often, though, restorative practices are utilized proactively – to avert conflict and harm and build and strengthen relationships.[3]  In sum, whether implanted in criminal-justice systems, juvenile-justice systems, schools, workplaces, or other realms of human activity and interaction, restorative practices offer the mesmerizing possibility of prioritizing harm reduction and repair, relationships, reconciliation, and healing.

In exploring the far-reaching potential of restorative practices, I have come to recognize the discordance, though, between its aims and some of the terminology employed by those of us in the field of restorative practices.  While all people share a responsibility to refrain from using words that inflict harm on others, those who endorse restorative practices would, one would think, more readily and intentionally model how to carry out that responsibility.  Instead, we continue to employ a harm-inflicting label when referring to a person who has committed a crime.  We choose to follow the convention of calling that person an “offender” instead of choosing to lead by our example.

Part I of this Essay enumerates three of the principal reasons for abandoning the prevailing practice of labelling people as “offenders.”  First, the practice harms those who are the object of this label.  Second, pigeonholing someone as the “offender” contravenes values that lie at the core of restorative practices.  And third, the onus cast by this stigmatizing label is an impediment to the systemic and cultural change for which the proponents of restorative practices are advocating and striving.  These reasons not only counsel the abandonment of this terminology by those whose work centers on restorative practices but also support the jettisoning of this label across society, including by judges, criminal-justice officials, and members of the media.

Part II of the Essay identifies and then debunks what some restorative practitioners have espoused as reasons why they persist in referring to a person as an “offender.”  Part III then explores the question of what term or terms could supplant the term “offender.”  After profiling in Part IV the decisions of what, at this point, is a small cadre of criminal-justice officials to abandon the practice of calling people “offenders,” the Essay concludes with an invitation to join those of us choosing to desist from calling people a name that is injurious, the verbal equivalent of a scarlet letter, and antithetical to core restorative values.


A.    Reason #1: Halting the Harmful Impact on Those Referred to as “Offenders”

When trying to ascertain whether a term we use when referring to someone is injurious, the starting point is the people subject to that term.  When grappling after the commencement of my restorative-practices studies with the implications and effects of my own and others’ use of the term “offender,” I spoke to two of those individuals.[4]  Both are in higher education, one at a university and the other at a law school.  Both work extensively with, and on behalf of, people within the criminal-justice system.  And both have homicide convictions for which they were previously imprisoned.  These two men, whose identities I will keep confidential, were in unison in describing how denigrating – how dehumanizing – it feels to be referred to as “offender” or “ex-offender.”  One reported that these words made him feel like an “inanimate object.”  The other confided: “The label is like the ‘N’ word.  It impacts you negatively.”  He added that being typecast as an “offender” imparted the message that he “deserved the condemnation of society no matter what he did” now.

Stigmatizing labels can also have pernicious effects on others, negatively altering how they perceive and treat people who are the objects of the labels.  For example, when undergraduate students, professional counselors, and counselors-in-training were surveyed in one study, they were more likely to support isolating those alluded to as “the mentally ill” from others in the community than they were when these individuals were referred to as “people with mental illnesses.”[5]  A concern emanating from studies like this one is that the pejorative label “offender” will trigger the proverbial “vicious cycle” in which condemnatory attitudes and pariah-like treatment fostered by that label propel some of those labeled “offender” to act in conformance with it, further fueling reliance on the opprobrium-casting label.

Most of the criminal-justice and restorative-practices experts from whom I also elicited feedback about the term “offender” during my graduate studies mirrored these concerns.  A common theme that suffused this feedback aligned with what one of the individuals who has been on the receiving end of this label had said to me earlier: “People are more than whatever they did.”  For example, the director of a nonprofit legal organization in Illinois that represents people in prison decried the denomination of people as “offenders,” calling this label “offensive as it defines people by the worst day of their lives, rather than as whole people.”[6]  A Research Scholar at Yale Law School (now a federal public defender) also objected to the debasement of others through what she considered “dehumanizing” and “reductive” language that suggests that they are “inherently bad.”[7]  The terms “offender” and “ex-offender,” she noted, “define an entire human being by a single bad act.”[8]

Research has confirmed what others have experienced, witnessed, or intuited about stigmatizing labels – that they have harmful effects on those who are their objects.  They evoke shame and color the labeled individuals’ self-perceptions.[9]  The people subject to a negative label begin to perceive themselves in ways that accord with that label.

The corrosive effects of stigmatizing labels are not solely internal, however, as concerning as those internal effects might be.  The cultivation of negative stereotypes through the aspersions cast by stigmatizing labels also has overt, discernible adverse impacts.  The labels heighten the risk, for example, that people will act in accordance with those stereotypes about them, a phenomenon psychologists refer to as a “self-fulfilling prophecy.”[10]  Thus, when females take a math test in a setting in which they know they are perceived by others as less competent in this subject, they will not perform as well as they do in an environment not pervaded by this stereotype.[11]

Against the backdrop of such research, hearing others banter about “offenders” might, one would think, trigger not just cringes, but alarm.  Calling people by a name that, they report, makes them feel “subhuman” and like “an animal” might lead some of them, one might reasonably postulate, to behave in ways that correspond with others’ conveyed perception of them – that their past crime has made them, forever, a beast in society’s eyes.  As a former judge with expertise in restorative practices said to me about the parallel label “criminal,” “If we call them criminals long enough, they will believe it.”[12]  And, I might add, they may act like it.  Researchers have found that the labeling of a person as a delinquent or criminal increases the risk of reoffending.[13]

B.    Reason #2: Acting in Accord with the Values Embedded in Restorative Practices

In a world in which cost-benefit analyses abound, invoking values as a touchstone for decision-making might seem, to some, a bit touchy-feely.  But restorative practitioners have unabashedly acknowledged that values provide the bedrock – the underpinning – for restorative practices and justice.[14]  New Zealand’s Ministry of Justice, for example, considers the recognition of the values and virtues underlying restorative justice to be a “best practice.”[15]  The alignment of “standards of practice” with those values constitutes another best practice.[16]

Examining what are touted as restorative values, though, reveals a great disconnect between many of those values and the practice of calling someone “offender.”  For example, according respect to others is a value that the restorative community trumpets.[17]  Criminologist Howard Zehr, considered one of the pioneers of restorative justice, has, in fact, singled out “respect for all” as the premier restorative value, one that transcends all others.[18]  Explaining that without respect, justice cannot be restorative, Zehr cites not only the need to view people with respect but to also treat them with respect.[19]  And therein is the rub.  Calling people with criminal convictions a name they find “deeply offensive”[20] – a verbal branding of sorts from their perspective – is the antithesis of the respect that, we are told, undergirds restorative practices.

Experts in restorative practices describe “interconnectedness” as another foundational value underpinning restorative practices.[21]  This value reflects the recognition that, as Zehr has noted, “we are all connected to each other” and are adversely affected by disruptions in this “web of relationships.”[22]  This value propels restorative practices towards inclusion.  Due to our interconnectedness, excluding others is considered “literally throwing away a part of ourselves.”[23]  Yet by using the derisive label “offender” when speaking to or about another person, our speech becomes a means of exclusion, in derogation of restorative precepts.  This process of viewing and labelling a category of individuals as different in a way that makes them inferior to ourselves is known as “othering.”[24]  By exerting what has been termed “stigma power,”[25] we are, though perhaps unwittingly, helping to keep those pegged as “offenders” down and away rather than fully connected with us and others.[26] 

Categorizing people as “offenders” abridges other values identified as bedrocks of restorative practices.  To cite but one more example here, restorative practices is grounded on a value that some in the field of restorative practices describe as “hope”[27] and others as “transformation.”[28]  Whatever the name ascribed to this value, the premise is that we can all grow, heal, and change for the better.  A label like “offender” that suggests, to some and likely many people, that a person is “inherently bad” is at odds with this premise.[29]

C.    Reason #3: Removing an Impediment to Systemic and Cultural Change

The words we utter, sometimes none too carefully, make a difference.  They can have an impact, either positive or negative, on the individuals with whom we are conversing.  They can affect the dynamic within our families and workplaces, fueling discord or fostering harmony.  And they can have culture-producing and culture-changing effects, affecting not only the tenor of our conversations but how we view and treat others within our society. 

Research, including in the fields of neurophysiology and cognitive neuroscience, points to a linkage between the language we employ and our thoughts – how we perceive and categorize other people or things.[30]  In short, “the words we use to describe what we see . . . actually determine what we see.”[31]  If anyone doubts this truth, consider how likely it would be that people with intellectual disabilities – people who are “differently-abled” – would be integrated and welcomed into classrooms, workplaces, sports, and elsewhere were they still called, as they once were, “imbeciles” and “retards.”[32]

I shared my view, born of experience and buttressed by research, about the power of words when speaking with one of the persons mentioned earlier who has a criminal conviction about what it feels like to be called “offender.”  His concurring response captured that power: “We can’t change systems without changing our language.” 

The proponents of restorative practices, of which I am one, profess that we are striving to create a “new reality,”[33] one no longer marked by fractured relationships, unrepaired harm, and barriers that divide and injure us all.  We are seeking, in short, nothing less than systemic and cultural change.  If we and others who decide to join in this endeavor are serious about effectuating this change and not just posturing, the words we use will, as has occurred when referring to people with disabilities, need to match our vision.


One of the reasons why the use of the term “offender” remains so prevalent in the field of restorative practices, as well as within criminal-justice systems and in general conversations, is that it has become an entrenched practice – a norm.  As the International Institute for Restorative Practices noted when explaining why its books and training materials are replete with references to “offender,” the term “offender” is “simply the language that has been traditionally used in restorative justice.”[34]  That is true.  But, of course, that leaves open the question of why those who subscribe to restorative precepts continue to follow this tradition.  The “this is the way we have always done it” argument for continuing to employ anti-restorative language seems incongruent for those on the frontlines of working to uproot the status quo in criminal-justice systems through the importation of restorative practices into them. 

So behind the citation to tradition as the reason for continuing to call people “offenders” must lurk some other explanation for the reticence to abandon what many consider a disparaging term.  One reason asserted for utilizing the word “offender” as a descriptor in the criminal-justice context is the ease of using that term.[35]  Personal convenience, though, is hardly the end-all of linguistic practices.  Thus, in other instances, the ease of attaching a certain label to a category of individuals has given way to the transcendent values served when declining to call people a name they consider debasing.  “African American” and “person of color” are, for example, more unwieldy terms than “Negro,” yet they have largely supplanted this simpler term considered offensive by many. 

Those inured to the term “offender” have also remonstrated that the word is not intended as “a label” and that they would never call someone “offender” to his or her face.[36]  Why this latter argument could have any force eludes me.  If the convention today was still to follow the opprobrious past practice of referring to people with intellectual disabilities as – it gives me pause to even utter this word – “retards,” the damaging effects of this terminology would not hinge on whether we called people “retards” to their faces or behind their backs.  Regardless of to whom we uttered this disparaging word, referring to people as “retards” would harm both we, the speakers, and our audience, detracting from the ability of all of us to recognize, respect, and embrace the full humanity of the people we have typecast in such a derogatory way.  And if, as occurs with the word “offender,” our writings, speeches, media interviews, and conversations were littered with the denigrating descriptor “retard,” we would be deluding ourselves in pretending that those who are the object of our derogatory label are unaware of, and not harmed by, it.

A final reason, shared with me by a fellow graduate student, for continuing to refer to someone who caused harm or committed a crime as the “offender” is that this label is “accurate.”[37]  However, one of the credos of restorative practices belies the verity of this point.  Those who work in the field of restorative practices underscore that it is important to “separate the deed from the doer.”[38]  This maxim reflects the conviction that while our actions at times warrant condemnation, we remain human beings, albeit imperfect ones.  Contrary to the aspersions cast by the label “offender,” we remain more – much more – than just the sum of our misdeeds. 


Abandoning the pejorative label “offender” leaves unresolved what the replacement term or terms would be.  One formerly incarcerated person, Eddie Ellis, has entreated us to call individuals like him what they are – people: “[W]e are asking everyone to stop using these negative terms and to simply refer to us as PEOPLEPEOPLE currently or formerly incarcerated, PEOPLE on parole, PEOPLE recently released from prison, PEOPLE in prison, PEOPLE with criminal convictions, but PEOPLE.”[39] Other variants with a personhood focus abound, such as, on the aggregate level, “people who caused the harm” and, on the individual level, “the person who caused the harm.”

I once thought that it was incumbent on me to find “the term” to recommend for infusion into restorative practices, criminal-justice systems, and everyday parlance.  But I have since realized that there is not just a single suitable replacement term for the label “offender.”  As Ellis’s fervent plea illustrates, a replacement term may be, or need to be, contextually based.  When referencing a restorative-justice conference, the “person who caused the harm” might be most apropos.  When discussing the challenges faced when returning to a community after confinement in prison, on the other hand, the appropriate phraseology might be a “person formerly incarcerated,” “returning citizen,”[40] or some other term that does not, unlike the words “offender” or “ex-offender,” depreciate or abnegate someone’s humanness.  And when discussing the loss of voting and other rights triggered by a criminal conviction, the discussion might center on the curtailment of the rights of “people convicted of a crime.”

There remains, though, the anticipated objection that all these replacement terms are more cumbersome than the pat term “offender” or its derivative “ex-offender.”  One rejoinder, mentioned earlier, to this objection is that the lure of simplicity, while understandable, should not usurp more fundamental interests and needs, such as the need to avoid inflicting harm through one’s words. 

A second counterpoint to this objection is that the concern that replacement terms for “offender” are too long, unwieldy, and impractical is exaggerated.  One of the touted replacement terms, “person who caused harm,” has, for example, only two more syllables than the word “offender.”  Those two syllables are, in the words of a fellow law professor with expertise in restorative practices, “worth it.”[41] 

For me personally, though, the most persuasive refutation of the verity of the assertion that using a word other than “offender” will unduly cramp our writings and conversations has been my own experience.  After beginning to be dogged several years ago by concerns about the dissonance between, on the one hand, the objectives of, and values underlying, restorative practices and, on the other, adherence to the tradition of calling a person the “offender,” I decided to purge this word from my speeches, conversations, and writings, including the most recent edition of two of my books.[42]  What I discovered, as have others who have striven to desist from using the “o-word,”[43] is that using replacement terms for “offender” is quite doable.[44] 


I am not the only one discomfited by the practice of alluding to someone as the or an “offender.”  In 2016, the U.S. Department of Justice’s Office of Justice Programs announced a new policy: to dispense with what Assistant Attorney General Karol Mason described as “useless and demeaning labels,” like “offender” and “felon,” that “freeze people in a single moment of time,” “drain their sense of self-worth,” and “perpetuate a cycle of crime.”[45]  Under this policy, phrases like “person who committed a crime” and “individual who was incarcerated” have supplanted the repudiated terminology.

The state of Washington’s Department of Corrections has followed suit, announcing its plan to phase out the word “offender” and instead refer to “individuals” or, depending on the context, “students,” “patients,” or other names that avoid shackling a person to a past misdeed.[46]  Secretary John Wetzel, the head of Pennsylvania’s Department of Corrections, has also issued a statewide directive to eliminate the word “offender” from agency discourse.[47]  In his view, the adoption of new vocabulary when referring to people convicted of crimes is a “value shift” without which “corrections reform will always come up short.”[48]  Secretary Wetzel explained:  “Words count. . .  They count when we say ‘You’re a failure’ or ‘I love you’ or ‘You are smart’ or ‘You are worthless.’  They also count when we say ‘I respect your humanity, and I believe in your capacity to change.’”[49]

When issuing the name-changing directive, Secretary Wetzel acknowledged that we need not, and should not, ignore the pain a crime has caused.  But he challenged those who are wedded to calling people “offenders” to deepen their perspective: “[M]ustn’t we also acknowledge the path to less communal pain is the transformation of these same individuals?  If labels don’t further THAT goal, then we have no business using them.”[50]

Other government officials and entities have joined in voicing their opposition to referring to a person as “offender.”  For example, the Board of Supervisors for the City and County of San Francisco recently adopted a resolution calling for a halt to this labeling practice.[51]  In lieu of what the Board termed “pejorative language” that has “harmful impacts,” the Board endorsed “person-first language,” such as “formerly incarcerated person” or person who was or is “justice involved.”[52]


I remember puffing up my chest when I was a child after someone said something hurtful to me.  “Sticks and stones can hurt my bones, but words can never hurt me,” I resolutely announced.  This statement may have been a valiant effort to muster and display inner strength, but it was a canard, devoid of any truth.  Words can and do hurt.  Badly.

The label “offender” is one of these words, inflicting injury on those who are denominated, through this appellation, as incorrigible miscreants.  Using depreciating and derogatory terms when referring to another human being is also at odds with core values that are the foundation of restorative practices – values such as respect, interconnectedness, hope, and transformation.  These values are not the sole province of restorative practices but transcendent values that most people would likely say they endorse and hope to personify.

A third ill effect of the convention of typecasting people as “offenders” is that it helps thwart systemic and cultural change – an alteration in how people who have committed a crime are viewed and treated, both within the criminal-justice system and by society at large.  Referring to people in ways that denude them of their humanness makes it difficult, if not impossible, to fuel and foster widespread receptivity to restorative processes that, at their core, are founded on an unflagging commitment to accord respect to every human being.

So what do we do?  And who are “we”?

“We” are each of us.  Those of us who tout the value and benefits of restorative practices must commit to becoming better role models.  We must recognize and admit the incongruity between, on the one hand, being in a field whose raison d’être is, in part, to prevent and remedy harm and, on the other hand, blithely referring to people with a term that causes harm.  We must decide, individually (as I have done) as well as collectively, to abandon what has become the rote practice of labelling a person “offender.”  We must instead commit to using humanizing language when referring to people who have caused harm, such as opting to call them as much as possible what they are – “people.” 

Court and criminal-justice officials, members of the media, academics, and others, many of whom may not yet even be conversant with restorative practices, should likewise embark on a critical examination of the words they employ when describing people who are in, or once were in, the criminal-justice system.  A litmus test to apply when conducting this examination is whether a term “offers dignity, humanity as well as hope.”[53]  The label “offender” does not meet this test.  It never has.

*     Visiting Professor of Law, Saint Louis University School of Law.  B.A., University of Illinois; J.D., University of Chicago Law School; M.S., International Institute for Restorative Practices (IIRP).  I would like to thank Professor Molly Walker Wilson for her feedback on this Essay and IIRP faculty members, Dr. Craig Adamson, Dr. John Bailie, and Mary Jo Hebling, as well as fellow attorneys and IIRP students, Tina Murua and Professor Emily Scivoletto, for their comments on course-related papers that were the prelude to the Essay.  I would also like to extend my gratitude to the people from whom I obtained qualitative data, integrated into this Essay, about the term “offender” during an action-research project I conducted under IIRP’s auspices.  Finally, I am indebted to the students at the Wake Forest Law Review whose work has made it possible for me to share information and ideas that can impact how we think and talk about those who have committed crimes.

        [1].    For a synopsis of the history of restorative practices, the conceptual framework and research in which restorative practices are rooted, and examples of prototypical restorative processes, see Ted Wachtel, Defining Restorative, Int’l Institute for Restorative Practices (2016), https://www.iirp.edu/images/pdf/Defining-Restorative_Nov-2016.pdf.

        [2].    For a succinct overview of the theoretical underpinnings of restorative justice and its purposes, see Howard Zehr, The Little Book of Restorative Justice (rev. & updated ed. 2015).  For details on how to structure restorative-justice conferences, one of the mechanisms for implementing restorative justice, see Ted Wachtel et al., Restorative Justice Conferencing (2010).

        [3].    Wachtel, supra note 1, at 1.  For details about peacemaking circles, one of the classic means for effectuating the proactive aims of restorative practices, see Carolyn Boyes-Watson & Kay Pranis, Heart of Hope Resource Guide (2010); Kay Pranis, The Little Book of Circle Processes (2005).

        [4].    This outreach was part of an action-research project undertaken during one of my graduate courses on restorative practices.  The focus of action research is on the researcher’s own practices and how they can be improved.  For additional information about action research, see Jean McNiff & Jack Whitehead, All You Need to Know About Action Research (2d ed. 2011).

        [5].    Darcy Haag Granello & Todd A. Gibbs, The Power of Language and Labels: “The Mentally Ill” Versus “People with Mental Illnesses,” 94 J. Counseling & Dev. 31, 34–36 (2016).  When “the mentally ill” terminology was used, the survey respondents were also more likely to espouse the view that those with mental illnesses “need the same kind of control and discipline as a young child.”  Id. at 34.

        [6].    Posting of Alan Mills, Exec. Dir., Uptown People’s Law Ctr., to [email protected] (Feb. 26, 2016, 1:02 PM CST) (on file with author).

        [7].    Posting of Sarah Baumgartel, Senior Liman Fellow, Yale Law Sch., to [email protected] (Feb. 26, 2016, 8:43 AM EST) (on file with author).

        [8].    Id.

        [9].    See Rebecca Gray, Shame, Labeling and Stigma: Challenges to Counseling Clients in Alcohol and Other Drug Settings, 37 Contemp. Drug Probs. 685, 686, 688 (2010); Stephanie Madon et al., The Accumulation of Stereotype-Based Self-Fulfilling Prophecies, 115 J. Personality & Soc. Psychol.: Interpersonal Rel. & Group Processes 825, 841 (2018).

      [10].    See, e.g., Madon et al., supra note 9, at 826 (referring to “good evidence” stereotypes can have “self-fulfilling effects” on those subject to them); see also id. at 843 (noting the abundant research on the “power of beliefs to create reality”).

      [11].    Belle Derks et al., The Neuroscience of Stigma and Stereotype Threat, 11 Group Processes & Intergroup Rels. 163, 165, 169 (2008); see also id. at 169 (discussing fMRI (functional magnetic resonance imaging) studies revealing differences in brain activity in women reminded, before taking math tests, of the stereotypical view that women have inferior math skills).

      [12].    Telephone Interview with Sheila Murphy, Co-Dir., Restorative Justice Project, John Marshall Law Sch. (Feb. 15, 2016).

      [13].    Gwenda M. Willis, Why Call Someone by What We Don’t Want Them to Be? The Ethics of Labeling in Forensic/Correctional Psychology, 24 Psychol., Crime & L. 727, 728 (2018).

      [14].    See, e.g., Ministry of Justice, Restorative Justice: Best Practice In New Zealand 30 (2011), , https://www.justice.govt.nz/assets/Documents/Publications/RJ-Best-practice.pdf (“It cannot be emphasized too strongly that process and values are inseparable in restorative justice.  For it is the values that determine the process, and the process that makes visible the values.”); Zehr, supra note 2, at 46 (“The principles of restorative justice are useful only if they are rooted in a number of underlying values. . . . [T]o apply restorative justice principles in a way that is true to their spirit and intent, we must be explicit about these values.”).

      [15].    Ministry of Justice, supra note 14, at 31.

      [16].    Id.

      [17].    See, e.g., Corr. Serv. Can., Restorative Justice Principles and Values (2012), https://www.csc-scc.gc.ca/restorative-justice/003005-0006-eng.shtml; Ministry of Justice, supra note 14, at 32; Office on Drugs & Crime, U.N., Handbook on Restorative Justice Programmes 8 (2006), https://www.unodc.org/pdf/criminal_justice/Handbook_on_Restorative_Justice_Programmes.pdf.

      [18].    Zehr, supra note 2, at 47 (“[O]ne basic value is supremely important:  respect.  If I had to put restorative justice into one word, I would choose respect: respect for all – even those who are different from us, even those who seem to be our enemies.”).

      [19].    Id.

      [20].    Charlie Ryder, Why Are the Labels “Offender” and “Ex-Offender” So Offensive?, Discovering Desistance (Stephen Farrall ed., Feb. 11, 2013) https://blogs.iriss.org.uk/discoveringdesistance/2013/02/11/820/ (reporting what it feels like to be the object of a “permanent label based purely on the worst thing you have ever done”).

      [21].    See, e.g., Ministry of Justice, supra note 14, at 33; Zehr, supra note 2, at 46.

      [22].    Zehr, supra note 2, at 46.

      [23].    Boyes-Watson & Pranis, supra note 3, at 17 (“[T]his principle reminds us that there are no throw-away kids or people.  We cannot drop out, kick out, or get rid of anything without literally throwing away a part of ourselves.”).

      [24].    Susan J. Stabile, Othering and the Law, U. St. Thomas L.J. 381, 382–83 (2016); see also Jonathan Todres, Law, Otherness, and Human Trafficking, 49 Santa Clara L. Rev. 605, 607 (2009) (describing the “Self/Other dichotomy” as fostering the “conception of a virtuous ‘Self’ and a lesser ‘Other’”).

      [25].    Bruce G. Link & Jo Phelan, Stigma Power, 103 Soc. Sci. & Med. 24, 24 (2014).

      [26].    See id. at 24–25 (describing two of the aims of stigma as “keeping people down” and “keeping people away”).

      [27].    See, e.g., Ministry of Justice, supra note 14, at 33.

      [28].    See, e.g., Corr. Serv. Can., supra note 17.

      [29].    See supra Subpart I.A.

      [30].    In addition to studies cited earlier in this essay, see Guillaume Thierry, Neurolinguistic Relativity: How Language Flexes Human Perception and Cognition, 66 Language Learning 690, 694 (2016).

      [31].    Adam Alter, Why It’s Dangerous to Label People, Psychol. Today (May 17, 2010), https://www.psychologytoday.com/us/blog/alternative-truths/201005/why-its-dangerous-label-people.

      [32].    Words Can Hurt, Global Down Syndrome Found., https://www.globaldownsyndrome.org/about-down-syndrome/words-can-hurt (last visited Aug. 14, 2019).

      [33].    See Ted Wachtel, Dreaming of a New Reality 3–5 (2013).

      [34].    Int’l Institute for Restorative Practices, IIRP Training Script: 2-Day Facilitating Restorative Conferences, Day 1, at 15 (Mar. 4, 2019) (on file with author).

       [35].    See, e.g.,Zehr, supra note 2, at 12 (describing the label as “simple” to use).

      [36].    See, e.g., Int’l Institute for Restorative Practices, supra note 34, at 15 (cautioning that the word “offender” should not be used when meeting with people who may participate in a restorative-justice conference and should only be used “to identify,” “not label.”).

       [37].    See Lynn S. Branham, Changing My Vocabulary: The Word “Offender” and Its Infliction of Harm 7 (Mar. 28, 2016) (unpublished M.S. course paper, International Institute for Restorative Practices) (on file with author).

      [38].    Marian Liebmann, Restorative Justice: How It Works 326 (2007).

      [39].    McGregor Smyth, Holistic is Not a Bad Word: A Criminal Defense Attorney’s Guide to Using Invisible Punishments as an Advocacy Strategy, 36 U. Toledo L. Rev. 479, 479 n.1 (2005) (quoting Eddie Ellis).

      [40].    Michael J. Newman & Matthew C. Moschella, The Benefits and Operations of Federal Reentry Courts, 64 Fed. Law., Dec. 2017, at 26, 27.  Judge Newman is a magistrate judge in the Southern District of Ohio.

      [41].    See Branham, supra note 37, at 18 (quoting Prof. Emily Scivoletto).  Professor Scivoletto is also Senior Assistant Dean for Student Affairs at UC-Davis School of Law.

      [42].    See Lynn S. Branham, The Law and Policy of Sentencing (10th ed. 2018); Lynn S. Branham, The Law and Policy of Sentencing and Corrections in a Nutshell (10th ed. 2017).

      [43].    Nancy G. La Vigne, People First: Changing the Way We Talk About Those Touched by the Criminal Justice System, Urban Wire: Crime and Just. (Apr. 4, 2016), https://www.urban.org/urban-wire/people-first-changing-way-we-talk-about-those-touched-criminal-justice-system.

      [44].    See id. (reporting that writing a research brief for the Urban Institute’s Justice Policy Center and the report of the Charles Colson Task Force on Federal Corrections revealed that eliminating the word “offender” from discourse is feasible); Willis, supra note 13, at 736 (reporting that writing and talking without using denigrating labels like “offender” has become “habitual and effortless”).

      [45].    Karol Mason, Guest Post: Justice Dept. Agency to Alter Its Terminology for Released Convicts, to Ease Reentry, Wash. Post (May 4, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/05/04/guest-post-justice-dept-to-alter-its-terminology-for-released-convicts-to-ease-reentry/.

      [46].    Loretta Rafay, Washington’s DOC Ends the Use of the Word “Offender,” Prison Voice Wash. (Nov. 3, 2016), https://prisonvoicewa.org/washingtons-doc-ends-the-use-of-the-word-offender.

      [47].    John E. Wetzel, Pennsylvania Dept. of Corrections to Discard Terms “Offender,” “Felon” in Describing Ex-Prisoners, Wash. Post (May 25, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/05/25/pennsylvania-dept-of-corrections-to-discard-terms-offender-felon-in-describing-ex-prisoners/.

      [48].    Id.

      [49].    Id.

      [50].    Id.

       [51].    S.F., Cal., Res. 336-19 (July 26, 2019), https://sfbos.org/sites/default/files/r0336-19.pdf.

       [52].    Id. at 1, 3.

      [53].    This test emanates from feedback I received during my action-research project from a law-enforcement official regarding my decision to abandon use of the term “offender,” supplanting it as much as possible with references to a “person” (such as “person with a criminal conviction”) or “people” (such as “people confined in jail”).  This official commented that the replacement terms “offer dignity, humanity as well as hope.”