Wake Forest Law Review
21Sep

Community Caretaking Function: A Doctrinal Overview

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By: Nick Christopherson

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

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

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

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

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

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

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

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

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

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

[3] Lampen, supra note 1.

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

[5] Id. at 10.

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

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

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

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

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

[11] Id.

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

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

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

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

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

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

[18] Id. at 1069.

[19] Id.

[20] Id. at 1070.

[21] Id. at 1068–1070.

[22] Id. at 1084.

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

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

[25] Id. at 1598.

[26] Id.

[27] Id.

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

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19Aug

Raising the Age and Raising the Budget: Why North Carolina’s Juvenile Justice Reinvestment Act Requires Full Funding

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10 Wake Forest L. Rev. Online 86

Holly Black*

I.  Introduction

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

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

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

II.  North Carolina’s Raise the Age Act

A.     Origins of the Act

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

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

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

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

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

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

B.    Under the Act

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

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

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

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

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

C.    Implementing the Act

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

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

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

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

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

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

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

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

D.    The Benefits of the Act

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

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

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

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

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

A.    Areas that Require Additional Funding

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

1.     The North Carolina Court System

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

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

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

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

2.     Prosecutors

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

3.     Juvenile Indigent Defense System

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

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

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

4.     Youth Development Centers (“YDCs”)

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

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

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

B.    Potential Solutions to the Funding Challenges

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

1.     Reduce Juvenile Incarceration Rates

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

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

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

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

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

2.     Reduce the Number of Juveniles Referred to Juvenile Court

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

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

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

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

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

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

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

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

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

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

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

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

IV.  Conclusion

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

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

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

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

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

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

      [4].   Blythe, supra note 2.

      [5].   Id.

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

      [7].   Blythe, supra note 2.

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

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

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

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

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

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

     [14].   Id.

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

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

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

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

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

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

     [21].   Horsch, supra note 11.

     [22].   Blythe, supra note 2.

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

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

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

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

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

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

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

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

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

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

     [33].   Id.

      [34].  Id. at  29.

     [35].   Id.

      [36].  Id. at 30.

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

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

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

     [40].   Id. at 1.

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

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

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

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

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

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

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

     [48].   Id.

     [49].   Id.

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

     [51].   Id.

     [52].   Id.

     [53].   Id. at 15.

     [54].   Id. at 10.

     [55].   Id. at 11.

     [56].   Id. at 18–19.

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

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

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

     [60].   Id.

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

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

     [63].   Id., app. a, at 4–5.

     [64].   Id., app. a, at 10–11.

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

     [66].   Id. at 13, 16.

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

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

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

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

     [71].   Id. at 13.

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

     [73].   Id., app. a., at 11.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     [93].   Id.

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

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

     [96].   Id.

     [97].   Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   [112].   Grossman, supra note 106.

   [113].   Id.

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

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

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

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

   [118].   Id. at 9.

    [119].   See id.

    [120].   Id.

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

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

    [123].   Id.

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

   [125].   Id.

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

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

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

   [129].   Grossman, supra note 106.

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

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

   [132].   Id.

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

   [134].   Id. at 9.

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

   [136].   Id., app. d, at 39-40.

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

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

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

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

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

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

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

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24Apr

U.S. Jails & Prisons Poorly Positioned to Prevent COVID-19 Spread

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Photo by Emiliano Bar on Unsplash

By Amanda Manzano

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

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

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

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

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

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

[2] Id.

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

[4] Id.

[5] Id.

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

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

[8] Id.

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

[10] Id.

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

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

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

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

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

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

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

[18] 18 U.S.C. § 3142(e)(1) (2018).

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

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

[21] Id.

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

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28Feb

Leap Day’s Lengthy, and Litigious, History

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By Nicole Tronolone

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[6] See id.

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

[8] Handwerk, supra note 5.

[9] Id.

[10] See id.

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

[12] See Doggett, supra note 11.

[13] Id.

[14] Id.

[15] Id.

[16] See Handwerk, supra note 5.

[17] Doggett, supra note 11.

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

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

[20] Id.

[21] See id.

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

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

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

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

[26] See Bryant, supra note 24.

[27] See id.

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

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

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

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

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

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

[34] Id. at 1088.

[35] 8 U.S.C. § 1101(a)(43)(F).

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

[37] Id. at 1085.

[38] 8 U.S.C. § 1101(a)(43)(F).

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

[40] Id.

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4Feb

Death by Distribution in North Carolina

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By Paul Fangrow

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

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

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

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

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

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

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

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

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

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

[3] NIH, supra note 1.

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

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

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

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

[8] N.C. Gen. Stat. § 14-18.4 (2019).

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

[10] NIH, supra note 1.

[11] NIH, supra note 1.

[12] NIH, supra note 1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[29] NIH, supra note 1.

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

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

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

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

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

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

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

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

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

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12Nov

Adnan Syed and the Right to Counsel

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By Amanda Manzano

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[7] Petition, supra note 3, at 3.

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

[9] Id. at 157.

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

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

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

[13] Supreme Court Procedures, supra note 11.

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

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

[16] See id.

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4Sep

As Free as a Bird: The Middle Finger and the First Amendment

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By Michael Johnston

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

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

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

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

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

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

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

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

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

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

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

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

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

[5] See id. at 1407–10.

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

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

[8] See id.

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

[10] See id.

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

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

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

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

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

[16] Id. at *7–8.

[17] Id.

[18] Id. at *6.

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

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

[21] Id.

[22] See id. at *9–12.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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3Sep

2020 Spring Symposium: Bail Reform (Archived)

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

 

Sponsored by:

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

Friday, January 31, 2020

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

Wake Forest University School of Law, Room 1312

CLICK HERE TO REGISTER NOW

CLE Credits: 4.75 Hours APPROVED

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

Panel Videos

Risk Assessment / Right to Counsel / Community Voice

Parking

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

Campus Map/Lunch Options

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

Event Description

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

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

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

Event Schedule

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

8:45 am – 9:00 am – Opening Remarks.

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

10:15 – 10:25 – Break

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

11:45 pm – 12:45 pm – Lunch

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

1:40 pm – 1:50 pm – Break

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

3:00 pm – Closing remarks

Panelist Bio’s and Panel Descriptions

Risk Assessment Panel

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

Panelists:

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

Stories of Reform Panel

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

Panelists:

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

Community Voice Panel

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

Panelists:

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

Right to Counsel Panel

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

Panelists:

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

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31Aug

Eradicating the Label “Offender” from the Lexicon of Restorative Practices and Criminal Justice

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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.

I.  REASONS TO DISCARD THE TERM “OFFENDER”

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.

II.  RATIONALES FOR THE LABEL “OFFENDER”

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. 

III.  REPLACEMENT TERMS FOR THE LABEL “OFFENDER”

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 PEOPLE.  PEOPLE 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] 

IV.  LEADING THE WAY: EMERGING SUPPORT FOR ABANDONING THE LABEL “OFFENDER”

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]

V.  CONCLUSION

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.”

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9Apr

Weekly Roundup – 4/1 – 4/5

Categories: 4th Cir. Blog Weekly Roundup
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By: Sophia Pappalardo & Kenya Parrish

United States v. James Michael Farrell

In this criminal case, Appellant was convicted after a jury trial for ten offenses of money laundering conspiracy, substantive money laundering, and obstruction of justice. Appellant was prosecuted for his role in an elaborate multi-state marijuana trafficking organization. On appeal, Appellant contested several rulings made by the district court regarding evidence admissibility and sufficiency, and jury instructions. The Fourth Circuit rejected Appellant’s contentions of error and affirmed the judgment of the district court. 

United States v. Joshua Wayne Riley

In this criminal case, Appellant was convicted on federal drug-related charges in 2013. Appellant was released from prison in 2016 and began serving his five-year supervised release term. The district court determined Appellant violated the conditions of his supervised release and sentenced Appellant to twelve months’ imprisonment. Appellant appealed, arguing that the court erred in finding Appellant’s statements sufficient to establish the violation of his supervised release. The Fourth Circuit affirmed the judgment of the district court. 

Thomas Franklin Bowling v. Director, VA Dept. of Corrections

In this habeus corpuscase, Appellant was sentenced to life with the possibility of parole when he was seventeen years old and was first eligible for parole in April 2005. Thereafter, Appellant was annually denied parole by the Virginia Parole Board. Appellant alleged that the Parole Board’s repeated denials violated Appellant’s Eighth and Fourteenth Amendment rights. The district court granted the Appellee’s motion to dismiss. Regarding the Eighth Amendment claim, the district court held that juvenile-specific Eighth Amendment protections did not apply to Appellant because he was sentenced to life with the possibility of parole. Additionally, the district court held that the Parole Board’s procedures satisfied the Fourteenth Amendment’s procedural due process requirements. The Fourth Circuit affirmed the judgment of the district court.

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29Mar

Weekly Roundup – 3/25-3/29

Categories: 4th Cir. Blog Civil Cases Criminal Cases Weekly Roundup
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R.F. v. Cecil County Public Schools

This case is a civil case where the parents of a child with disabilities challenged an administrative law judge’s determination that Cecil County Public Schools (“CCPS”) had fulfilled its obligation to provide the child with a free appropriate public education under the Individuals with Disabilities Education Act (“IDEA”). There were four issues on appeal: (1) whether CCPS failed to educate the “least restrictive environment” (usually, alongside children who are not disabled); (2) whether CCPS failed to sufficiently implement classroom placement in the child’s Individualized Education Program (“IEP”); (3) whether CCPS denied the child’s parents the right to participate in her education; and (4) whether CCPS provided an appropriate IEP for the child. The administrative law judge and the district court both found that any procedural violations CCPS committed did not substantively deny the child from a free appropriate public education. The Fourth Circuit held that CCPS did violate some procedural requirements of the IDEA, but that overall CCPS did not deny the child a free appropriate public education under the IDEA. Thus, the Fourth Circuit affirmed the district court’s decision. 

Lance Belville v. Ford Motor Company

Ford Motor Company (“Ford”) was sued by a group of individuals and corporations (“Plaintiffs”) for an alleged defect in Ford vehicles manufactured between 2002 and 2010. In total there are twenty-seven individual and two corporate Plaintiffs who had purchased or leased Ford vehicles with these alleged defects. The district court excluded the opinions of the Plaintiffs’ experts, dismissed various claims of certain Plaintiffs and ultimately granted summary judgment to Ford on all remaining claims. The Fourth Circuit affirmed the district court judgment. The district court excluded the opinions of Plaintiff’s three experts based on their lack of relevance and reliability. The Fourth Circuit held that the district court provided a well-reasoned analysis of the experts’ theories and testing based on consideration of the appropriate Daubertfactors for the case. Those appropriate Daubertfactors included general acceptance of a theory within a relevant field, peer review, and the scientific valid of underlying methodologies used. Therefore, the Fourth Circuit held that the district court did not abuse its discretion when they excluded the experts from the proceeding. Ultimately, the Plaintiffs could not prove their theory of defect when their experts were excluded and thus the Plaintiffs could not meet the essential element of causation. Therefore, the district court’s grant of summary judgment on all claims to Ford was appropriate.

United States v. Justin Hawley

            In this criminal case, Defendant Justin Hawley (“Hawley”) pleaded guilty to two counts of distributing heroin and to two counts of being a felon in possession of a firearm. Hawley was sentenced to fifty-seven months in prison, in part because Hawley’s prior criminal history included a sentence of thirty days imprisonment for an uncounseled misdemeanor offense. The uncounseled misdemeanor offense that Hawley was imprisoned for thirty days for was for providing false information to a police officer and for failure to wear a seatbelt. Hawley argued “that the district court contravened the Sentencing Guidelines in calculating his criminal history by counting the prior uncounseled misdemeanor that resulted in imprisonment.” The Fourth Circuit affirmed Hawley’s fifty-seven month sentence. The Sentencing Guidelines (“Guidelines”), under U.S.S.G. § 4A1.2(c)(1), require the district court to count certain prior offenses when computing a defendant’s criminal history for sentencing, “only if (A) the sentence was a term or probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” Therefore, under the plain language of Guidelines, Hawley’s offense should be counted in calculating his prior criminal history. Based on this information, the Fourth Circuit held that the district court did not err in counting Hawley’s prior voluntarily uncounseled misdemeanor offense for which he was sentenced to 30 days imprisonment in calculating his criminal history and therefore the Fourth Circuit affirmed the imprisonment term for Hawley in this case.

United States v. Michael Smith

            In this criminal case, defendants Mark Bazemore, Michael Smith, Jr., and Timothy Hurtt all participated in the illegal activities of a Baltimore street and prison gang named the Black Guerilla Family. All three defendants were convicted because of their involvement in the gang’s drug dealing and violent acts they committed as members of the gang. The district court sentenced Bazemore to life, Hurtt to 324 months and Smith to 210 months. Bazemore and Hurtt were convicted for, among other things, first-degree murder and attempted murder. Smith was convicted of extortion and drug distribution under a racketeering conspiracy. Defendants sought to reverse their convictions for two main reasons. First, Defendants argued that “the district court improperly handled the fears some jurors expressed to the court after learning of this gang’s predilection for violence and retaliation.” Second, Defendants claimed that the district court should have excluded the expert testimony of an FBI agent regarding the decoding of intercepted phone calls. The Fourth Circuit rejected the challenges of the Defendants. The district court had excused three different jurors that were scared because of the nature of the case and the potential for violence against them or their families after the trial if Defendants were convicted. During the trial, the Government called an Agent James to provide expert interpretations of phone calls of gang members that had been recorded as part of an FBI investigation. Agent James was qualified as an expert in drug and gang terminology in Maryland and at trial he explained the meanings of several coded gang terms used in the recorded conversations. The Fourth Circuit found that the district court in questioning each juror individually after learning that Juror No. 5, one of the juror’s ultimately excused, was experiencing great fear from being on the jury. It is the job of the trial judge to determine if affected jurors can remain fair and impartial. In the opinion of the Fourth Circuit, the trial judge acted well within his discretion in denying the request for a mistrial after excusing the three jurors he believed could not be fair and impartial and keeping those jurors that assured him of their continued impartiality. The Fourth Circuit rejected the argument that the district court abused its discretion in admitting portions of Agent James’s expert testimony and that even if any improper opinion testimony from Agent James was heard by the jury it was harmless.

U.S. v. Jose Guzman-Velasquez

            This case is a criminal case in which Jose Benjamin Guzman-Velasquez (“Defendant”) was charged with the crime of illegal reentry when he returned to the United States after being deported. Defendant was removed from the United States in 2007, but sometime after returned and was convicted of three crimes. Subsequently, in 2016, a grand jury indicted Defendant for illegal reentry in violation of 8 U.S.C. § 1326(a). Guzman made a motion to dismiss the indicted, but the district court denied the motion. Guzman plead guilty and appealed. The issue was whether United States Citizenship and Immigration Services’ (“USCIS”) denial of Defendant’s Temporary Protected Status (“TPS”) application violated his Due Process rights, and whether under the Supreme Court case United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the due process principle extends beyond removal orders to TPS denials. The Fourth Circuit did not reach the question regarding the Mendoza-Lopezcase because they determined Defendant had not asserted a due process violation that resulted in fundamental unfairness. The Fourth Circuit held that USCIS did not error in denying Defendant’s TPS application and therefore affirmed the district court’s judgment. 

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8Mar

Weekly Round-Up 3/1-3/8

Categories: 4th Cir. Blog
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By Tristan Meagher & Nick McCauslin

United States v. Mills

In this criminal case, the Fourth Circuit affirmed the sentencing of Darryl Mills for possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1). After pleading guilty to the violation, Mills was sentenced to 70 months in prison based on a finding that his prior conviction of assault with a deadly weapon was a “crime of violence.” Mills argued that his prior conviction was not for a crime of violence, and thus his sentence should be reduced to 37 to 46 months, consistent with sentencing guidelines. The Fourth Circuit held because the district court noted that it would have imposed the 70 month prison sentence regardless of whether the prior conviction was a crime of violence and that the sentencing was substantively reasonable.

Williams v. Strickland

In this civil case, the Fourth Circuit affirmed the district court’s denial of summary judgment in favor of the defendants. Williams brought suit against police officers in the United States District Court for the District of South Carolina for using deadly force when arresting him, in violation of his Fourth Amendment Rights. As the officers attempted a traffic stop, Williams drove his car in the direction of one of the officers, prompting them to shoot Williams. The officers filed a motion for summary judgment on the basis of qualified immunity. The district court denied the motion finding that a reasonable jury could have determined that the car was not going to pass or had already passed the officer, in which case the use of deadly force would have been excessive. The Fourth Circuit agreed.

United States v. Simmons

In this criminal case, the district court revoked the defendant’s supervised release and sentenced him to 36 months in prison after he was found to have committed assault with a deadly weapon on a government official in violation of his release. The district court held that because assault with a deadly weapon on a government official is categorically a “crime of violence,” they were free to revoke his supervised release and implement the 36 month prison sentence. The Fourth Circuit vacated the revocation holding that assault with a deadly weapon on a government official is not categorically a crime of violence, because the offense can be committed without the requisitemens rea to qualify as a crime of violence. Accordingly, the case was remanded to the district court for resentencing. 

Robinson v. United States Department of Education

In this civil case, plaintiff Anthony Robinson appealed the dismissal of his case against the Department of Education. The district court dismissed his case because it lacked jurisdiction over the claim due to the lack of waiver of sovereign immunity for suits under the Fair Credit Reporting Act (FCRA). The issue on appeal was whether Congress waived sovereign immunity for suits under the FCRA. The Fourth Circuit ultimately focused on the term “person” in 15 U.S.C. § 1681(n) and § 1681(o). The Fourth Circuit ultimately refuses to read the word “sovereign” into the word “person, and thus affirmed the dismissal by the district court for lack of subject matter jurisdiction. 

Equinor USA Onshore Properties v. Pine Resources, LLC

The issue this civil case was what exactly the contractual requirements are in a Purchase and Sale Agreement (PSA). Specifically, what the clause that required Equinor USA to “spud” three wells meant. The district court finding, that the term “spud” required Equinor to drill, but not complete, the wells, was appealed by Pine Resources. Pine Resources contended that the parties clearly intended “spud” to mean complete the wells such that they can be used. The Fourth Circuit decided that the district court was correct in their finding. To come to that decision, the Fourth Circuit considered the record as a whole and whether or not it supported the district court’s conclusion as to the intent of the parties. They found that while there was some evidence that Pine Resources believed the PSA required product, the record—considered as a whole—showed that the PSA merely contemplated, but did not require, the completion of the wells. Thus, the decision by the district court was affirmed. 

Hately v. Watts

In this civil case, plaintiff David Watts appealed the dismissal of his suit that Watts violated the Virginia Computer Crimes Act and  the Federal Stored Communications Act. There were two issues on appeal.  The first was whether the district court’s finding that Hately failed to show necessary injury under his state law claim. The second was the district court’s finding that emails stored by a web-based email service were not considered “electronic storage” under federal law.  Regarding the first issue, the Fourth Circuit found both that the district court improperly applied the doctrine of collateral estoppel and that Watts had adequately alleged injury to his person or property. Regarding the second issue, the Fourth Circuit found that “previously opened and delivered emails” stored “in a web-based email client” were considered “electronic storage” under the federal Stored Communications Act. Therefore, they reversed the district court on both the state and federal claims and remanded it for trial. 

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