Justice Reinvestment on the Ground

August 26th, 2014
By Jamie Markham

Among the two dozen or so states that have participated in Justice Reinvestment, North Carolina has become something of a darling. The goal of the initiative (summarized in this infographic) is to reduce spending on corrections, and North Carolina has done that. Since the day the law came into effect, we have 2,000 fewer prison inmates, and—in something of a surprise—10,000 fewer probationers. (As I was looking into this, I noticed that there are 20,000 fewer probationers in North Carolina today than there were in early 2008!) The general view is that the initiative is working well here, and other states are looking to copy our model. Commissioner of Adult Correction David Guice has appeared before congressional staff to talk about North Carolina’s experience, and just last week spoke to Alabama’s Association of County Commissioners about our success, highlighting our use of short confinement periods (quick dips) to respond to technical violations of probation.

With all this attention, it seemed a good time to share some data that show how Justice Reinvestment Act (JRA) “tools” are being used in practice in North Carolina. (Previous statistical reviews are available here and here.) All figures come from the excellent research staff of the Division of Adult Correction and Juvenile Justice.

Delegated authority. Probation officers can, after the JRA, impose more conditions on probationers through delegated authority than they could before the law came into effect. Without action by the court, officers can impose conditions like community service, substance abuse treatment, electronic house arrest, a curfew, and educational programs. The officer may impose any of those conditions in response to a violation, or (unlike pre-2011 law) without a prior violation if the probationer has been “determined to be high risk based on the results of the risk assessment.” G.S. 15A-1343.2(e) and (f). Probation officers refer to the latter option as “high risk delegated authority.” Since the start of 2013, officers used delegated authority over 3,000 times, with over two-thirds of that being the post-violation variety. Officers used high risk delegated authority 969 times.

Quick dips. The JRA added a new form of delegated authority through which probation officers can jail certain probationers for two or three days in response to a violation of probation. Officers may only do that after following a special procedure that includes the offender’s waiver of the rights to a hearing and counsel. G.S. 15A-1343.2(e) and (f). Quick dips were scarcely used at all in 2012, but things have picked up considerably since then. In fiscal year 2013/14, officers imposed 1,448 quick dips. Almost two-thirds of them (903) were of the 3-day variety.

My understanding is that very few judges take the affirmative step of “un-delegating” the authority for a probation officer to impose a quick dip, although there are a handful that do so in every case. I have not heard of any litigation regarding the constitutionality of officer-imposed dips, which I wrote a little bit about here.

A preliminary analysis of the effectiveness of quick dips shows promise: a group of offenders who received one quick dip in response to noncompliance were less likely to get revoked and less likely to abscond than a matched group of undipped offenders. A summary of the analysis, shared with DAC’s permission, is available here. It’s a small sample, but the results are interesting and encouraging.

ASR. Another new arrow in the JRA quiver is Advanced Supervised Release (ASR). The law, which allows a person serving an active sentence to earn an early release by completing certain “risk reduction incentives” in prison, is summarized here. Statewide, over 300 ASR sentences have been entered since the law came into effect. Unlike quick dips, however, there are indications that ASR usage has actually slowed in recent months. An ASR sentence cannot be imposed over the objection of the prosecutor, so it’s possible that the law is not being used because most prosecutors object. Or it may just be that nobody brings it up. It’s too soon to have any meaningful data about whether ASR risk reduction incentives actually reduce risk.

I would love to hear your thoughts about how these new legal tools are being used in practice. Officials in Alabama, Michigan, and other states thinking of taking the JRA plunge might also learn from our collective experience.

Stealth Constitutional Amendment Could Bring Big Changes

August 25th, 2014
By Jeff Welty

This fall, North Carolina voters will decide whether to amend the state constitution. The proposed amendment would allow, for the first time, bench trials for felonies in superior court. Neither the media nor advocacy groups have paid much attention to the amendment, so almost no one seems to know that it is on the table. For that reason, I think of it as the stealth constitutional amendment. Despite the amendment’s low profile, allowing felony bench trials would be a major change.

The change could be for the better. For example, bench trials might save money, and some defendants — those with technical defenses, or those who are unpopular in the community — might prefer a judge to a jury. The 49 other states allow bench trials, so the amendment would bring us in line with the national norm.

But the change could also be for the worse. Once waiver is possible, defendants might be pressured to waive their right to a jury trial. Defendants with prominent and well-connected lawyers might get unfairly favorable treatment. Also, contrary to the majority rule in other states, the amendment doesn’t give the prosecution the right to insist on a jury trial if it believes that a bench trial would be inappropriate.

In an effort to draw some attention to the amendment and to provide some information about its possible benefits and costs, I worked with School of Government law clerk Komal Patel to prepare a report about it. The report is available here as a free PDF. In typical School of Government fashion, it doesn’t take a position on the amendment but it contains quite a bit of information about its potential impact and the practice in other jurisdictions. It’s written to be accessible to voters who aren’t very familiar with the criminal justice system, so please pass the link along to anyone who may be interested. As always, feedback and comments of all kinds are welcome.

News Roundup

August 22nd, 2014
By Jeff Welty

The week saw a bit of musical chairs at the state supreme court. Chief Justice Parker stepped down as a result of mandatory retirement and then-Senior Associate Justice Martin was named Chief Justice. Then-court of appeals judge Bob Hunter was named Associate Justice, replacing now-Chief Justice Martin. That should settle everything . . . until November, at which point we’ll have elections for several seats and may see additional changes.

In other news:

Would Michael Brown’s robbery be admissible in a homicide case against the officer who shot him? Michael Brown is the young man who was shot and killed in Ferguson, Missouri. It appears that he had recently robbed a convenience store, but that the officer who shot him may not have known that. If the officer is charged with homicide, would evidence about the robbery be admissible? Ken White at Popehat is skeptical in this post, but former federal judge and current law professor Paul Cassell argues here that evidence of the robbery likely would be admitted. To me, Cassell seems to have the better of the argument, but obviously opinions may differ.

Lawyers question Rick Perry indictment. Texas Governor Rick Perry was indicted for cutting funding to a prosecutor’s office after the prosecutor (a) investigated a program that Perry favored, (b) got arrested for drunk driving and then acted like a jerk, and (c) refused Perry’s request to resign. I’m withholding judgment until more details emerge, but my tentative view is that the indictment is an overreach. The Wall Street Journal Law Blog rounds up a few opinions on the issue here, from across the political spectrum. Most are critical of the indictment.

Mockingbird news. To Kill a Mockingbird is one of the best books ever written about criminal law. Author Harper Lee wrote the book as a young woman and never wrote another, living quietly, perhaps even reclusively, in a small town. There’s a new book out about her, called The Mockingbird Next Door, written by a woman who lived next door to Harper Lee and her sister Alice for several years. It’s a controversial book but I heard an interview with the author, who revealed that Alice Lee was a lawyer who practiced until she was 100 years old. So one sister retired very, very young, and the other seemingly didn’t ever want to retire.

I pity the fool! Children of the 1980s will enjoy this story about Mr. T showing up for jury duty in Illinois, still sporting his trademark Mohawk. Apparently his fans “flocked to him in droves.”

Huge news in the only sport not on ESPN. Finally, the competitive court reporting national championship took place recently in San Francisco. Mark Kislingbury, a reporter known as “the Michael Jordan of court reporting,” was upset by Jo Ann Bryce, who achieved near-perfect accuracy at a dazzling rate of 280 words per minute. Here’s hoping she gets her rightful place on a Wheaties box.

General Assembly Closes Up Shop, Gives Us “Technical” Corrections

August 21st, 2014
By Jeff Welty

The General Assembly reached an agreement on coal ash and has adjourned for the session. Shortly before departing, it approved a technical corrections bill that has become law. The bill contains several criminal law provisions, some of which arguably are not “technical.” But let’s not get technical about what’s technical!

Bob Farb sent a summary of the bill out yesterday afternoon, and I’ve pasted it below for those who haven’t seen it. It includes several provisions that I have previously noted on the blog, including one regarding vapor cigarettes for jail inmates and one regarding the disposition of seized weapons. But the bill contains additional items of possible interest as well, so here’s the entire summary:

S.L. 2014-115 (H 1133): Miscellaneous criminal law changes. This 58-page session law makes miscellaneous changes to a variety of statutes, including criminal provisions, which are effective on August 11, 2014, unless otherwise noted. The section numbers and pages of the session law are noted to facilitate locating the provisions.

  • Amended G.S. 15A-830(a)(7), involving the Crime Victims’ Rights Act, revises the listing of offenses included within the act to reflect reclassifications and repeals, and specifically states that the changes do not adversely affect the rights granted to victims before these changes become effective. Section 2.1 (pages 2-3).
  • Amended G.S. 7A-273(2) (magistrates’ authority to accept guilty pleas) includes open burning offenses under Article 78 of G.S. Chapter 106. Section 20 (page 13).
  • Effective for offenses committed on or after December 1, 2014, amended G.S. 14-258.1 allows local confinement facilities to give or sell vapor products or FDA-approved tobacco cessation products to inmates in their custody. Section 23 (page 13).
  • A clerk of superior court’s reporting duties under G.S. 14-404(c1) to the National Instant Criminal Background Check System (NICS) involving pistol permits issued by sheriffs are delayed from beginning on July 1, 2014, to January 1, 2015, and clarifies that the clerk must determine which information can “practicably be transmitted” to NICS. Section 23.5 (pages 13-14).
  • Amended G.S. 15-11.1(b1)(4) allows a court order transferring a seized firearm to a law enforcement agency to be issued without a written request of the head of the agency. Section 24.5 (page 14).
  • Amended G.S. 20-4.01(41a) includes within the definition of a “serious traffic violation” the unlawful use of a mobile telephone while operating a commercial motor vehicle. Section 28.3 (pages 18-19).
  • Amended G.S. 20-37.13 provides that the issuance of a commercial driver’s learner’s permit is a precondition to the initial issuance of a commercial driver’s license and also a precondition to the upgrade of a commercial driver’s license if the upgrade requires a skills test. Section 28.5 (page 19).
  • Local acts for five counties (Harnett, Pamlico, Perquimans, Scotland, and Warren) are repealed that had governed the disposition of deadly weapons after a conviction. Disposition in these counties are now governed by G.S. 14-269.1 (confiscation and disposition of deadly weapons) in the same manner as the other 95 counties. Section 61 (page 53).

More FAQ on PRS

August 20th, 2014
By Jamie Markham

Today’s post picks up where my last post left off, with answers (my answers, at least) to more frequently asked questions about post-release supervision.

What will life on PRS be like? It will be a lot like probation—which is something to keep in mind if the defendant requested an active sentence to avoid probation. The conditions of supervision will be set by the Post-Release Supervision and Parole Commission, not by the court. Every supervisee will be subject to a condition that he or she not commit another crime. G.S. 15A-1368.4(b). The Commission may add other conditions it believes are “reasonably necessary to ensure that the supervisee will lead a law-abiding life or to assist the supervisee to do so.” G.S. 15A-1368.4(d) and (e) set out appropriate reintegrative and controlling conditions, respectively. They include things like having a job, completing treatment, not using drugs, paying court costs, and submitting to warrantless searches by a post-release supervision officer. (Unlike probation, for post-release supervision there is no statutory provision for warrantless searches by a law enforcement officer.) Special conditions apply to sex offenders. G.S. 15A-1368.4(b1).

For what types of violations can I be revoked? As described in this prior post summarizing the PRS violation hearing process, the Justice Reinvestment Act limited the Commission’s authority to revoke PRS in much the same way that it limited judges’ authority to revoke probation. PRS may be fully revoked only for a new criminal offense or absconding, or for any violation committed by a person under supervision for a reportable sex crime. G.S. 15A-1368.3(c)(1). For all other violations, the supervisee may be reimprisoned for three months, and then re-released onto PRS. (DAC and the Commission sometimes refer to those 3-month reimprisonment stints as “CRV,” though that statutory terminology applies only to imprisonment for technical violations of probation.) Reimprisonment tolls the term of supervised release. Id. For example, if a defendant violates PRS 10 months into a 12-month term of supervision and is reimprisoned for three months, he comes out of prison with 2 months remaining on the term of supervision. Time does not run on the supervision period while he is behind bars. However, once the defendant has served his entire maximum term of imprisonment, the sentence is considered terminated, G.S. 15A-1368.2(f), and there is no further release to supervision, G.S. 15A-1368.3(c)(1).

If my PRS is revoked, do I get credit against my remaining term of imprisonment for the time I spent under supervision? No. Unlike some other states, North Carolina does not allow credit for what is sometimes called “street time,” the time a person a person spent under supervision in the community. To the contrary, G.S. 15A-1368.3(c)(2) expressly provides that a supervisee “shall not receive any credit for days on post-release supervision against the maximum term of imprisonment imposed by the court . . . .” So, if you have a 9-month term of PRS with 9 months of imprisonment hanging over your head, and you violate and get revoked in month 8, you go back to prison for 9 months, not 1 month.

How does PRS work if I am serving multiple sentences? In general, a person convicted of multiple felony offenses will serve only one period of post-release supervision upon his or her release. If the sentences were set to run consecutively, one PRS term will remain at the end of the aggregate term by virtue of the single sentence rule, described in detail here. The length of that sole PRS term will be dictated by the longest term applicable to the defendant’s multiple convictions (9, 12, or 60 months, depending on the offense class and whether the defendant is a sex offender). Occasionally a defendant will be subject to concurrent sentences that include a mix of non-PRS (i.e., pre-2011) and PRS-eligible felonies, and for which the term of imprisonment for the non-PRS sentence actually extends beyond the PRS-eligible one(s). If that happens, DAC and the Commission will hold the PRS term for the PRS-eligible offense in abeyance until the defendant is actually released from prison on the non-PRS case. Once a person is on PRS, the PRS term generally runs concurrently with any other federal or State prison, jail, probation, or parole term to which the person becomes subject. G.S. 15A-1368.5.

What is the deal with PRS for drug trafficking crimes committed between December 1, 2011 and November 30, 2012? When the General Assembly amended the felony sentencing grid in 2011, increasing felony maximum sentences to account for the expansion of post-release supervision, it did not increase the statutory terms of imprisonment for drug trafficking set out in G.S. 90-95(h). The legislature fixed the problem for offenses committed on or after December 1, 2012, but when I wrote about the issue here in 2012, I was unsure how DAC and the Commission would treat cases falling in the gap year. I have since learned that if there is not a full complement of “extra” time built into the maximum sentence for PRS (9 extra months for Class F, G, and H trafficking, and 12 extra months for Class C, D, and E trafficking), then they will not give the defendant any post-release supervision at all. I have heard that some judges have addressed the issue by adding extra time to the maximum themselves, but I don’t know of any legal basis for doing that. The applicable statute for that time period prescribed a particular sentence, and I think that’s what the court is obliged to use, even if it makes administration of PRS difficult. I would be interested to hear from readers with practical experience with cases from this time frame to learn more about how things played out.

Court of Appeals in State v. Townsend Beefs Up Prejudice Required for Relief under Knoll

August 19th, 2014
By Shea Denning

No one gets relief any more under State v. Knoll—at least not from the court of appeals.  State v. Townsend, decided today, is the latest in a series of post-Knoll cases in which the defendant failed to establish that he was prejudiced by a magistrate’s alleged statutory violations in setting conditions of pre-trial release, and, thus, failed to establish a basis for dismissal of the charges.

Facts. The defendant in Townsend was arrested at a DWI checkpoint in Charlotte around 11:30 p.m. Forty-five minutes later, he submitted to breath testing in the Breath Alcohol Testing vehicle located at the scene, registering a 0.10 on his first test and a 0.09 on his second. The defendant called his wife to tell her he had been arrested. He told her that he or someone would call her later to come pick him up.  The arresting officer then took the defendant to the Mecklenburg County Jail, where he was admitted at 12:56 a.m.

The record of events gets a bit more confusing from here.  While the opinion states that the defendant appeared before a magistrate at 2:54 a.m. (some two hours after arriving at the jail), it also adopts the trial court’s finding that the defendant signed an implied consent offense notice (form AOC-CR-271) in front of the magistrate at 2:34 a.m., listing his wife’s name and phone number. The implied consent notice form contains a certification from the magistrate that an initial appearance has been held, so it is odd that the form apparently was signed before the initial appearance.

In any event, the magistrate imposed a secured bond—of sorts. The conditions of release form stated that the defendant was subject to a $1,000 secured bond, but also stated that the bond “may be unsecured to sober responsible adult with ID.”  The court of appeals called this an “option bond,” as good a label as any since no such condition is defined in or authorized by statute.

A jail official called the defendant’s wife, who came to the jail.  The defendant was released to the custody of his wife at 4:45 a.m., more than five hours after he was arrested and about four hours after he arrived at the jail.

Procedural History.  The defendant moved to dismiss the charges pursuant to State v. Knoll, 322 N.C. 535 (1988), arguing that he was denied the right to communicate with counsel and friends and that this denial resulted in substantial prejudice.  The defendant specifically complained that the magistrate ordered him held under a $1,000 secured bond without justification, prior to meeting with him, and without making written findings as to why that condition was necessary. The trial court denied the defendant’s motion, and the court of appeals affirmed.

Holding. Though conceding that the magistrate “may have committed a technical statutory violation,” by not making written findings as to its reason for imposing a secured bond, the court of appeals held that the defendant failed to demonstrate how he was prejudiced by that violation.  The court noted that the defendant was not in fact required to post a secured bond.  Instead, he was released on an unsecured bond to his wife’s custody.  Ergo, said the court, he cannot show prejudice.  Moreover, the court said that the defendant had several opportunities to call counsel and friends to observe him and help him to obtain an independent chemical analysis, but failed to do so.  Thus, he was not “denied his rights pursuant to Knoll.”

Food for Thought.  Probably because I regularly teach magistrates about the procedures they must follow in setting conditions of release in impaired driving cases, my reaction to the facts is less sanguine than the court of appeals. For starters, “option bonds” are not a statutory option. Instead, G.S. 15A-534 requires that a magistrate impose at least one of the following conditions of release.

  1. Release the defendant on his written promise to appear.
  2. Release the defendant upon his execution of an unsecured appearance bond in an amount specified.
  3. Place the defendant in the custody of a designated person or organization agreeing to supervise him.
  4. Require the execution of a secured appearance bond in a specified amount.
  5. House arrest with electronic monitoring.

A magistrate must impose condition (1), (2), or (3) above unless he or she determines that such release will not reasonably assure the appearance of the defendant as required, will pose a danger of injury to any person, or is likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses. Upon making the determination, the magistrate must then require a secured bond instead of condition (1), (2), or (3), and must record the reasons for so doing in writing to the extent provided in the policies or requirements issued by the senior resident superior court judge.

Furthermore, the “option bond” imposed in Townsend essentially functioned as an impaired driving hold. It was not, however, accompanied by findings to support such a hold. One could infer that the magistrate imposed the bond to prevent the defendant from gaining immediate release–unless the defendant was released to the custody of a sober, responsible adult. If, however, the magistrate found clear and convincing evidence that the defendant was impaired to the extent he was a danger, the appropriate action would have been to impose an impaired driving hold pursuant to G.S. 15A-534.2 rather than an optional bond. Impaired driving holds are properly recorded on form AOC-CR-270, which contains a place for magistrates to record their findings.

It isn’t clear to me whether there was evidence in Townsend to support such a hold. The defendant’s alcohol concentration was near the per se level, and he was stopped at a checkpoint. Perhaps his alcohol concentration when combined with the signs of intoxication that the officer observed during the field sobriety tests were sufficient to render him dangerous more than three hours after his arrest, but I am somewhat doubtful.

Had the magistrate imposed a written promise or an unsecured bond at the initial appearance, the Townsend defendant would have been released nearly two hours earlier, a difference that may not have affected his ability to gather evidence in any meaningful way. In another case, however, the difference could be significant. A defendant might be held for several hours on an “option bond” when there is no evidence that she is impaired to the extent she is a danger. Conversely, a highly impaired defendant could post bond and gain release without supervision.

Why? I continue to be surprised by the perseverance and prevalence of option bonds. Perhaps they are used to avoid the additional paperwork associated with an impaired driving hold. Perhaps magistrates have decided that statutory procedures must be skirted to protect the public.  Or perhaps old habits just die hard. In any event, State v. Townsend again emphasizes that a defendant must prove far more than a misstep by a magistrate to be entitled to dismissal of impaired driving charges under Knoll.

Ferguson and Cameras

August 18th, 2014
By Jeff Welty

According to the New York Times, the governor of Missouri is now deploying the National Guard in an “effort[] to quell unrest” resulting from a white police officer’s shooting of a black teenager in the city of Ferguson. It seems to me that much of the “unrest” is a result of a lack of factual information about what took place between the officer and the teenager. Many community members believe that the teenager was shot without provocation. The officer hasn’t spoken publicly, to my knowledge, but appears to have told investigators that the teenager, who was very large, was attacking him. As far as I can tell, there are few credible witnesses, and the autopsy results don’t determine conclusively which version of events is correct. As a result, people can and do believe very different things about the incident, making violent disagreement possible.

If the officer had been equipped with a wearable camera, we would have much better information about what happened. Even a dash-mounted camera in the car would have helped. It might or might not have captured video of the interaction, but even an audio recording would be better than nothing.

The lack of a dash-mounted camera is a bit of a surprise. Many, if not most, police departments now have cameras in every patrol car. According to the police chief in Ferguson, “his department has 18 patrol cars. This spring, the department purchased two dashboard cameras and two wearable body cameras, but the equipment hasn’t been installed in vehicles because the department doesn’t have the money to cover that cost.” Hindsight is 20-20, but the costs of dealing with the “unrest” and the forthcoming lawsuit by the teenager’s family will make that cost seem like pocket change.

The incident has led to calls to equip all law enforcement officers with wearable cameras. The Editor in Chief of PoliceOne has a column here entitled Following Ferguson, a body camera on every officer? A columnist at Slate goes even further here, arguing that all public servants, including schoolteachers, should be equipped with recording devices.

There seems to be a strong argument for wider deployment of recording devices among law enforcement, at least when officers are engaged in adversarial interactions. And the reports that I have read suggest that departments that are using wearable cameras have had good experiences. But I’m interested in others’ perspectives. Would you support or oppose a policy that provided officers with wearable cameras and required their use? Would that sour the relationship between law enforcement and the public, or be too intrusive? I welcome responses by email, or of course in the comments section.

News Roundup

August 15th, 2014
By Jeff Welty

This week brought two tidbits of legislative news as the session winds down. First, the General Assembly slightly revised the rules for disposing of weapons seized during criminal investigations, generally making it somewhat easier to order such weapons into the possession of a local law enforcement agency. A helpful AOC memo explaining the changes is here. Second, WRAL ran this article about a provision in the technical corrections bill that allows county jails to sell e-cigarettes to inmates. (Traditional cigarettes are a no-no in jails.)

In other news:

Risk-based sentencing in the news. Attorney General Eric Holder submitted a letter to the Sentencing Commission condemning evidence-based, or risk-based, sentencing. That’s the practice of basing a defendant’s sentence in part on an assessment of the future danger posed by the defendant. The New York Times editorializes its agreement with Mr. Holder here, characterizing the practice as “punishment profiling” and arguing that it is unfair to minorities and the poor. Others argue that defendants should be punished based on what they have done, not what they might do. On the other hand, one possible purpose of sentencing is protecting the public by incapacitating dangerous defendants, and knowing more about how dangerous a particular defendant is likely to be may help to inform that decision. A federal judge argued in favor of the practice on his blog here, and a defense attorney offered a rejoinder here.

ABA review of Stand Your Ground Laws. An ABA task force that reviewed Stand Your Ground laws has concluded that they are unnecessary, increase homicides, and result in racial disparities. The ABA’s website reports on the matter here, while a long Think Progress piece about the committee’s work is here. Other perspectives are possible, of course.

Not to overly emphasize grammar, but . . . readers may be interested in this post at the Volokh Conspiracy, which rocked my world regarding the use of split infinitives. It argues persuasively that they are not only permissible, but fully standard and in fact, in many situations, better than alternative phrasings. I had no idea.

Things are different in Russia. Finally, the Moscow police have adopted new disciplinary policies designed to prevent female officers from altering their uniforms by shortening the skirts. The Moscow Times has the story here, together with a photograph illustrating the issue. Teenage boys across the city are likely distraught.

That Court of Appeals Ballot

August 14th, 2014
By Michael Crowell

In July John Martin, the chief judge of the Court of Appeals, announced his retirement effective August 1st. Given the timing of his decision, state law requires an election in November to fill the seat but no primary in advance to reduce the number of candidates. It appears that everyone who has ever aspired to be an appellate judge sees this as an opportunity to catch the ring, and 19 candidates have filed. One of them will get more votes than the others, though it may not be very many, and will be elected with no run-off. Nineteen candidates, one vote, one time, most votes wins. Some people may think this is not the best way to choose a judge for an eight-year term on North Carolina’s second highest court. How did we end up with such an election?

Nonpartisan elections

Let’s start with North Carolina’s switch from partisan to nonpartisan elections. Until the late 1990s we elected all state judges in partisan elections. Just like the governor and legislators and county commissioners, judicial candidates ran on political party labels. Each party held a primary to determine its candidates and those party nominees faced off in the general election. If a vacancy opened up too late for a primary, as with Judge Martin’s seat, the executive committees of the parties would choose the candidates for the November ballot, one for each party. A nice neat ballot with no undue clutter of candidates.

Starting in 1998, though, North Carolina moved to nonpartisan election of judges. First to be converted were superior court judges in 1998, then district judges in 2002, and finally appellate judges in 2004. Democrats’ and Republicans’ views on the method of selecting judges tend to fluctuate over time, depending on how they think their party will fare. Several events in the 1980s and 90s, when Democrats still controlled the legislature, started the shift toward nonpartisan elections. Election of superior court judges had to be changed — remember when they were nominated in primaries in their districts but were then subject to a statewide general election? — because of two lawsuits. One was a Voting Rights Act lawsuit claiming that the system discriminated against African Americans, and the other a Republican lawsuit contending party discrimination. Add to the litigation the fact that Republicans started winning some statewide elections and the move to nonpartisan elections began.

With nonpartisan elections, of course, the political parties have no role in nominating candidates. In regularly scheduled judicial elections the November ballot is shortened to two candidates per office by having a nonpartisan primary in the spring.  But when a vacancy occurs too late for the primary, as with the Martin seat, the election has to be open to any qualified candidate who wants to run.

Eight-year terms

A second change encouraging candidates to run for vacancies has been the reward of an eight-year term. Until 1995 when a vacancy arose in the middle of a term there would be an election to choose someone to fill the remainder, but only the remainder, of the unexpired term. John Martin was elected to the Court of Appeals in 2008. Under the old system the winner this November would serve only until 2016, that is, just two years, at which time there would be an election for a full eight-year term.

In the early 1990s Governor Jim Martin, taking a different view of the state constitution and statutes on vacancies, issued eight-year commissions to several appellate judges, including Bob Orr, who had been elected to fill unexpired terms. The governor’s position was that constitutionally all elections had to be for eight-year terms. Superior court judge Tony Brannon disagreed and sued when the State Board of Elections did not put Orr’s Court of Appeals seat on the ballot in 1992. The Supreme Court dodged the constitutional issue in Brannon v. North Carolina State Board of Elections, 331 N.C. 335 (1992), but interpreted the statutes to mean a vacancy election was only for an unexpired term. Brannon, thus, won the right to run in 1992. He lost to Orr.

Both political parties — and particularly the appellate judges in both parties — decided the Brannon decision was bad policy, prompting the General Assembly in 1995 to declare that all appellate judicial elections are for eight-year terms, even if prompted by a vacancy. The same rule was extended to superior court vacancies in 1996 (except, for a time, vacancies in some districts that were part of the earlier voting rights litigation).

(If you are wondering, there are no elections to fill vacancies in district court judgeships, which have only four-year terms. Regardless of when the vacancy occurs during the term, the appointed replacement serves the remainder of the term.)

The 2004 election

By 2004, then, the law provided that judicial elections were nonpartisan and that elections to fill vacancies were for full eight-year terms. And under general state law, if a vacancy occurred too late for a primary there would be a single winner-take-all election, most votes wins. When Bob Orr, by this time on the Supreme Court, resigned his seat in the middle of 2004, eight candidates signed up for the November vacancy election. Paul Newby led with 583,000 votes out of almost 2.6 million cast and got a full eight-year term. He had received about 22 percent of the votes.

To some the 2004 result did not seem quite right, that someone should be elected to a full eight years on the state’s highest court with less than a quarter of the votes in a hurry-up election. Consequently the legislature was convinced in 2006 to make a drastic change in voting for such elections.

Instant run-off voting

Instant run-off voting is one of those schemes that delights political scientists but puzzles the average person in the street. As enacted in 2006, if there was a late judicial vacancy there would still be a single election in November open to all qualified candidates. When voters went to the polls, though, they would do something more than just check the name of a single candidate. A voter could place a 1, 2 or 3 next to their top three choices. If no candidate got a majority of 1 votes, the 2s and 3s would be counted in some fashion to figure out who really had the most overall support. The idea of instant run-off voting is to show who might prevail in a run-off without really having a second election. Don’t ask me to explain further.

In 2010 we got to see instant run-off voting in action. When a vacancy arose late for the Court of Appeals, 13 candidates filed. Cressie Thigpen led with 395,000 of the nearly two million votes cast, 100,000 votes ahead of second-place Doug McCullough, but Thigpen was far short of a majority. Consequently, the counting of 2s and 3s kicked in. McCullough ended up the winner, and maybe a few people understood the math.

The 2013 General Assembly

The General Assembly’s recent reworking of election laws included two significant changes in judicial elections. First, the legislature eliminated public funding of appellate judicial elections. Started at the same time as the switch to nonpartisan elections in 2004, public funding allowed appellate candidates who demonstrated a certain level of statewide support through their own fundraising to receive a set amount of public funding — generally just a couple of hundred thousand dollars — in exchange for agreeing not to accept political contributions. The intent was to reduce the influence of special interest groups in judicial elections.

Public funding proved popular with candidates but not with the Republican majority that gained control of the legislature in 2013. The idea of using public funds to pay for individual candidates’ campaigns had always been controversial, and it was repealed.

The second change that was enacted was to eliminate the use of instant run-off voting. There isn’t any clear record why it was dropped. Maybe it just seemed too odd.

The 2014 ballot

For 2014, therefore, we are back to where we were before 2006. We have a reprise of 2004 with a mighty host of candidates competing in a single plurality election for an eight-year appellate term. With 19 people in the field — including two former Court of Appeals judges, one ex-superior court judge, at least one sitting district court judge, a former State Board of Elections member, a prominent ex-legislative staffer, and lots of others — it’s unlikely anyone will come close to a majority.

Given the number of candidates, the short time for campaigning, the low attention paid to judicial races, and the drop-off in voting for judgeships, someone is likely to win with a small percentage of votes. In 2012 about 4.5 million North Carolinians voted for president, and over 4.3 million for superintendent of public instruction, but by the time voters got down the ballot to the Supreme Court only 3.5 million were still voting. The number was lower for the Court of Appeals seats. Those were simple one-on-one judicial elections, fairly easy choices. How many voters will skip the Court of Appeals vacancy when they see 19 unfamiliar names? And what percentage of the total votes will any one candidate get?

There is another possibility for the November election, maybe more worrisome. Because of the large field of candidates and the minimal attention the election will receive, it might take only a modest investment by a special interest group to sway the outcome. With no public funding, candidates must resort to traditional fund raising, and some interest groups may see an opportunity. Furthermore, with restrictions lifted on independent organizations’ spending on campaigns, and corporations allowed to contribute to those efforts, an interest group operating essentially anonymously under a vague name — say, North Carolinians For Real Justice — could put a few hundred thousand dollars into the campaign at the last minute in favor of a single candidate, tipping the race and realizing an outsized dose of influence.

North Carolina has struggled for decades to figure out the best way to elect judges. The 2014 Court of Appeals vacancy may prompt additional debate on the subject.

FAQ on PRS

August 13th, 2014
By Jamie Markham

There are almost 7,000 people on post-release supervision in North Carolina today. That’s up from around 2,000 in 2011, before the law was changed to require post-release supervision for all felonies. As the PRS census increases, so do the questions. Today’s post addresses a few frequently asked questions about post-release supervision, presented from the defendant’s point of view.

Do I have to do post-release supervision? It depends on the date and class of the offense. Sentences for defendants convicted of Class B1–E felony offenses committed on or after October 1, 1994, and any felony committed on or after December 1, 2011, include time for post-release supervision. Defendants who receive active sentences in those date ranges necessarily will be released onto post-release supervision at the conclusion of their active time. Defendants sentenced to probation initially will do PRS only if their probation is revoked.

How long is my term of post-release supervision? Again, it depends on the date and class of offense, and also whether or not the crime requires registration as a sex offender. The following summary is drawn from G.S. 15A-1368.2(c).

Offenses Committed before 12/1/11

  • Class F-I felonies:  No PRS
  • Class B1-E felonies:  9 months PRS
  • Class B1-E sex crime:  5 years PRS

Offenses Committed on or after 12/1/11

  • Class F-I felonies:  9 months PRS
  • Class B1-E felonies:  12 months PRS
  • Any felony sex crime:  5 years PRS

Can I refuse PRS and just serve out the remaining term of imprisonment? No. G.S. 15A-1368.2(b). And a sex offender inmate who willfully refuses to accept PRS can be held in contempt and imprisoned for the refusal, with that imprisonment not counting for credit against the remaining term of imprisonment for the underlying sex crime. Id. (described in this prior post).

Nobody mentioned anything about PRS when I was sentenced, and there’s nothing about it on my judgment. Do I still have to do it? Probably. There is no statutory requirement that a defendant be advised of a term of post-release supervision as a consequence of a guilty plea. G.S. 15A-1022 requires only that the defendant be advised of the maximum possible sentence for the charge. By contrast, federal procedural rules require the judge accepting a guilty plea to advise the defendant of the “maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed. R. Crim. Proc. Rule 11(b)(1)(H). Other states have similar rules. E.g. Ohio R.C. 2943.032.

Could the failure to advise about PRS raise a constitutional issue regarding whether the defendant’s plea was knowing, voluntary, and intelligent? Maybe. Constitutionally, a defendant must be made fully aware of the direct consequences of his or her plea, which are those that have a “definite, immediate and largely automatic effect on the range of the defendant’s punishment.” State v. Bozeman, 115 N.C. App. 658, 661 (1994). See generally Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual (Vol. 2, Trial), at 65. PRS is mandatory, and thus pretty clearly “direct” (unlike parole eligibility, which is something upon which a defendant need not be advised, State v. Daniels, 114 N.C. App. 501 (1994)). However, when the term of PRS supervision is no longer than the extra time built into the defendant’s maximum sentence (generally 9 months for a Class F–I felon or 12 months for a Class B1–E felon), the judge’s advice about the maximum term of imprisonment may be all that is required. Though qualitatively different from imprisonment, the PRS supervision period will not extend beyond the duration of the advised-upon maximum, because the defendant will automatically be released that same number of months before attaining the maximum. G.S. 15A-1368.2(a). So in some sense the defendant has been advised about the outermost bounds of the punishment.

The type of defendant for whom the failure to advise about PRS seems most troubling is a Class F–I sex offender, who has only 9 extra months of imprisonment built into his or her maximum sentence, but a 5-year term of supervised release. G.S. 15A-1368.2(c). A lack of information about that lengthy, mandatory term of supervision (which extends over four years beyond the maximum term of imprisonment) could, perhaps, call the validity of a guilty plea into question. I’m not aware of any North Carolina case law, but when the issue has come up in other states, it generally has been resolved in the defendant’s favor. See People v. Catu, 825 N.E.2d 1081 (N.Y. 2005) (“Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction.”); State v. Johnson, 864 A.2d 400 (N.J. 2005) (vacating a plea when the trial court failed to advise about a mandatory parole period); Helms v. State, 281 P.3d 180 (Kan. Ct. App. 2012) (unpublished) (setting aside a plea when the trial court did not tell the defendant about mandatory postrelease supervision when entering his plea).