PREA Part II: Overview of Substantive Standards

June 18th, 2013
By Jamie Markham

My last post discussed the applicability of the Prison Rape Elimination Act (PREA) to North Carolina’s jails. Today’s post looks at the substantive standards themselves. These are the standards with which state prisons must comply to avoid the state losing five percent of certain federal grant funds, and with which local jails may have to comply for one of the reasons outlined in my prior post.

The overarching theme of PREA is that covered agencies must adopt a written policy of zero tolerance toward all forms of sexual abuse and sexual harassment. 28 C.F.R. § 115.11. Sexual abuse and sexual harassment are defined broadly to include all the types of contact, threats, advances, displays, and comments you would expect. § 115.6. Some of the PREA standards will already be satisfied under sheriffs’ existing regulatory, statutory, and constitutional duties to protect the inmates in their custody. See, e.g., G.S. 153A-224(a) (duty to protect prisoners from assaults by other prisoners). But some will not. The summary that follows emphasizes those standards that strike me as most likely to require substantial changes to current jail practices in North Carolina.

Supervision and monitoring. PREA standards do not set a specific staff-to-inmate ratio for jails, but they do require “adequate levels of staffing,” augmented by video monitoring where applicable. § 115.13. Facilities are required to adopt a policy of having intermediate or higher-level supervisors conduct unannounced rounds on both day and night shifts to deter staff sexual abuse and harassment. § 115.13(d). Supervisor rounds are not required under existing North Carolina regulations. See 10A NCAC 14J .0601 (requiring observations by detention officers twice per hour for all inmates, and four times per hour for inmates displaying certain behaviors).

Youthful inmates. Inmates under age 18 placed in adult jails must, under § 115.14, be housed in areas where they have no sight, sound, or physical contact with adult inmates through use of a shared dayroom, common space, shower area, or sleeping quarters. Outside of housing areas, facilities have two options under PREA: either maintain sight and sound separation between youthful inmates and adult inmates, or provide direct staff supervision of the inmates. Id. These rules go beyond existing North Carolina regulations, which require only that male inmates under 18 be confined in separate cells from adult inmates during sleeping hours. 10A NCAC 14J .0303. Our regulations include no similar provision for women, and make no mention of separation or special supervision requirements outside of housing units. PREA discourages facilities from using isolation to comply with the segregation requirement. The standards also direct that young inmates be allowed daily large-muscle exercise, which goes beyond the three-days-per-week requirement that kicks in after 14 consecutive days of confinement under North Carolina regulations. 10A NCAC 14J .1004.

Cross-gender viewing and searches. Under § 115.15, facilities may not conduct cross-gender strip searches or visual body cavity searches, except in exigent circumstances or when performed by medical staff—an approach the School of Government has been recommending for almost 30 years. See Michael R. Smith, Searches of Newly Admitted Detainees, Jail Law Bulletin (Feb. 1986). As of August 20, 2015, facilities rated for over 50 inmates may not do cross-gender pat-down searches of women absent exigent circumstances. The deadline is August 21, 2017 for smaller facilities. § 115.15. PREA also requires a knock-and-announce rule for opposite gender entries into housing areas, and prohibits physical examinations solely to confirm the genital status of a transgender or intersex inmate. Id.

Hiring and promotion. Agencies may not hire, promote, or enlist the services of anyone with a record of any sexual abuse in a confinement facility, or of sexual abuse involving force or coercion in the community, if that person may come into contact with inmates. § 115.17. Before hiring a new employee an agency must conduct a criminal background check and make its best effort to contact all prior institutional employers for information on allegations of sexual abuse. The agency must also conduct background checks or conduct similar investigations on existing employees and contractors every five years. Id.

Education and training. Agencies must, under § 115.31, train all employees on a list of topics related to sexual abuse, including avoiding inappropriate relationships with inmates; communicating effectively with gay, lesbian, bisexual, transgender, intersex, or gender nonconforming inmates; and PREA reporting requirements. Refresher training is mandatory every two years. §115.31(c). Special training is required for jail investigators, § 115.34, and medical staff, § 115.35. Inmates must also be educated. Upon intake officers must inform inmates of their right to report sexual abuse, and more comprehensive information must be provided, either in person or by video, within 30 days. § 115.33.

Screening. All inmates must, within 72 hours of their arrival at the facility, be screened for their risk of being sexual abused or sexually abusive toward others. § 115.41. The National PREA Resource Center will make screening tools available on its website. If screening uncovers a prior history of victimization or abuse, staff must ensure that the inmate is offered a follow-up meeting with a medical or mental health provider within 14 days. § 115.81.

Incident reporting. Agencies must provide multiple ways for inmates to privately report incidents of sexual abuse, including at least one way that allows reporting to a public or private entity that is not a part of the agency itself but can communicate with the agency, such that the reporting inmate may remain anonymous. § 115.51.

There are other standards, which are addressed in the many other resources and checklists available from the National PREA Resource Center. For instance, I found this handbook to be particularly helpful. There are also many opportunities for training and technical assistance. Ultimately, though, there is no substitute for reading the PREA standards themselves. They seem daunting at first, with over 125 pages in the Federal Register devoted to PREA. But the actual standards for adult prisons and jails are only 16 pages long, and a careful agency will certainly want to review them.

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Does the Prison Rape Elimination Act Apply to Local Jails?

June 17th, 2013
By Jamie Markham

I have been getting many questions lately about the applicability and impact of the federal Prison Rape Elimination Act, or PREA. Specifically, people want to know the extent to which the law and its accompanying regulatory standards apply to local jails. This post provides some background on PREA and then discusses its applicability and enforceability.

PREA was passed in 2003. Pub. L. No. 108-79, 117 Stat. 972 (2003). Congressional findings included in the law conservatively estimated that 13 percent of the 2.1 million persons incarcerated in America’s prisons and jails have been sexually assaulted. Congress found that, among other things, sexual assaults against inmates traumatize victims, endanger public safety, increase recidivism, spread disease, and, ultimately, violate inmates’ Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment. 42 U.S.C. § 15601. The law created a commission to study the issue, and then directed the Attorney General to issue national standards for the detection, prevention, reduction, and punishment of prison rape. Those standards call for a zero-tolerance policy toward prison rape—though by law they are not to impose substantial additional costs on federal, state, or local authorities. 42 U.S.C. § 15607.

After a decade of study, research, and public comment, the Attorney General issued the final PREA standards on June 20, 2012, which made them effective August 20, 2012. 28 C.F.R. pt. 115. The standards applied to Federal Bureau of Prisons facilities immediately upon their adoption. State compliance, by contrast, is to be enforced indirectly through a grant incentive. Namely, a state will lose five percent of federal grant money it would otherwise receive for prison purposes unless its governor can certify each year that the State has adopted and is in full compliance with PREA standards. 42 U.S.C. § 15607(c). Even if not compliant, a state may avoid losing that cut of its grant money by certifying that it will be used to bring the state into compliance in future years. The audit cycle for state certification begins August 20, 2013, with the first gubernatorial certification reports due August 20, 2014. (A couple of the substantive standards have a delayed effective date, as I will discuss in my next post.)

Does PREA apply to local jails? Yes. The federal statute defines “prison” to include “any confinement facility of a Federal, State, or local government.” 42 U.S.C. § 15609(7). Correspondingly, the PREA standards impose requirements on “agencies,” which are defined as “the unit of a State, local, corporate, or nonprofit authority . . . with direct responsibility for the operation of any facility that confines inmates, detainees, or residents.” 28 C.F.R. § 115.5. With those definitions in place, PREA and its standards apply to all local jails.

But applicability is not the same as enforceability. As discussed above PREA is enforced on the states through the threat of grant reductions, and those grant reductions are triggered by the governor’s certification. The standards explicitly say that the governor’s certification applies only to “facilities under the operational control of the State’s executive branch.” 28 C.F.R. § 115.501(b). The certification must include “facilities operated by private entities on behalf of the State’s executive branch,” id., but it does not include local government entities that house state inmates. The Attorney General’s overview of the standards notes that omission, saying that the governor’s “certification, by its terms, does not encompass facilities under the operational control of counties, cities, or other municipalities.” 77 Fed. Reg. 37106, 37115. So, North Carolina’s locally-administered jails will not be directly included within the governor’s annual PREA certification.

Does that mean jails are off the hook when it comes to PREA? No.

First of all, it is possible that the General Assembly might require jails to comply with PREA as a matter of state law. Pending legislation, H 585, would direct the state prison system and all juvenile facilities to comply with PREA, plain and simple. Some prior versions of the bill have also required jails to comply, and some versions have not. The most recent version of the bill takes what appears to be a middle ground, proclaiming it to be the policy of the General Assembly that local jails “should comply” with PREA.

Regardless of how H 585 plays out, PREA may impact jails in several other ways.

Federal prisoners. Some North Carolina jails house federal inmates for the Federal Bureau of Prisons, the U.S. Marshals Service, or Immigration and Customs Enforcement. Those inmates are housed pursuant to contracts between the county and the United States. G.S. 162-34. PREA standards require that any agency “that contracts for the confinement of its inmates with private agencies or other entities, including other government agencies, shall in include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards.” 28 C.F.R. § 115.12 (emphasis added). The contract must provide for “monitoring to ensure that the contractor is complying with the PREA standards.” Id. I have already heard from a couple of sheriffs that BOP has discussed including a PREA-compliance clause in its contracts with the counties. PREA compliance may be worthwhile for jails that make a lot of money housing federal inmates.

Statewide Misdemeanant Confinement Program (SMCP). The SMCP, discussed in detail here, is a program through which counties may volunteer to house certain misdemeanor inmates. Counties contract with the Department of Public Safety to house SMCP inmates under G.S. 148-32.1. Like the contracts with the federal government described above, SMCP contracts are contracts for the confinement of an agency’s inmates, and thus appear to be required under § 115.12 to include a PREA-compliance clause in any new or renewed contract. Today, 50 of North Carolina’s 100 counties participate in the SMCP.

Accreditation. Some North Carolina jails are accredited by national organizations like the American Correctional Association. PREA says that no accrediting agency may receive federal grant funds unless it adopts accreditation standards consistent with the PREA standards. 42 U.S.C. § 15608. As a result, any jail that has or is seeking accreditation may wind up effectively having to comply with PREA as a part of the accreditation process.

Civil liability. Even if there is no direct financial penalty for a local jail that fails to comply with PREA, there is some concern that the federal standards may evolve into a standard of care in civil actions related to inmate sexual abuse. That is a legitimate concern, but jails should also bear in mind that compliance with the standards does not establish a safe harbor from any civil claim related to sexual abuse.

To conclude, even if there is no direct financial penalty to anyone for a jail’s failure to adopt the PREA standards, compliance may eventually be required (a) under potential state law, (b) as a matter of contract, (c) as part of the accreditation process, or (d) to minimize the risk of civil liability. Another possibility—not to be lost in all this technical discussion of federal regulations—is that a sheriff might decide to adopt the standards because he or she believes it is the right thing to do to protect the inmates and staff for whom he or she is responsible.

I’ve gone on for over 1,200 words on the applicability and enforcement of PREA without saying anything about the substance of the standards themselves. I’ll do that in my next post.

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News Roundup

June 14th, 2013
By Jeff Welty

The Racial Justice Act is nearing repeal. Both chambers of the General Assembly have passed S 306, an omnibus capital punishment bill that does away with the Act. Governor McCrory has previously criticized the Act, so a veto is not likely. The News and Observer editorializes against the repeal here. Assuming that the Act is repealed, litigation will ensue over whether defendants who have already filed claims under the Act have a vested right to have their claims heard despite the repeal. In other news:

Gun bill. the General Assembly is on the precipice of passing H 937, an omnibus firearms bill that, among other things, (1) requires the clerk of court to report certain information – such as certain involuntary commitments, findings of incompetency, and findings of not guilty by reason of insanity – to the National Instant Background Check System within 48 hours; (2) repeals the requirement that individuals seeking to purchase a pistol first get a permit from the sheriff; (3) further restricts local government authority to prohibit concealed handguns at recreational facilities like greenways; and (4) creates a new “armed habitual felon” status for a person who, having been convicted of one “firearm-related felony,” commits a second. The bill appears to have passed both chambers in slightly different forms, and has been engrossed, whatever that means. My vague understanding is, it’s close.

NSA data collection. The controversy over the NSA’s data collection programs continues. Congress held a hearing at which the NSA director faced some tough questions, and the ACLU has filed suit in its capacity as a Verizon customer.

Elderly marijuana trafficker? Loving husband? Both? Across the border in South Carolina, a 66-year-old man was charged with drug trafficking after he was found growing 137 marijuana plants in his back yard. He “claims he has been growing the marijuana to assist his wife of 40 years who suffers from fibromyalgia and chronic obstructive pulmonary disease. The drugs increase her appetite and help her sleep.” The defendant told the media that he has “a moral obligation to make [his] wife as comfortable as possible.” The story notes that he “welcomed the police into his home voluntarily and made some coffee while they confiscated his plants.” He was released on his own recognizance.

Women’s court apparel. Finally, the Wall Street Journal Law Blog notes here that a (male) Tennessee judge circulated a memo to the local bar stating that “women attorneys were not being held to the same standard as . . . men” as far as professional dress, and advising that “a jacket with sleeves below the elbow is appropriate [for court] or a professional dress equivalent.” Acknowledging that “[i]t’s sort of a delicate issue,” the judge said he was moved to action after seeing too many women in sleeveless dresses and one in a golf shirt, and hearing from another judge about a female attorney who appeared in court in sweatpants. Look, I agree that wearing sweatpants to court is not OK. But I would be very hesitant to dictate a dress code for women. It’s a lot easier being a guy, when your fashion choices pretty much come down to blue suit vs. gray suit.

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Jury Instructions for DWI

June 13th, 2013
By Shea Denning

Forget all your legal training. Pretend you are a juror in a DWI case.

Facts. The following facts were established at trial:

The defendant was stopped at a checkpoint. The officer smelled alcohol and defendant admitted that he had consumed two glasses of wine earlier in the evening.

No field sobriety tests were administered, and the defendant was arrested. He blew into the breath testing machine, which registered a result of .08.

The officer asked the defendant to blow a second time. The defendant appeared to blow, but the result did not register. The officer believed that the defendant intentionally refused to provide a second sample and terminated testing.

The defendant testified that he did not refuse testing, but was unable, due to asthma, to blow sufficiently hard a second time to register a result.

The officer testifies on cross-examination that he occasionally has seen breath test results vary, with the second test being lower than the first.

The defendant’s attorney argued that the result of defendant’s second test, had he been able to provide a sufficient breath sample, easily could have been a .06 or lower. He insists that the State has failed to prove that the defendant was driving while impaired.

Jury Instructions. The judge tells the jury that, to find the defendant guilty of impaired driving, the State must prove three things beyond a reasonable doubt:

First, that the defendant was driving a vehicle;

Second, that the defendant was driving that vehicle upon a street within the State;

And, third, that at the time the defendant was driving that vehicle the defendant had consumed sufficient alcohol that at any relevant time after the driving the defendant had an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath.

The judge further advises:  “The results of a chemical analysis are deemed sufficient evidence to prove a person’s alcohol concentration.”

She tells you that if you find these three elements beyond a reasonable doubt, it is your duty to return a verdict of guilty. She says that if you have a reasonable doubt about any of these factors, your duty is to return a verdict of not guilty.

Deliberations. The jury begins to discuss the case. You harbor some doubt, in light of the evidence, about whether the defendant’s alcohol concentration was a .08. But you aren’t sure whether that issue is before you. On the one hand, the judge has told you that the .08 result “shall be deemed sufficient evidence to prove a person’s alcohol concentration.” But she also has said that if you have a reasonable doubt, your duty is to return a verdict of not guilty. Your fellow jurors disagree about how to reconcile these statements.

Now use your legal training to help out your confused-juror-self.

Shall be deemed. The court of appeals in State v. Narron, 193 N.C. App. 76 (2008), held that the provision of G.S. 20-138.1(a)(2) stating that “[t]he results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration,” does not establish an unconstitutional presumption. Indeed, the court explained that the provision does not establish a presumption at all. Instead, it “simply states the standard for prima facie evidence of a defendant’s alcohol concentration.” Narron, 193 N.C. App. at 83. “In other words,” the Narron court explained, “the statute simply authorizes the jury to find that the report is what it purports to be—the results of a chemical analysis showing the defendant’s alcohol concentration.” Id. at 84.

Did the judge err? Given that the “shall be deemed sufficient evidence” language merely establishes the standard for prima facie proof, did the judge err by restating the provision to the jury in her instructions? The language appears in the pattern jury instructions for impaired driving, see North Carolina Pattern Jury Instructions for Criminal Cases, Vol. III, N.C.P.I.—Criminal 270.00 (June 2011), and the trial court in Narron gave such an instruction. The court of appeals in Narron stated that while “there was no need for the trial court to call to the jury’s attention that the chemical analysis was the basis of the trial court’s determination that the State had presented prima facie proof of the element” since, “[i]f a case is submitted to the jury, then by definition, the court has determined that the State presented ‘sufficient evidence to prove’ each of the elements of the offense.” Id. at 85. However, Narron found no prejudice to the defendant in the court’s statement to the jury and concluded that the instructions adequately informed the jury of the law.

The court of appeals relied upon Narron in determining that giving such an instruction was not error in State v. Langley, 731 S.E.2d 862 (N.C. App. September 18, 2012) (unpublished op.). And, in State v. Fulton, 731 S.E.2d 274 (N.C. App. August 21, 2012) (unpublished op.), the court rejected the defendant’s contention that he was entitled to a special instruction explaining the that the results do not create a legal presumption and that a jury is not compelled to return a verdict of guilty where a chemical analysis generates a result of .08 or greater.

How should the judge instruct the jury? Even if it is not legal error to give the pattern instruction, is that the best way to instruct jurors in a per se impaired driving case? Tell us how you think jurors ought to be instructed.

How should jurors be instructed in a per se DWI case?

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Advising a Defendant of the Maximum Possible Sentence During a Habitual Felon Plea

June 12th, 2013
By Jeff Welty

When a defendant pleads guilty, the judge is required to “inform[] him of the maximum possible sentence” associated with his offense. G.S. 15A-1022(a)(6). When a defendant pleads guilty to being a habitual felon, he must be informed of the maximum sentence he faces as a habitual felon, because the enhanced sentence is a “direct consequence of [the defendant’s] plea.” State v. McNeill, 158 N.C. App. 96 (2003). See also State v. Bailey, 157 N.C. App. 80 (2003) (“[A] trial court may not accept a defendant’s plea of guilty as an habitual felon without first addressing the defendant personally and making the . . . inquiries of that defendant as required by” G.S. 15A-1022, including regarding the maximum possible sentence). A failure to advise the defendant properly may violate the constitutional principles outlined in Boykin v. Alabama, 395 U.S. 238 (1969), in addition to contravening the statute.

But what exactly is the “maximum possible sentence”? Should it be adjusted for the defendant’s prior record level? Based on any provisions in his plea agreement, if there is one? In a case in which the state is not pursuing any aggravating factors, should it be the top of the aggravated range or the top of the presumptive? Jessie Smith explored some of these issues outside the habitual felon context in this prior post. The most common (and probably safest) practice under current law is for the judge to inform the defendant of the maximum sentence that corresponds to the highest minimum sentence in the aggravated range of prior record level VI for the enhanced offense class. (Recall that under prior law, habitual felons were always sentenced as Class C offenders, but for substantive felonies committed on or after December 1, 2011, the Justice Reinvestment Act provides that they should be sentenced “four classes higher” than their natural class, capped at Class C. G.S. 14-7.6.) See State v. Hayes, 2005 WL 1669612 (N.C. Ct. App. July 19, 2005) (unpublished) (the defendant pled guilty to several substantive felonies and to being a habitual felon; during the plea colloquy, the trial judge advised the defendant that he could be sentenced to as little as 44 months [the minimum term at the bottom of the mitigated range for Class C, prior record level I] or as many as 261 months [the maximum term corresponding to the minimum term at the top of the aggravated range for Class C, prior record level VI]; this was proper).

What if the judge doesn’t do that? In some cases, the appellate courts have been quite exacting about the information a trial judge must provide to a defendant. For example, in State v. Reynolds, __ N.C. App. __, 721 S.E.2d 333 (2012), the defendant pled guilty to felony breaking and entering and felony larceny, and to being a habitual felon. His plea agreement provided specifically for a minimum term of 135 months, and the trial judge advised him that he would receive a minimum of 135 months and a maximum term of 168 months. In fact, the maximum term that corresponded to a 135 month minimum term was 171 months, and that was what the written judgment reflected. The court of appeals found that the trial judge had failed to advise the defendant properly of the maximum sentence he faced and that the error was not harmless. Cf. State v. Smith, 2012 WL 4878878 (N.C. Ct. App. Oct. 16, 2012) (unpublished) (the trial judge did not conduct a full plea colloquy, instead allowing the defendant to “stipulate” to being a habitual felon; among the defects in this procedure was that the judge “neglected to explain the maximum and minimum sentence for the underlying offense that would apply with [the defendant’s] conviction for attaining habitual felon status”).

However, the appellate courts are not always so particular. They have repeatedly affirmed cases in which the trial judge gave rather cursory explanations of the maximum possible sentence. For example:

  • State v. Szucs, 207 N.C. App. 694 (2010) (trial court advised defendant that pleading guilty to being a habitual felon would expose him to a “much higher” sentence than would otherwise apply and that he would be sentenced as a Class C offender; following Williams, infra, the court of appeals ruled that this was sufficient compliance with G.S. 15A-1022(a)(6))
  • State v. Pope, 2008 WL 4911803 (N.C. Ct. App. Nov. 18, 2008) (unpublished) (during defendant’s guilty plea to being a habitual felon, the trial court simply asked him whether he understood “what habitual felon status means . . . [i]nsofar as the sentence,” and received an affirmative response; although this did not comply with G.S. 15A-1022(a), it was harmless error as the plea overall appeared to be knowing and voluntary)
  • State v. Handy, 2007 WL 2034111 (N.C. Ct. App. July 17, 2007) (unpublished) (defendant was convicted at trial of possession of cocaine and pled guilty to being a habitual felon; following Williams, infra, the court of appeals found that the trial judge sufficiently advised the defendant that he would be “punished as a Class C felon” based on his guilty plea)
  • State v. Williams, 133 N.C. App. 326 (1999) (defendant was sufficiently made “aware of the direct consequences of her guilty plea” where the trial court advised her that she would be sentenced as a Class C felon under the habitual felon statutes rather than as a Class G felon; the judge did not specify how many months of imprisonment could be imposed)

It seems to me that the judge in Reynolds came much closer to complying with G.S. 15A-1022(a)(6) than the judge in Pope, yet the former was reversed while the latter was not. Maybe that’s just an anomaly, or maybe the appellate courts view providing inaccurate information – even if only slightly inaccurate – as inherently more troubling than providing too little information.

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Why Trafficking Really Bites

June 11th, 2013
By Jessica Smith

Drug trafficking offenses can lead to really long sentences, and not just because of the special minimums and maximums that apply to those crimes. Consider this example: My husband and I agree to grow marijuana. We grow and harvest 50 pounds of it. We then arrange to sell it to a street-level distributor. Finally, we drive it in a truck to the distributor, where we hand over the ganja in exchange for a pile of money. How many trafficking offenses have we committed?

 The answer is SIX! They are:

  • trafficking in marijuana by manufacturing
  • trafficking in marijuana by sale
  • trafficking in marijuana by delivery
  • trafficking in marijuana by transporting
  • trafficking in marijuana by possession
  • and, the drum roll please . . . conspiracy to traffic in marijuana.

State v. Lyons, 330 N.C. 298 (1991); State v. Perry, 316 N.C. 87 (1986).

And that’s not all! The conspiracy to traffic is punished at the same level as a completed trafficking offense, not one level lower as it typically the case for conspiracy. See, e.g., G.S. 90-95(h)(1) and (i). Now add in those special minimums and maximums for trafficking offenses, run them consecutively and my husband and I are looking at some very serious time apart in prison. And we haven’t even gotten to the fines that apply to drug trafficking!

Compare that to plain old sale or delivery of a controlled substance. If I sell and deliver a controlled substance, it’s just one offense. State v. Moore, 327 N.C. 378 (1990).

As I indicated at the outset, trafficking offenses can really bite.

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Beyond Legislative Solutions to Melendez-Diaz

June 10th, 2013
By Jessica Smith

My recent paper (here) on the use of remote testimony in criminal cases involving forensic analysts was written in part because of the flood of interest in legislative solutions to Melendez-Diaz. That case held that forensic reports are testimonial and subject to the new Crawford confrontation clause analysis. One slam dunk solution to the Melendez-Diaz issue is for the State to bring all of the analysts to court. But that’s expensive so folks have been looking for other solutions. Many of the solutions that I’ve heard focus on legislative changes. Although there are some legislative solutions, in the end there is only so much legislating that can be done regarding a constitutional issue. So that got me wondering: What practical solutions are out there? Here are a few ideas. Please weigh in on whether these are viable and share any additional thoughts that you have. If you prefer to contact me directly, here’s my email: smithj@sog.unc.edu

1.  Encourage Officers to Become Certified Chemical Analysts. Many officers already are certified to perform a chemical analysis in DWI cases. When that’s the case, there is no Melendez-Diaz issue in the garden variety case. Because the officer has to testify as the primary fact witness for the State, the officer already is in court.

2.  Use Blood Tests Sparingly in DWI Cases. Although it strengthens the prosecution’s case to have a blood test, they aren’t needed in every situation. Suppose for example the officer can testify: “I saw the defendant driving at 2 am in an area filled with drinking establishments. Defendant was weaving out of the lane of traffic, drove through a stop sign, and was driving 15 miles below the posted speed limit. When I stopped his car his eyes were glassy, he reeked of alcohol and he was unsteady on his feet. Empty beer bottles littered the passenger seat. He failed field sobriety tests.” A blood test would amplify the case but on these facts it’s not needed. One way to ration limited resources to use them only when they are required. That means save blood tests for cases where guilt can’t be established without them or where the charge is very serious (e.g., second-degree murder).

3.  Pair Blood Analysts With Officers & Improve Case Scheduling. All officers have pre-scheduled court dates. If a blood analyst is paired with a particular officer, the two would share the same court dates. So for example, every blood test submitted by Officer X gets handled by Analyst Y. If Officer X’s blood test DWI cases are scheduled on the same day, Analyst Y only has to come to court on that one day to testify in Officer X’s cases.

4.  Regional Labs. They cost money, but they’d create efficiencies in terms of analyst travel time.

5.  Change Lab Procedures for Using Analysts. By their nature, some cases require a variety of different types of analysts. But some cases only require one type of analyst. When that’s the case, make it the same person, thereby reducing the number of potential people who have to testify in court.

6.  Change Procedures for Chain of Custody. Chain of custody information is testimonial. If seven people sign the custody log as evidence custodians, this creates the possibility of having to bring a handful of people to court just to authenticate the evidence. If procedures are changed so that no more than two people do this job for every case, it reduces the number of people required to prove chain of custody.

7.  Videotape Testing. This idea steps half-way into the legal area but here goes. If a forensic analysis is videotaped so that a testifying analyst can see each and every step of the process, including calibrating equipment, etc., it’s arguably as if the testifying analyst is standing by the testing analyst’s side. Although Williams cast a great veil of uncertainty over the use of substitute analysts, this is more than the testifying analyst had in that case, which of course was affirmed by the high court.

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News Roundup

June 7th, 2013
By Jeff Welty

The top story of the week may be the impending repeal of the Racial Justice Act. On Wednesday, the House voted 77-39, mostly along party lines, in favor of the repeal bill. The Senate previously approved a slightly different version of the bill. It appears that the Senate plans to approve the House version next Tuesday, at which point, the bill would go to the Governor. You can chart the progress of the bill, S 306, here.

In other news:

  • “Moral Mondays.” More than 150 people were arrested at the General Assembly during this week’s “Moral Monday” protest. The News and Observer has the story here. The sheer volume may be stressing the criminal justice system: some arrestees apparently spent many hours in holding cells prior to their initial appearances, which I imagine is due to an overwhelming number of arrestees for a limited number of magistrates. I’m sure that Wake County’s district court courtrooms are bracing for an influx of contested cases with potential constitutional defenses.
  • NSA surveillance. The National Security Agency is gathering all kinds of data from all kinds of places about all kinds of people, generally with the approval of the Foreign Intelligence Surveillance Court. The story’s moving too quickly for me to summarize it accurately, but the latest New York Times article is here, and the Volokh Conspiracy has a robust conversation about the legality of the various surveillance programs that have been disclosed.
  • Race and marijuana arrests. The ACLU came out with a report this week, the gist of which, according to the organization’s press release, is: “Black people are 3.7 times more likely to be arrested for marijuana possession than white people despite comparable usage rates.” The full report is available here.
  • Race and federal judges. Speaking of race, Fifth Circuit Judge Edith Jones, who has been viewed as a potential Republican Supreme Court nominee, was recently accused of making racist remarks during a speech at the University of Pennsylvania. The accusations are detailed in a misconduct complaint, available here. The most serious allegation may be that she said that “racial groups like African Americans and Hispanics are predisposed to crime.” (The remarks apparently weren’t recorded.) One of Judge Jones’s former law clerks offers a perspective very different from the complainants’ here.
  • Violent crime rising. While crime rates have generally been dropping for years – even decades – there was an uptick in violent crime in 2012. Is this an outlier or an inflection point? We’ll have to wait and see. The New York Times has the story here.
  • The lighter side. A couple of much lighter stories. First, Duke Law grad Sean Memon, an associate at a large New York law firm, became the first solo winner of the Washington Post Hunt, a preposterously difficult trivia/riddle/scavenger competition normally won by a team of brainiacs working together. Well done! Second, do you pronounce the word lawyer “law-yer” or “loyer”? The answer varies with geography, as noted in this extremely interesting infographic. I didn’t grow up in the South, but I’ve been in North Carolina for more than 15 years, so I switch back and forth between the two.
  • School of Government stuff. Finally, a couple of School of Government offerings to announce. Consider registering for defender trial school, which runs July 8-12, 2013, at the School of Government. It’s free for IDS employees, $600 for private assigned counsel, and you must bring your own case to work on. Details here. And, consider following Jessie Smith on Twitter. @ProfJessieSmith is tweeting prolifically about criminal law issues. (Of course, if you’re a Twitter user, you should long ago have started following Jamie Markham, @jamie_markham, who is the School of Government’s unofficial Associate Dean for Twitter.)

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Do Old DWIs Count toward Felony Prior Record Level?

June 6th, 2013
By Jamie Markham

Do old (as in, pre-1997) impaired driving convictions count toward felony prior record level? My answer is that they probably do—at least back to 1983—but there is no clear guidance from the appellate courts.

When Structured Sentencing was first enacted in 1994, DWIs did not count toward felony prior record level. G.S. 15A-1340.14 (1994). Only Class 1 and, later (under S.L. 1995-507), Class A1 misdemeanors counted, and Chapter 20 offenses aside from misdemeanor death by vehicle were explicitly excluded.

In 1997, the General Assembly amended G.S. 15A-1340.14(b)(5) to say that prior impaired driving convictions under G.S. 20-138.1 would count for 1 point toward a person’s record. S.L. 1997-486. The effective date for the relevant part of that legislation said merely that it was “effective December 1, 1997”—with no indication about the convictions or sentences to which it applied. To avoid an ex post facto issue, however, it has always been assumed that the change would only apply to the sentencing of offenses committed on or after December 1, 1997. To apply it to earlier offenses would impermissibly increase punishment in a way that the defendant would not have been aware of at the time of his or her crime. A usage note to that effect has long been on the back of the prior record level worksheet (form AOC-CR-600).

But that limitation is for the offense date of the crime being sentenced. It does not relate to the date of the prior DWI convictions themselves. There is no constitutional problem with counting them; as of December 1, 1997, would-be felons who reviewed G.S. 15A-1340.14 would have been on notice that their prior DWIs would count for a point toward the sentencing of any subsequent offense.

Nevertheless, there is a plausible statutory argument that the legislature’s failure to specify that older DWIs count means that they should not. There may be something to that as a matter of lenity. On the other hand, the statute itself refers to “prior” convictions, and prior record level determinations are inherently backward looking. For example, the legislation enacting Structured Sentencing itself did not specify that pre–October 1, 1994 convictions would count toward a defendant’s record, but the appellate courts have had little trouble concluding that they do. See State v. Rich, 130 N.C. App. 113 (1998) (noting in 1998 that the General Assembly placed no limitations upon the sentencing court’s consideration of prior convictions occurring more than 10 years before the conviction being sentenced). Many appellate cases approve the counting of pre-1994 convictions toward a defendant’s record. And that’s probably right as a matter of legislative intent, as I doubt the General Assembly intended to give everyone a clean slate as we transitioned from Fair Sentencing to Structured Sentencing.

What little case law there is points in the same direction for older DWIs. In State v. Armstrong, 729 S.E.2d 730 (2012) (unpublished), the court of appeals saw no problem with counting a 1987 DWI toward a series of recent drug crimes. But Armstrong is unpublished, and the issue in the case was the defendant’s stipulation to the prior conviction, not the propriety of counting the conviction itself.

Even if pre-1997 DWIs do count toward a defendant’s record, there may be some argument that pre-1983 DWIs do not. Before 1983, DWI was set out in G.S. 20-138, not G.S. 20-138.1. The felony prior record level statute refers only to impaired driving under G.S. 20-138.1, and so arguably excludes older DWIs committed under the prior statute.

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Posted in Motor Vehicles, Sentencing, Uncategorized | 2 Comments »

Damage to a Computer

June 5th, 2013
By Jessica Smith

A caller recently asked this: If a defendant throws another person’s computer against the wall and breaks it, can the defendant be charged with the felony of Damaging a Computer?

We probably all agree that this conduct constitutes injury to personal property. The question about the computer offense however sent me running to my book, NC Crimes (No, I can’t remember everything in it either!).

G.S. 14-455(a) makes it a crime to:

(1) willfully and

(2) without authorization

(3) alter, damage, or destroy

(4) a computer, computer program, computer system, computer network, or any part thereof.

The base offense is a Class 1 misdemeanor. G.S. 14-455(a). However, if the damage is more than $1,000, the offense is a Class G felony. Id. And of course, if the felony version is charged, the relevant amount of damage has to be alleged in the charging instrument and proved at trial.

So back to our example. The defendant willfully and without authorization altered, damaged, or destroyed a computer. I think that the General Assembly probably had viruses and hacking in mind when the statute was enacted, but there is nothing in the statute’s language that so limits its application.

Assuming that the misdemeanor version of the offense has been committed, there has to be alteration, damage, or destruction of more than $1,000 to make a felony. If the computer was destroyed and it was worth more than $1,000, that will probably do it. If it was damaged and there is a repair estimate at over $1,000, that will probably do it as well. In the caller’s example, the victim presented evidence that the original purchase price of the computer was more than $1,000. Given that we measure value for purposes of felony larceny by fair market value at the time of the offense, I’m not sure that evidence will suffice, particularly when new models and software quickly depreciate the value of even relatively new computers.

I don’t know of any cases on point so these are just my musings. Let me know if you have thoughts on the issue.

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Posted in Crimes and Elements, Uncategorized | 1 Comment »

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