Is It Illegal to Make Pornography in North Carolina?

July 22nd, 2014
By Jeff Welty

Lawyers Weekly ran a brief article a couple of months ago about the above question. The article is here, behind a paywall. What follows is my own analysis of the issue.

Obscenity. The first issue, and the only one addressed by Lawyers’ Weekly, is whether making pornographic movies would violate the obscenity statutes. Specifically, G.S. 14-190.5 makes it a misdemeanor knowingly to “[p]hotograph [oneself] or any other person, for purposes of preparing an obscene film . . . for the purpose of dissemination” or knowingly to “[m]odel[], pose[], act[], or otherwise assist[] in the preparation of any obscene film . . . for the purpose of dissemination.”

At first glance, that might seem to cover the production of pornography, but Lawyers’ Weekly quoted several lawyers, most of whom waffled on the question. The waffling was entirely justified, because G.S. 14-190.1 defines material as obscene only if it depicts sexual conduct in a “prurient” and “patently offensive way” that “lacks serious literary, artistic, political, or scientific value.” Those terms are incredibly vague, but, of course, are constitutionally required. Miller v. California, 413 U.S. 15 (1973) (establishing the boundaries of obscenity for purposes of the First Amendment). Courts have often found pornographic material to fall outside the definition of obscenity, so at least some pornography probably could be produced in North Carolina without running afoul of the obscenity laws.

Prostitution. But perhaps there is another way to approach the issue. Could producing pornography involve a violation of the prostitution laws? Under G.S. 14-203, prostitution includes having sex or performing any sexual act “for the purpose of sexual arousal or gratification for any money or other consideration,” and there’s a reasonable argument that the people depicted in a pornographic video are doing just that.

Case law from other states suggests that the argument isn’t a slam dunk, though. The best-known case in this area is People v. Freeman, 46 Cal.3d 419 (Cal. 1988), where the Supreme Court of California reversed the conviction of a pornography producer under the state’s pandering for prostitution laws. The court found no evidence that the producer paid the actors for the purpose of sexual arousal or gratification. Essentially, the purpose was making money, and any sexual arousal or gratification was incidental. That strikes me as debatable. If I hire a company to trick out a food truck for my planned mobile donut business, most people would say that I paid the company for the purpose of building a truck, even if my ultimate objective is to make money by selling donuts. And Freeman itself cites cases from other states that come to other conclusions.

Even if there were a violation of the prostitution statutes, the Freeman court continued, “the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values.” I think that’s debatable too. If the conduct depicted is otherwise criminal, the First Amendment doesn’t protect it just because it is filmed. In fact, if that were the law, couldn’t a prostitute operate legally simply by being her own “director,” recording the proceedings and giving the recording to the customer?

The bottom line is more waffling. Charging those involved in producing pornography with violating the prostitution laws is a possibility but would raise legal issues. Readers, what do you think of this approach?

Further reading, no pictures. A Rutgers law professor argues that making pornography is protected by the First Amendment and doesn’t constitute prostitution here. Slate asserts here that “[p]orn stars are paid to act,” not to have sex. Also perhaps worth a look are Tonya R. Noldon, Note, Challenging First Amendment Protection of Adult Films with the Use of Prostitution Statutes, 3 Va. Sports and Ent. L.J. 310 (2004), and Jason Shachner, Note, Unwrapped, 24 Health Matrix 345 (2014) (stating that only California and New Hampshire clearly protect the right to produce pornography).

State v. Granger adds to State’s Missouri v. McNeely jurisprudence

July 21st, 2014
By Shea Denning

State v. Granger, decided last week, is the latest case in which the North Carolina Court of Appeals has considered, in light of Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552 (2013), whether an exigency supported the warrantless withdrawal of an impaired driving suspect’s blood over the person’s objection. Readers may recall that the United States Supreme Court held in McNeely that the natural dissipation of alcohol, standing alone, does not create an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement.  The Granger court held that exigent circumstances justified the warrantless withdrawal of the defendant’s blood about an hour and a half after he drove when it would have taken an additional 40 minutes to obtain a warrant and it was impractical for the lone investigating officer to leave the defendant unattended in the hospital.


The defendant in Granger was driving in Wilmington around 2:19 a.m. when he rear-ended another vehicle. Officer Eric Lippert of the Wilmington Police Department responded to the report of an accident.  When he approached the defendant’s car, he noticed that the defendant was in pain and that he smelled of alcohol. The defendant was taken to the hospital by ambulance.

Officer Lippert spoke with the defendant at the hospital. He noticed during their exchange that the defendant’s eyes were bloodshot and glassy.  The defendant told the officer that he had been drinking.  He said he had taken “‘three shots’” between 10 p.m. and 11 p.m. and that he had taken his last shot twenty minutes before the accident, around 2 a.m. The officer administered two portable breath tests to the defendant. Both were positive for alcohol. He also administered the horizontal gaze nystagmus test, which the defendant “did not pass.”

The officer determined that he has probable cause to obtain a blood sample from the defendant. (It is not clear from the court of appeals’ opinion or the record whether the officer then charged the defendant with impaired driving.  Being charged with an implied consent offense is a prerequisite to obtaining a chemical analysis of a person pursuant to the state’s implied-consent laws. ) The officer then (at 3:10 a.m.) read the defendant his implied consent rights, and waited for a nurse to draw defendant’s blood for analysis. A nurse became available 40 minutes later, at 3:50 a.m., and the officer asked the defendant to submit to the blood draw. The defendant refused.

The officer instructed the nurse to draw the defendant’s blood over the defendant’s objection. A test of the blood sample revealed an alcohol concentration of 0.15.

Procedural History.

The defendant was convicted of DWI in district court, and appealed for trial de novo in superior court. He moved in superior court to suppress the blood test results on the basis that his Sixth Amendment right to confront witnesses had been violated by the State’s failure to prove the chain of custody of his blood sample. He also filed a motion to dismiss, arguing that his Fourth Amendment rights were violated because his blood was withdrawn at the behest of the police officer without a warrant.

The superior court determined that there were sufficient exigent circumstances to justify the warrantless withdrawal of the defendant’s blood and therefore denied the defendant’s latter motion, which it characterized as a “motion to suppress.” The superior court did not rule on the defendant’s Sixth Amendment argument. The defendant pled guilty, preserving his right to appeal the superior court’s denial of his motion to suppress.

The defendant argued on appeal that the trial court erred in denying his motion to suppress the results  of the blood test as there was no exigency sufficient to excuse the Fourth Amendment’s warrant requirement.

Court of Appeals Opinion.

The court of appeals held that the following factors supported the trial court’s conclusion that exigent circumstances existed:

  • The officer was concerned about the dissipation of alcohol from the defendant’s blood since the officer developed probable cause for DWI more than an hour after the accident.
  • The officer was concerned about dissipation “‘due to delays from the warrant application process[.]’“ (Slip op. at 15.)  The officer estimated that it would take at least 40 minutes to travel to the magistrate’s office, obtain a warrant, and return to the hospital.
  • The officer was investigating the matter alone “and would have had to call and wait for another officer to arrive before he could travel to the magistrate to obtain a search warrant.” (Slip op. at 16.)
  • The officer was concerned that if he left the defendant unattended or waited any longer for a blood draw, the hospital might administer pain medication that would “contaminat[e]” the defendant’s blood sample.

Predictable Outcome . . . But Curious Considerations.

While some of the specific facts relied upon by the appellate court are curious, the holding in Granger isn’t particularly surprising. After all, the circumstances closely resemble those held to constitute an exigency in Schmerber v. California, 384 U.S. 757 (1966). In both circumstances, the defendant was taken to a hospital for medical treatment following a vehicular accident, and time was required to investigate the accident. While the “40 plus minute delay” that would have resulted in Granger had the officer sought a warrant is not particularly lengthy (Slip op. at 11), it arguably could have, under McNeely, ”significantly undermin[ed] the efficacy of the search,” and thus amounted to the sort of circumstance in which obtaining a warrant is “impractical.” McNeely, 133 S.Ct at 1561.

As for the curious facts, I’m not sure why the officer could not have left the defendant alone in the hospital while he applied for a warrant. [Update: Though not articulated in the trial court evidence or findings, an informed reader advised that departmental procedures typically require that a law enforcement officer who has probable cause to arrest a suspect for DWI  have an officer watch the suspect patient at all times so the patient cannot leave the hospital voluntarily.] And given that the officer testified that he would not stop or interfere with a person’s medical treatment, it is not clear how his remaining in the hospital would have prevented pain medication from being administered if deemed necessary. Moreover, the State has had previous success in establishing the reliability of blood tests performed on samples obtained after pain medication had been administered.  See State v. Armstrong, 203 N.C. App. 399, 418-19 (2010) (noting that State presented three witnesses who testified that the drug administered to the defendant did not increase his blood-alcohol level; cf. BJ’s Wholesale Club v. W.C.A.B. (Pearson), 43 A.3d 559, 564 (Pa. Commw. Ct. 2012) (noting the lack of competent evidence that the prescription pain medication and narcotic taken by the claimant “in any way caused or contributed to her high blood alcohol level”).

The court’s reliance on these factors leaves me wondering whether it would have found an exigency if two officers had been present—even factoring in the same delay. Future jurisprudence will no doubt continue to clarify the parameters of exigency for warrantless blood draws.


News Roundup

July 18th, 2014
By Jeff Welty

Nationally, the biggest criminal law story of the week was the decision by a federal judge in California declaring the state’s death penalty unconstitutional. The case is Jones v. Chappell, and the essence of the Eighth Amendment argument is this:

Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

Because long delays are a feature of the capital punishment system in nearly every death penalty state, advocates on both sides are interested in the potential application of this argument in other jurisdictions. Commentary on the decision is available here at Sentencing Law and Policy, here at the Volokh Conspiracy, and here at Crime and Consequences.

In other news:

Kraken convicted. Greg Hardy, a defensive lineman for the Carolina Panthers, was convicted this week in district court of assault on a female and communicating threats. The charges arose after Hardy had an altercation with a young woman in his apartment. He received a probationary sentence but has appealed for trial de novo in superior court. The Charlotte Observer has the story here. The Panthers haven’t commented publicly about the verdict but the Cat Crave blog notes that Hardy is likely to be suspended by the NFL, and this NBC story suggests that the Panthers might even cut ties with Hardy altogether. In light of Hardy’s prodigious on-field talent, I would be surprised. In the meantime, the story is giving a bit of new meaning to Hardy’s nickname, the Kraken. A kraken is a giant sea monster that terrorizes oceangoers. Originally, I think the idea was that Hardy was terrorizing opposing quarterbacks, but recent events have given the nickname a more menacing tone.

Friends at the Supreme Court. On a lighter note, the Wall Street Journal recently ran this article, observing that Chief Justice Roberts often refers to lawyers on opposite sides of a case as “friends.” For example, he might tell an attorney, “your friend [i.e., opposing counsel] says that your argument is incompatible with the legislative history.” Lawyers have jumped on the bandwagon, adopting locutions like “my friend’s position disregards the Jones case” or “my friend just conceded that section three is redundant.” But we can’t all be friends. Former Solicitor General Ted Olson says that all the bonhomie is “artificial” and he prefers to skip it.

Funny bits. Finally, fans of grammar and/or Weird Al Yankovic might enjoy his latest music video, Word Crimes. And fans of donuts might enjoy this post at Above the Law, which begins:

Krispy Kreme [recently] celebrated its 77th birthday. The popular doughnut chain opened its doors on July 13, 1937, in Winston-Salem, North Carolina. And what goes better with doughnuts than coffee? Cops. This week, On Remand looks back at Krispy Kreme’s history and a half-dozen cases involving doughnuts and cops, including the strange tale of a man who held a Krispy Kreme truck for ransom.

Work Release

July 17th, 2014
By Jamie Markham

Most people can get behind the idea that inmates should, if able, do some sort of work during their incarceration. By statute, “[i]t is declared to be the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them.” G.S. 148-26. Inmate labor comes in many forms: work by jail inmates to benefit the government (described here); work inside an institution to accrue earned time (described here); work on a community work crew (G.S. 148-32.2); work for Correction Enterprises (which makes some really nice furniture and other products that any North Carolina government employee or retiree may purchase up to $2,500 of per year, G.S. 148-132); and work release. Today’s post is about work release.

Work release is the temporary release of a sentenced inmate to work on a job in the free community, outside the jail or prison, for which the offender is paid by the outside employer. Lots of good things can happen when an inmate is able to participate in work release. The inmate may be able to keep his or her regular job during the term of imprisonment. The sheriff or the prison system may be able to recoup the costs of the prisoner’s keep from the work release earnings. Victims may receive restitution and the inmate’s dependents may receive support payments from work release earnings. And many studies (like this one, for example) have shown a link between work release and lower recidivism rates. Data from the North Carolina Sentencing and Policy Advisory Commission routinely show work release inmates as having a lower percentage of reincarceration within two years of release (16.2% for work release inmates, compared to 24.1% for all inmates released in fiscal year 2008/09, according to the 2012 recidivism report).

Unfortunately, the laws applicable to work release can be a little confusing.

Felonies. When a person is given an active sentence for a felony, the court may recommend work release. G.S. 15A-1351(f). This is merely a recommendation, but under G.S. 148-33.1, the Secretary of Public Safety “shall authorize immediate work-release privileges for any person serving a sentence not exceeding five years in the State prison system and for whom the presiding judge shall have recommended work release.” That requirement is subject to the caveats that the person must have suitable employment and that “custodial and correctional considerations would not be adverse to releasing the person without supervision in the free community.” G.S. 148-33.1(a). “Suitable employment” and “custodial and correctional considerations” are fleshed out in the prison policy on work release. The same policy document also notes that an inmate with a sentence in excess of five years is not eligible for work release until he or she is within three years of the maximum release date. E.0703(c)(1). There is no statute or rule governing court recommendations against work release, but my sense is that such recommendations are generally honored.

Misdemeanors. When a person is given an active sentence for a misdemeanor, the judge may recommend work release. With the consent of the defendant the judge may also order work release. G.S. 15A-1351(f). This mandatory order is an exception to the general separation-of-powers rule that a judge cannot require a custodian to administer a sentence in a particular way. If a judge orders work release for a misdemeanant, the sheriff is obliged to carry out the order—which is why such orders should not be entered without advance coordination between the judge, the lawyers, the sheriff or jail administrator, and, of course, the prospective work release employer. When work release is ordered for a misdemeanant, the order must include the date the work is to begin, the place of confinement, a provision that work release terminates if the offender loses his or her job, and a determination about the disbursement of earnings, as described below. G.S. 15A-1353(f).

Place of confinement. Sometimes a person’s prospective work-release job will not be convenient to his or her ordinary place of confinement. With that in mind, the prison system has authority to move inmates within the prison system to a more suitable facility, and to contract for the housing of work-release inmates in the county jails as provided in G.S. 148-22(a). When a misdemeanant is ordered to work release, the court may, notwithstanding any other provision of law, commit the defendant to a specific jail or prison facility in the county of the sentencing court to facilitate the arrangement. With prior consent the court may sentence the person to a jail or prison in another county. G.S. 15A-1352(d). (Note that this authority may be limited this year as part of a broader plan to remove misdemeanor offenders from the prison system. See Senate Bill 744, section 16C.1.(b).)

Probationers. In general, the court should not make any recommendation for work release at the time of sentencing when the defendant receives a suspended sentence and probation. Any such recommendation may be made at the time of revocation if the defendant’s probation is revoked. G.S. 148-33.1(i). It is a fairly common practice for a judge to order work release during a term of special probation (a split sentence), although there is no explicit statutory authorization for or prohibition against that. (The practice was noted without disapproval in State v. Stallings, 316 N.C. 535 (1986).) The General Statutes likewise do not spell out any rules for work release during a term of Confinement in Response to Violation, although it apparently is not allowed as a matter of policy for a CRV served in prison.

Money. An inmate’s work release earnings generally go to the custodian (DAC or the sheriff, as the case may be), who determines how the money will dispersed. The custodian or court, as appropriate, must determine an amount for things like travel expenses to and from work, child support, and money required to comply with any judgment rendered by the court. G.S. 148-33.1(f). A judge ordering work release should also set the amount to be deducted by the custodian for the costs of the prisoner’s keep. That amount should be based on the specific facility’s actual costs; it is not a per diem set by statewide statute or rule. For any prisoner ordered to an active sentence, the court shall consider recommending to the Secretary of Public Safety that restitution be made out of the defendant’s work release earnings. G.S. 15A-1340.36; 148-33.2.

Escape. If a person fails to return to prison from his or her work release assignment, it’s an escape—unless the person returns to confinement within 24 hours, as provided in G.S. 148-45.

Clearly work release requires some additional legwork and administrative wrangling. But given the benefits described above, it seems like it’s often worth the effort.

Limits on the Use of Statements of Charges in Superior Court

July 16th, 2014
By Jeff Welty

This week, the court of appeals decided a case that is a good reminder about the limits of the State’s authority to address problems in charging documents by filing a misdemeanor statement of charges.

In State v. Wall, Richmond County officers sought to arrest William Wall, Sr. based on a Florida warrant and to serve an emergency child custody order for William Wall, Jr. They went to the Walls’ neighborhood, spotted the elder Wall, and arrested him. The officers then proceeded to the Walls’ house, where several family members resided. The family members allegedly refused to identify William Wall, Jr. among the children present and made several false statements about the identity and whereabouts of William Wall, Jr. The officers were eventually able to identify the child based on a photograph sent by Florida authorities. They took custody of the child and arrested the adults in the home, charging them with resisting, obstructing, and delaying officers in violation of G.S. 14-223.

The defendant in Wall was one of the adults present. She was charged in a magistrate’s order that alleged that she “refuse[d] to let [Richmond County] deputies serve a child custody order.” She was convicted in district court and appealed for trial de novo. The State filed a misdemeanor statement of charges in superior court, changing the allegation to “lying to [Richmond County] deputies about the whereabouts of” William Wall, Jr. The opinion doesn’t indicate why the State made the change, but it seems that the officers never actually produced the custody order when talking to the family members, so the State may have been concerned that alleging interference with service of the order was an overreach. In any event, the defendant was convicted again and appealed.

The court of appeals reversed the conviction, concluding that the State lacked the authority to file the statement of charges. Under G.S. 15A-922, a prosecutor may file a statement of charges “at any time prior to arraignment in district court,” and such a statement of charges may add new offenses or make any change whatsoever to the existing charges. (I sometimes tell prosecutors that they have superpowers to fix charging problems before trial in district court.) Past that point, a prosecutor may file a statement of charges only if “the defendant . . . objects to the sufficiency [of a warrant, summons, or magistrate’s order] and the judge rules that the pleading is insufficient,” and such a statement of charges can’t “change the nature of the offense.” (Arraignment in district court is like Kryptonite, robbing prosecutors of their superpowers.) In this case, the State filed the statement of charges well after arraignment in district court, and not based on any objection by the defendant to the sufficiency of the magistrate’s order. Because the statement of charges was not filed properly, the defendant was tried on a faulty charging document and the superior court lacked jurisdiction, so the defendant’s conviction was reversed.

A better maneuver by the prosecutor would have been moving to amend the magistrate’s order. That may be done “at any time prior to or after final judgment when the amendment does not change the nature of the offense charged.” G.S. 15A-922(f). There might be some debate about whether the amendment in this case changed the nature of the offense. But if it did, a statement of charges wouldn’t have been any help – remember that one filed after arraignment in district court “may not change the nature of the offense.”

The power to file a statement of charges without limitation is indeed a superpower for prosecutors. But as Wall reminds us, even superpowers have limits.

Ramp Meters:  They Just May Alter Your Life 

July 15th, 2014
By Shea Denning

As a regular I-40 commuter, I feel like traffic jams are the story of my life.  And it is obvious I’m not alone.  But there may be hope.  Legislation enacted last week provides the state Department of Transportation with an additional tool to combat traffic congestion: the ramp meter, a traffic control device never before seen in these parts.  See S.L. 2014-58 (H 1025).

Ramp control meters are basically stop lights (minus the yellow caution light) placed on highway entrance ramps. Drivers must stop when the light is red.  When the device is green, a single vehicle may proceed through the meter, which, according to this feasibility study by the Atkins consulting firm for NCDOT, is designed to “meter the flow of entering vehicles proportionate to the available gaps in traffic.” Other states, including the State of Washington, use such devices.  Indeed, Washington’s DOT claims that ramp meters save travel time and reduce accidents by 30 percent.  We all know what happens without them, but here’s how Washington’s DOT puts it:

Without ramp meters, multiple cars try to merge simultaneously. Drivers on the freeway slow down to allow the cars enter and these slower speeds quickly cause backups. If cars enter the highway in controlled intervals, they are less likely to cause a disruption to the traffic on the freeway. A short wait on the ramp allows drivers to increase their average freeway speed and shorten overall freeway travel times.

The News & Observer’s Road Warrior, Bruce Siceloff, wrote about the devices last year, explaining that “they’re controversial even where studies credit them with reducing delays.”

Indeed, the Atkins report noted that public opposition to ramp metering typically stems from the mistaken view that the meters increase rather than reduce delays.  In addition, the report noted that there is a perception that rear-end collisions may increase because cars are stopped on the ramp.  Finally, Atkins wrote that “[l]ocal agencies tend to perceive the ramp meters will back up traffic and degrade traffic flow on their crossing arterial roadway.”  Thus, the report recommended that education be a central component of any ramp meter deployment.

Failure to stop at a ramp meter displaying a red light is designated in new G.S. 20-158(c)(6), effective for offenses committed on or after December 1, 2014, as an infraction.  Unlike running through a stop sign or red light, failing to stop for a ramp meter does not result in driver’s license or insurance points.

The Atkins report recommended several intersections along I-40 and other highways in the Triangle as suitable for ramp metering.  The estimates cost of installing the meters on 14 ramps is $3.2 million.

Now that the General Assembly has sanctioned these devices, Triangle commuters may soon be affected.  If the results are positive, they may change many lives for the better.

U.S. Senators Support “Raise the Age”

July 14th, 2014
By LaToya Powell

Just weeks after the NC House passed bipartisan legislation to “raise the age” of juvenile court jurisdiction to 17 for misdemeanor offenses (HB 725), US Senators Rand Paul (R-KY) and Cory Booker (D-NJ) have given NC a new incentive to enact this bill. According to this press release, Senators Paul and Booker have introduced the REDEEM (Record Expungement Designed to Enhance Employment) Act, which proposes major criminal justice reform by removing non-violent juvenile offenders from the adult criminal court system and improving employment opportunities for non-violent adult offenders.

A key provision of the bill encourages states to increase the age of criminal responsibility to 18 by offering those states a preference for federal community police grants. The REDEEM Act would also:

  • Create a process for adult, non-violent offenders to seal their criminal records;
  • Limit information available to employers via FBI criminal background checks;
  • Automatically expunge or seal juvenile records for non-violent offenses;
  • Restrict the use of solitary confinement for juveniles; and
  • Restore welfare benefits to low-level drug offenders who have served their time.

The bill’s sponsors have called it common sense legislation designed to reform a costly and “broken criminal justice system,” citing research, long advanced by “raise the age” proponents, which shows that rehabilitating youth in the juvenile justice system costs less, reduces recidivism, and removes barriers to employment caused by having an adult criminal record. In short, they claim it will save taxpayers money.

NC has twice studied the fiscal impact of raising its maximum juvenile court age, and reached the same conclusion. Currently, juveniles in NC are automatically prosecuted as adults starting at age 16. G.S. 7B-1604(a). In 2009, the Governor’s Crime Commission Juvenile Age Study reported that raising the age of criminal responsibility from 16 to 18 could result in a net benefit of approximately $7.1 million to the state. In 2011, that number was increased to $52.3 million in a report by the NC Youth Accountability Planning Task Force, which recommended prosecuting 16 and 17-year-old misdemeanants and low-level felons in juvenile court. The cost savings, according to both reports, would largely 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. As a result, the Task Force concluded that because more youth will become law-abiding, productive citizens, rather than a hindrance to the state, the long term benefits of treating more kids in the juvenile justice system far outweigh the costs.

Yet, the Task Force also estimated that moving 16 and 17-year-olds to juvenile court would initially cost NC taxpayers approximately $70 million per year, an investment opponents say the state can’t afford right now. This article also cites opposition from some law enforcement groups as another reason why NC has yet to “raise the age” of juvenile court jurisdiction.

NC remains one of only two states in the nation that prosecute 16-year-olds in adult criminal court. NY is the other state with this distinction, but it has a “reverse waiver” law that permits a defendant to petition the court to be tried as a juvenile. Eight states send juveniles to criminal court at age 17, but the overwhelming majority of states (40 plus the District of Columbia) set their respective ages of criminal responsibility at age 18.

Illinois, one of the most recent states to “raise the age” to 18, has reported results that tend to support the reasoning behind the REDEEM Act. Three years ago, Illinois became the first state to increase its juvenile court jurisdiction to include 17-year-olds who commit misdemeanors only. However, in July 2013, the state passed a law to include all 17-year-olds in the juvenile court system upon finding the initial change was less costly than anticipated, did not overwhelm the juvenile justice system, and actually resulted in a decline in juvenile crime, as detailed in this report by the Illinois Juvenile Justice Commission.

Although early reports show the REDEEM Act is unlikely to succeed this session, it is another example of the momentum gained by the “raise the age” campaign as more policymakers embrace new evidence that shows removing youth from the adult criminal system makes sense from an economic and public safety perspective. Of course, the campaign has also been propelled by a wave of U.S. Supreme Court decisions recognizing that children are categorically different from adults, which must be accounted for by the courts. See Miller v. Alabama, J.D.B. v. North Carolina, and Graham v. Florida.

As for the fate of HB 725, NC’s “raise the age” bill, it is also unlikely to obtain passage during the short session. Since it arrived at the Senate, the bill has been fatally marked – “Held in Senate Clerk’s Office” – which is likely its final resting place until the short session adjourns. However, if the REDEEM Act becomes law, it could help to “redeem” HB 725 next session.

News Roundup

July 11th, 2014
By Jeff Welty

Locally, the big criminal justice news was former UNC basketball player P.J. Hairston getting a criminal summons. He allegedly punched a high school basketball player during a pickup game at the Durham YMCA. WRAL has the story here. I don’t know whether Tar Heels are more likely to cringe when hearing Hairston’s name or that of Rashad McCants, who says that Roy Williams knew about the academic fraud at the university and claims that UNC owes him “over $10 million due to the exploitation of me as a player and the lack of education that I received.”

In other news:

New edition of Black’s Law Dictionary. Check out this interview with Bryan Garner, editor of Black’s Law Dictionary and legal writing guru. Garner explains why he decided to include “SODDI defense” and other new terms, and gives recommendations for good non-legal dictionaries as well.The tenth edition of Black’s just came out. On Amazon, you can get it for just $81.19, a discount of a full seventy-six cents off the MSRP!

New use for dog sniffs. ARS Technica reports here that police in Rhode Island have a dog that is “trained to ferret out gadgets, such as thumb drives and hard drives, that might contain kiddie porn.” To be clear, the dog can’t discern the contents of such devices, but rather is “trained to identify scents such as metals and other components” typically found in electronic gadgets.

Provocative big-picture articles. Two think pieces caught my eye this week. On CNN, New York Law School professor Robert Blecker has this article recommending five ways to improve the death penalty, including execution by firing squad and making prisons more punitive. Meanwhile, at Slate, Josh Voorhees has this piece arguing that declining crime rates are largely a result of statistical sleight of hand, because virtually all of the violence and sexual assault that takes place in prison goes uncounted.

The eternal question: is Manhattan weirder than Florida, or the reverse? Arguing for Manhattan is this article, reporting (1) that Madonna showed up for jury duty “30 minutes late for her 10 a.m. scheduled arrival time, which is an hour later than the 9 a.m. time regular prospective jurors are asked to arrive”; (2) was “with an entourage fit for a diva — two male bodyguards and two female assistants”; and (3) was quickly dismissed “because her presence was a distraction” and said on the way out that she was “proud to do [her] job.” Arguing for Florida is this story, noting that a public defender has resigned after the judge who threatened to “beat [his] ass” and allegedly assaulted him just outside the courtroom was allowed to return to the bench.

Low income residents entitled to free marijuana. At least for this week, perhaps both Manhattan and Florida will need to step aside. As a proud alumnus of UC – Berkeley, I took a stroll down memory lane when I ran across this story, which notes that “[m]edical marijuana dispensaries in Berkeley must give their pot free of charge to low-income patients under an ordinance approved by the City Council. At least 2% of the marijuana each dispensary doles out needs to be given free to [Berkeley residents] who have ‘very low’ incomes [of under $32,000 per year for an individual]. . . . The ordinance also stipulates that [the] free pot must be the same quality, on average, as the pot that other members buy.” I wonder if some city employee is responsible for sampling the free pot and the paid pot to make sure that they are equally effective.

Counting Joined Offenses for Prior Record Points

July 10th, 2014
By Jamie Markham

Before Structured Sentencing we had Fair Sentencing. Under Fair Sentencing, there was no such thing as “prior record level,” but a prior conviction could qualify as an aggravating factor, exposing a person to a longer sentence. G.S. 15A-1340.4(a)(1)(o) (1988). However, the law included an exception for any crime joinable with the crime for which the defendant was currently being sentenced. Id. If prior conviction A could have been joined for trial with current charge B, then A could not count as an aggravating factor for the sentencing of B.

There is no such prohibition under Structured Sentencing. Rather, a prior conviction is now defined as any conviction existing on the date judgment is entered for current offense. G.S. 15A-1340.11(7). That rule grabs essentially any prior conviction—even those for offenses that actually occurred after the offense date of the crime now being sentenced, State v. Threadgill, __ N.C. App. __, 741 S.E.2d 677 (2013), and even those arising between the sentencing and resentencing of the same offense, State v. Pritchard, 186 N.C. App. 128 (2007). There is no exception in the prior record level statute for joined or joinable offenses.

Nevertheless, limits have emerged on the use of a joined conviction when calculating a person’s prior record level. In State v. West, 180 N.C. App. 664 (2006), a defendant was convicted by a jury of four crimes on the same day. The trial court sentenced the defendant for three of the crimes before lunch. When sentencing the fourth crime after lunch, the court counted prior record points for one of the offenses sentenced that morning. The court of appeals reversed, holding that while “[n]othing within [Structured Sentencing] specifically addresses the effect of joined charges when calculating previous convictions . . . using joined convictions would be unjust and in contravention of the intent of the General Assembly.” Id. at 669.

Under West, it is impermissible to introduce a short delay between the sentencing of joined offenses to allow one to count for points in the sentencing of the other. But what if the delay arises naturally? Suppose two charges are joined for trial. One results in a conviction, but the jury fails to reach a verdict on the other. If the mistried offense is retried and results in a conviction, does the conviction from the first trial count for prior record points toward the sentencing of the retried offense—even though they were initially joined for trial?

A mechanical application of G.S. 15A-1340.11(7) would suggest that it does. The first conviction clearly exists on the date a criminal judgment is entered for the second, and so it would appear to meet Structured Sentencing’s definition of a prior conviction. On the other hand, West could be read to suggest that it would be “unjust and in contravention of the intent of the General Assembly” to count the once-joined offense for points. Close call, right?

So close, in fact, that when two cases presenting that exact fact pattern were decided by the court of appeals last week, two panels of the court answered the question differently. In State v. Perkins, __ N.C. App. __ (2014), the defendant was initially tried on 20 sex crimes at the same time but convicted of only one of them, indecent liberties with a child. The jury failed to reach a verdict on the remaining counts. A year later when the defendant was retried and convicted on four of the charges, the indecent liberties conviction counted for points toward his prior record level. The court of appeals found no error, rejecting the defendant’s argument that counting points for the once-joined offense was prohibited. The panel distinguished West, saying the prior conviction in this case, unlike in West, “was established well in advance of [the defendant’s] attaining four additional convictions.”

State v. Watlington, __ N.C. App. __ (2014), went a different direction with West (pun intended). The defendant in Watlington was tried for several charges on the same day. The jury convicted him of some of the charges, found him not guilty of others, and was unable to reach a verdict on three of them. About two months later he was retried on the three mistried charges and convicted. The trial court counted points from the convictions obtained in the first trial when sentencing the retried offenses. The court of appeals reversed, concluding that, in light of West, it would be “unjust to punish a defendant more harshly simply because, in his first trial, the jury could not reach a unanimous verdict on some charges.”

It’s hard to reconcile the two cases. I suppose there was a longer passage of time between trial and retrial in Perkins, which made the chronologically prior convictions for the once-joined charges seem more well-established by the time the retrial rolled around. But the Watlington decision to bar use of the prior convictions did not appear to turn on the passage of time. Rather, the important thing was the perceived injustice of punishing the defendant more harshly after the second trial solely because the first jury couldn’t resolve the whole thing together. Obviously this sort of split wouldn’t happen if the cases hadn’t been decided on the same day (the panel hearing the second case would have been bound by the first panel’s resolution of the issue—assuming the issues are indeed the same). For the time being, at least, there appears to be good authority on both sides of the argument.

Court of Appeals Rules on Prior Convictions from New Jersey

July 9th, 2014
By Jeff Welty

Last month, the court of appeals decided State v. Hogan, __ N.C. App. __, 758 S.E.2d 465 (2014), a case about the use of a defendant’s prior convictions from New Jersey in determining the defendant’s prior record level. It’s an interesting case and one that has implications for the use of such convictions in the habitual felon context, an issue I previously discussed here. (The comments to that prior post are unusually substantive and anyone who reads the post should also read the comments.)

Superior court proceedings. The defendant in Hogan pled guilty to assault by strangulation after choking his girlfriend. In the course of calculating the defendant’s prior record level, the superior court judge counted as a felony a prior conviction of “third degree theft” that the defendant incurred in New Jersey. According to the defendant’s brief, that decision moved the defendant from prior record level IV to V.

Defendant’s argument: New Jersey doesn’t have “felonies.” The defendant appealed, arguing in part that the judge erred in counting the New Jersey conviction as a felony. The court of appeals summarized his argument as follows: “[B]ecause New Jersey does not use the term ‘felony’ to classify its offenses, the trial court could not properly determine that third degree theft is a felony for sentencing purposes.” This argument links into G.S. 15A-1340.14(e), which states that for prior record level purposes, an out-of-state conviction normally “is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony” (emphasis supplied). The defendant argued, and the court of appeals acknowledged, that New Jersey “does not use the term ‘felony.’” Instead, it has four degrees of “crimes,” plus a set of less serious offenses called “disorderly persons offenses.”

Court’s ruling: “crimes” are felonies. The court of appeals found, however, that a third degree crime was punishable by three to five years in prison, and that New Jersey’s own courts had recognized that such a crime is comparable to a common law felony. In other words, “New Jersey courts have clearly recognized that their third-degree crimes are felonies by a different name.” Thus, the court rejected the defendant’s argument and affirmed his sentence.

Relationship to habitual felon. The court noted that in previous cases, it had been skeptical of the use of New Jersey convictions as previous convictions supporting a habitual felon charge. It declined to apply the reasoning of those cases in the Structured Sentencing context, stating that “[t]here is no suggestion in the sentencing statutes that the Legislature intended to single out New Jersey convictions for such unfavorable treatment.”

Importantly, the court also stated that even if it were to apply the habitual felon cases in the prior record level context, “this case is distinguishable in that the State presented a ‘certification’ that third degree theft is considered a felony in New Jersey,” which is precisely what previous cases like State v. Lindsey, 118 N.C. App. 549 (1995), suggested might be needed to allow New Jersey convictions to be used to support a habitual felon allegation. The State apparently introduced a criminal history printout from a New Jersey computer system that contained a statement certifying the record as accurate and described the theft conviction as a “felony.”

A few important points. There are a couple of takeaways here:

  • First, the defendant has asked the state supreme court to review the case. The supreme court hasn’t yet ruled on whether it will do so, but has issued a temporary stay. If it does review the case, its ruling might impact the habitual felon cases as well as the prior record level cases, depending on the court’s result and reasoning.
  • Second, the discussion of the certification from New Jersey is a road map for prosecutors trying to use a New Jersey conviction to support a habitual felon charge. The court of appeals’ previous opinions in the habitual felon context haven’t been clear about what sort of certification was required before a New Jersey conviction could be used, so Hogan is the best place to look. A possible defense response would be that the discussion in Hogan about the certification is dicta.
  • Finally, first and second degree crimes, which are more serious than the offense at issue in Hogan, also appear to be felonies under the court’s analysis. But it is not as clear that fourth degree crimes, which are punishable by up to 18 months imprisonment, count as felonies. The trial judge in Hogan apparently didn’t think so, as he declined to treat the defendant’s other New Jersey prior – a fourth degree crime – as a felony. I tend to think otherwise, for the reasons given in my prior blog post, but I don’t think that Hogan is conclusive one way or the other.

As always, comments are welcome if folks think the analysis above is incorrect or incomplete. (Or exceptionally incisive, of course, though I don’t seem to get too many comments in that vein!)