When Are Children Old Enough to Be Left Alone?

July 28th, 2014
By Shea Denning

The prosecution of a South Carolina mother who left her 9-year-old child unattended in a park several days in a row while the mother worked her shift at a nearby McDonald’s has been widely covered and roundly criticized.  The mother reportedly was charged as a result of the incident with unlawful neglect of a child, a felony under South Carolina law.

I thought about that mother last night as I was reading Ramona the Pest, a Beverly Clearly classic, to my daughter at bedtime.  In last night’s chapter, Ramona Quimby’s mother leaves Ramona at home alone one school morning and instructs her to begin walking to school at 8:15 a.m.  Ramona is in kindergarten.  Ramona’s mother is portrayed throughout the book as a reasonable and caring parent, and her decision to leave Ramona at home while she takes her older daughter to the doctor is written about as though it is a perfectly reasonable choice.  I flipped to the front of the book to see the copyright date.  1968.  That explains it, I thought.

In 2014, I’m pretty sure that most people would consider it unreasonable to leave a kindergarten age child at home unattended, even without instructing the child to later walk herself to school.  I’m less sure about the public consensus on the decision the South Carolina mother made.  My guess is that nearly everyone would view it as not ideal; some might call it unreasonable; and an even smaller number might consider it criminal.

In North Carolina, it is a Class 1 misdemeanor for a person who is at least 16 years old to knowingly or willfully cause a juvenile to be in a place or condition where the juvenile could be adjudicated neglected.  See G.S. 14-316.1.  This crime, which also applies to circumstances in which the minor could be adjudicated delinquent, undisciplined or abused, is commonly referred to as “contributing to the delinquency of a minor.”

The North Carolina Juvenile Code defines a “neglected juvenile” in part as one who does not receive proper care, supervision, or discipline from the juvenile’s parent, guardian, custodian, or caretaker. G.S. 7B-101(15).  While North Carolina’s appellate courts have considered young children who are left unattended to be neglected within the meaning of this provision, the cases in which they have done so have also involved other types of neglectful behavior.  See, e.g., In re Gleisner, 141 N.C. App. 475, 478-79 (2000) (finding substantial evidence of neglect based in part on mother’s act of leaving her eight-year-old daughter alone for three and a half hours as a form of discipline); In re Bell, 107 N.C. App. 566, 567-69 (1992) (noting that county Department of Social Services first became involved when it received a report stating that four children under the age of six had been left alone overnight, and affirming trial court’s adjudication of neglect based on the mother’s failure to ensure that her children received proper treatment from the county health department, to use her food stamps so as to keep an adequate supply of food in the house, and to take full advantage of free day care); see also In re D.M., 185 N.C. App. 159, 647 S.E.2d 689 (2007) (noting that trial court had adjudicated children neglected following petition alleging, among other neglectful acts, that children ages seven, six and four had been left alone for three days while their mother traveled out of town).

Indeed, in In re Stumbo, 357 N.C. 279, 284 (2003), the North Carolina Supreme Court noted that “not every act of negligence on the part of parents or other care givers constitutes “neglect” under the law and results in a “neglected juvenile” as “[s]uch a holding would subject every misstep by a care giver to the full impact of [the Juvenile Code],” including mandatory investigations by the Department of Social Services.

And, contrary to pervasive lore, no statute establishes a presumptive age at which a child may be left unattended.  Cf. G.S. 14-318 (making it a Class 1 misdemeanor to go away from a building, leaving any child under 8 locked or otherwise confined “so as to expose the child to danger by fire” without leaving some person of the age of discretion in charge of the child).

Readers, what’s your view?  Was prosecution of the South Carolina mom warranted?  And at what age is it appropriate to leave a child home alone?  From what I hear, once children are old enough to be left at home without risking allegations of neglect, you can’t leave them unattended for fear of other consequences.

News Roundup

July 25th, 2014
By Jeff Welty

For the second week in a row, a death penalty story from the West is the headliner. Arizona executed convicted murderer Joseph Wood on Wednesday afternoon by lethal injection. His death took almost two hours. Some believe that Wood was gasping and snorting throughout and view it as a botched execution (see this Slate article), others argue that Wood was sedated in the first few minutes and did nothing but snore thereafter (see this Arizona DOC news release). Last-minute litigation in the case focused on Arizona’s refusal to reveal the precise drugs to be used to execute Wood. Perhaps presciently, Judge Kozinski of the Ninth Circuit wrote in the course of that litigation that “[t]he enterprise [of lethal injection] is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful . . . . But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. . . . If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. . . . The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true.”

In other news:

Federal drug guidelines reduced retroactively. Anyone who practices in federal court is likely aware of this already, but the United States Sentencing Commission recently concluded that changes to the federal sentencing guidelines that apply in drug cases should apply retroactively to defendants who have already been sentenced. Congress could disapprove the amendment but if it doesn’t, sentences could be changed starting November 1, 2015. It’s a big deal, and Doug Berman at Sentencing Law & Policy wonders here whether the federal public defenders will be able to handle the onslaught of cases. The folks at Crime & Consequences disapprove here.

No new trial for Jeffrey MacDonald. The former Army doctor convicted of killing his wife and two daughters was denied a new trial by a federal judge yesterday. WRAL has the story here.

Why does all the goofy stuff happen in Florida? (OK, and Italy.) As to Florida, the headline of this story pretty much says it all: Man in Road Rage Incident Run Over by Own Truck. Actually, it doesn’t quite say it all. The man, who was hit by his truck when he got out of it to confront another motorist but neglected to put the vehicle in park, smelled strongly of alcohol and had an open beer in the cab. He “told [an investigating] officer that he does not drink and drive,” but “[w]hen asked about the beer cans in his truck, he said he was only drinking while he drove home.” Meanwhile, across the pond in Italy, a women’s prison apparently has been providing inmates with “happy hours which ran until ‘late at night’ with ‘external guests.’ Prisoners were provided with a catering service and offered alcohol.” No word on the quality of the vintages available. The story is here.

Fair Sentencing in a Nutshell

July 24th, 2014
By Jamie Markham

North Carolina’s first attempt at a presumptive sentencing law was the Fair Sentencing Act (FSA). The law was in effect for offenses committed from July 1, 1981 to September 30, 1994, and it continues to apply to offenses committed during that date range. A defendant being sentenced now for a crime of that vintage is not entitled to a sentence under today’s law, even if doing so would result in a far lower sentence. State v. Whitehead, 365 N.C. 444 (2012) (holding that the legislature did not intend for Structured Sentencing to apply retroactively, and rejecting the defendant’s argument that retroactive application was required under the Eighth Amendment). Almost every week I am asked about Fair Sentencing—either for an older crime being prosecuted now for the first time, or in relation to the resentencing of an inmate serving a Fair Sentencing sentence. This post addresses some of the most frequently asked questions about the FSA.

Can you send me the FSA sentencing grid? The FSA didn’t use a grid like we have today. It did, however, organize felonies into different offense classifications based on their seriousness (Class A through J), and set presumptive and maximum sentences for each class of offense. Many offenses were the same offense class under Fair Sentencing as they are today, but if you ever need to know for sure, please don’t hesitate to ask. Here is a table of presumptive and maximum terms for each class of offense.

FSA presumptive-maximum table

The presumptive sentence applies by default. The judge could deviate from the presumptive if he or she made written findings of aggravating or mitigating factors. It was mandatory under the FSA for the judge to consider the list of factors set out in G.S. 15A-1340.4(a)(1) and (2). With findings of a single aggravating factor the judge could impose a sentence up to the statutory maximum set out above. No findings were required in support of a non-presumptive sentence if (1) it was imposed pursuant to a plea agreement, or (2) the aggregate prison term of certain consolidated judgments fell between the presumptive and maximum terms for the most serious felony and did not exceed the sum of the presumptive terms of all the consolidated crimes. G.S. 15A-1340.4(a) (1983). (The first exception seems a little more user-friendly than the second!)

As written, the FSA required aggravating factors to be proved to the judge by a preponderance of the evidence. But for any case sentenced or resentenced today, the Sixth Amendment jury trial right described by the Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004), would surely require any aggravating factor other than a prior conviction to be proved to the jury beyond a reasonable doubt, unless the defendant admitted to it.

How does a person’s prior record count under the FSA? There was no formulaic calculation of a “prior record level” under the FSA. Rather, it was a statutory aggravating factor to have a prior conviction for an offense punishable by more than 60 days’ confinement. Under the FSA’s definition, judgment had to be entered before a prior conviction counted, and so a PJC did not qualify. State v. Southern, 314 N.C. 110 (1985).

How did probation work under the FSA? In general, a judge could suspend the sentence and place a defendant on probation for any crime not punishable by a minimum term of life imprisonment. G.S. 15A-1341(a) (1983). Some specific crimes also required an active term of imprisonment, like armed robbery. The longest permissible probation period was 5 years. A split sentence was allowed for any crime with a maximum penalty not exceeding 10 years, with the active portion of the split not to exceed six months or one-fourth the maximum permissible penalty for the crime, whichever was less. G.S. 15A-1351 (1983).

Does the prison system really cut FSA sentences in half? Yes. By statute, FSA non-life sentences received Good Time credit at the rate of one day deducted for every day in custody without a major infraction, which essentially cuts a sentence in half. G.S. 15A-1340.7(b) (1983). Further reductions were possible through Gain Time (awarded for working or participation in other prison programs) and Meritorious Time (for heroism or exemplary acts beyond normal expectations).

Wiretapping Data — And a Question

July 23rd, 2014
By Jeff Welty

In connection with an ongoing research project, I recently reviewed the 2013 Wiretap Report, prepared by the Administrative Office of the United States Courts. It contains some information that may be of interest to readers, including:

  • 3,576 wiretaps were authorized by federal or state courts in 2013, about twice the number authorized a decade earlier.
  • It appears that a single wiretap application was declined in 2013, by a state judge.
  • About 60% were issued by state courts, mainly in California, New York, Nevada, New Jersey, Georgia, and Florida.
  • 22 were issued by North Carolina federal judges, and 22 more by North Carolina state judge panels, under the procedure set forth in G.S. 15A-291.
  • 97 percent of all wiretaps involved “portable devices,” i.e., cellular phones, rather than fixed locations.
  • 87 percent were for drug offenses.
  • The use of encryption to defeat wiretapping is on the rise, though still uncommon. 41 wiretaps involved encryption, which was unbreakable by law enforcement in 9 instances.

I’ll close with a question for readers. The state wiretapping statutes provide that applications and orders shall be filed under seal. G.S. 15A-293(d)(2) (“must be sealed”). The statutes don’t provide much guidance about unsealing, but the contents of an intercepted communication may be used in court only if the defendant has been given a copy of the application and order authorizing the interception. G.S. 15A-294(f). So, how does that play out in practice? Does the defendant receive copies of the sealed documents? Are the documents unsealed upon the conclusion of the investigation? Neither, with the result that the intercepted communications aren’t being used in court? Some combination of those? Something else?

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.

Facts. 

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.