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Capacity, Commitment, and COVID-19

The capacity-commitment process in criminal cases is complicated. It involves many moving parts in two different systems: criminal justice and mental health. How is the process bearing up in the COVID-19 era? Based on my conversations with the experts—lawyers, judges, and mental health professionals involved in these cases—the answer is surprisingly well. This post considers the various steps in the process and focuses on a concern common to many court proceedings these days: when does the defendant need to be present, in person or remotely?

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Does a “Prayer for Judgment Continued” Differ Very Much from a “Prayer for Judgment Granted”?

Once upon a time in the North Carolina courts, a prayer for judgment continued (PJC) could have a positive impact on a person’s future. Essentially, the prosecution would pray—that is, move—for entry of judgment, and the judge would continue the prayer and withhold judgment rather than granting the prayer and entering judgment. See State v. Griffin, 246 N.C. 680 (1957) (discussing procedure). Older cases recognized that a judge’s exercise of his or her authority to defer judgment in the interest of justice did not constitute a conviction. A PJC was thus treated like a prosecutor’s exercise of discretion in deferring prosecution. The deferral not only avoided imposition of sentence in the criminal case; it also meant that the matter did not count as a conviction in later, collateral proceedings. See Barbour v. Scheidt, 246 N.C. 169 (1957) (discussing treatment of PJCs). The Court of Appeals’ February 18, 2020 decision in Mace v. North Carolina Dept. of Insurance provides a reminder that times have changed and a PJC usually provides no protection from the collateral consequences of a conviction.

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Welcome, Tim Heinle

I want to kick off 2020 by welcoming Tim Heinle to the School of Government. It is his first week on the job as our new Civil Defender Educator. Here he is in his new office at the School. You can reach him at 919.962.9594 or heinle@sog.unc.edu. Tim will assist defenders in the diverse and challenging practice areas that make up civil indigent defense in North Carolina, including abuse, neglect, and dependency cases, guardianship, and child support contempt proceedings.

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2019 Legislation Affecting Criminal Law and Procedure

Now that the North Carolina General Assembly has adjourned for the remainder of the year and most criminal law legislation has taken effect (which is often December 1 each year), it’s time to take stock of what passed this session. You can read summaries of all of the criminal law and related legislation here. Each summary provides a brief description of the act in question along with a link to the text of the act and, where available, links to blogs my colleagues and I wrote. As usual, the legislation spans a range of topics.

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“No” Will Mean “No” in North Carolina

Two years ago I wrote a blog post about North Carolina’s unusual stance on rape and consent. In its 1979 decision in State v. Way, 297 N.C. 293 (1979), the North Carolina Supreme Court appeared to take the position that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. In my lengthy blog, I suggested ways to distinguish or limit the antiquated approach in Way. This post need not be nearly as long. Last week, the General Assembly enacted Senate Bill 199, which revised the elements of rape and other sexual offenses to recognize the right to revoke consent, whether or not sexual intercourse or another sexual act has begun. If signed by the Governor (the Governor has signed the bill), the law will apply to offenses committed on or after December 1, 2019.

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Occupational Licensing Reforms and Criminal Convictions

In legislation that may have escaped the notice of some criminal law practitioners, the North Carolina General Assembly enacted significant reforms this year to the state’s occupational licensing laws. The reforms, which apply to applications for licensure submitted on or after October 1, 2019, significantly lessen legal barriers to obtaining an occupational license for people with a criminal conviction. The legislation, S.L. 2019-91 (H 770), received bipartisan support, passing both chambers unanimously.

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Fundamental Principles of Statutory Self-Defense

The common law right to use defensive force in North Carolina rests on three fundamental principles: necessity, proportionality, and fault. Ordinarily, when a person uses defensive force, the force must be reasonably necessary to prevent harm; the force must be proportional to the threatened harm; and the person using defensive force must not be at fault in the conflict. See John Rubin, The Law of Self-Defense § 2.1(b), at 14–15 (UNC School of Government, 1996). North Carolina’s new statutes on defensive force continue to rely on these principles. As under the common law, the statutes do not always refer to these principles in describing the circumstances in which a person may use defensive force. But, as this post is intended to show, the basic principles of necessity, proportionality, and fault remain central to the statutory rights.

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