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More on Units of Prosecution

It has long been held that the allowable unit of prosecution for an offense is within the discretion of the legislature. See, e.g., Bell v. United States, 349 U.S. 81 (1955).  When the legislature does not clearly express legislative intent, the court must determine the allowable unit of prosecution. State v. Smith, 323 N.C. 439 (1988).

North Carolina courts have resolved issues related to units of prosecution in some contexts—including kidnapping, possession of firearms, and theft crimes—while there are questions that remain unanswered in other contexts. Some answers are clearer and more direct than others. I previously wrote a bulletin reviewing case law on permissible units of prosecution for certain offenses against the person, possession offenses, and theft offenses. Since then, the courts have specified units of prosecution for a few more offenses. This post provides more insight into those offenses and reviews the rule of lenity in navigating the unresolved.

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State v. Watlington: Court Clarifies Unit of Prosecution for Hit and Run

Earlier last month, the Court of Appeals decided State v. Watlington, COA23-1106, ___ N.C. App. ___ (2025). Among other issues, in its decision the Court addressed an open question: what is the unit of prosecution for a hit and run? May the defendant be charged once for leaving the scene of a crash that causes injury, or instead may a separate charge be issued for each person injured? (Shea Denning wrote about that issue and the framework for analysis in 2014, noting then that the question had not been directly addressed by our appellate courts). We now have an answer: the unit of prosecution is leaving the scene of a crash, not the number of people injured. Read on for further details.

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News Roundup

On Wednesday, the U.S. Supreme Court upheld a federal regulation requiring, among other things, that those who make or sell “ghost guns” or “gun kits” must mark their products with serial numbers, keep records of their sales, and conduct background checks on buyers. The regulation, first enacted in 2022 by the Bureau of Alcohol, Tobacco, Firearms, and Explosives came in response to a sharp increase in the number of unmarked guns being found at crime scenes around the country, from about 1,600 in 2017 to 19,000 in 2021. Gun manufacturers opposed the Biden-era regulation, arguing that multiple gun parts is not a gun. Writing for the majority in Bondi v. VanDerStok, Justice Neil Gorsuch said the ATF was within its authority under the broad language of the 1968 Gun Control Act to enact the regulation, noting that many gun kits are easy to assemble in less than an hour. Justices Clarence Thomas and Samuel Alito dissented, and wrote separately. Read on for more criminal law news.  

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New Bulletin on Social Workers in Public Defender Offices and Issues Involving Mandatory Reporting

Increasingly, public defender offices are bringing social workers in-house. As part of a growing interest in holistic defense, these offices are relying on social workers to assist with the representation of their clients in a variety of ways. Social workers can locate housing, find appropriate treatment for substance use disorder or mental illness, and improve client communication by building trust and sensitivity to clients’ needs. This work may support the presentation of mitigation evidence at sentencing, and beyond that, break cycles of involvement with the criminal justice system.

North Carolina is in the midst of a major, legislatively-funded expansion of its public defender system. The School’s Criminal Justice Innovation Lab is supporting NC Indigent Defense Services by evaluating the implementation of social work positions in public defender offices to learn more about the ways the inter-professional collaboration functions, how social work positions are structured, and common benefits and challenges of using social work staff.

During this work, a question has arisen on several occasions: how should the inter-professional defense team navigate a situation, such as learning of child abuse, where mandatory reporting laws require notification to the local department of social services (DSS) or law enforcement? Should social workers comply with state statutes and follow their own ethical code by making a report? Or does the attorney’s obligation to keep client confidences and provide effective assistance of counsel “trump” the social worker’s duty to report?

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Returning Juveniles with Pending Delinquency Matters in Other States Under the Interstate Compact for Juveniles

The Interstate Compact for Juveniles (ICJ) is a binding compact that establishes the law that governs the interstate movement of juveniles who are involved in the juvenile justice system. One of the purposes of the ICJ is to “[r]eturn juveniles who have… been accused of an offense to the state requesting their return.” G.S. 7B-4001(b)(3). This is akin to the extradition process used in criminal matters. The proper procedure to return a juvenile who is accused of an act of delinquency in another state to that other state is found in the ICJ rules. This post walks through the procedure.

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GiveUNC: Help Support the SOG

Today is GiveUNC day, the university’s annual one-day fundraising event for alumni, faculty, staff, supporters, and fans of Carolina to contribute to UNC programs and causes that they find most meaningful and impactful. UNC Chapel Hill is truly a unique and remarkable place, and we could not do it without you. To quote from the … Read more

News Roundup

Hundreds of Venezuelan immigrants were summarily deported from the United States to a prison in El Salvador last weekend. Federal authorities relied on President Trump’s executive order invoking the Alien Enemies Act of 1798 in removing the immigrants without due process protections. The administration stated that the immigrants were members of a violent gang, Tren de Aragua, and that their alignment with the Venezuelan government and entry into the U.S. constituted an invasion by a hostile nation. Advocates for the deported Venezuelans deny their involvement with the gang and stress that the three previous times that the AEA was invoked, it was during clear times of war (the War of 1812, WWI, and WWII).

Judge James Boasberg, a federal judge in Washington, had ordered that the flights carrying the immigrants be turned around, but this did not occur, and the court is now engaged in an inquiry to determine whether the Trump administration should be held in contempt. After Trump called for the impeachment of the judge, Chief Justice John Roberts of the United States Supreme Court made a public statement that the appellate process, rather than impeachment, is the proper way to address adverse court rulings.

Read on for more criminal law news.

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When May a Trial Judge Reject a Plea Entered Pursuant to a Plea Agreement?

A trial judge has broad discretion regarding whether to accept a defendant’s guilty plea entered pursuant to a plea agreement in which the prosecutor has agreed to recommend a particular sentence. G.S. 15A-1023(b). In that circumstance, the judge must advise the parties whether he or she approves of the arrangement and will dispose of the case accordingly. If the judge rejects the arrangement, the judge must so inform the parties, refuse to accept the plea, and advise the State and the defendant that neither is bound by the rejected arrangement. The judge must tell the parties why he or she rejected the arrangement and give them an opportunity to modify it to meet the judge’s approval. The parties are not required to modify the arrangement, and, upon rejection of the arrangement, the defendant is entitled to have the case continued to the next session of court.

The judge’s rejection of the arrangement must be noted in the record, but such a rejection does not appear to preclude another judge from later accepting the arrangement. (The notation of the trial court’s discretionary decision arguably is not a discretionary order of the sort that would require changed circumstances to justify modification by another judge. See generally Michael Crowell, One Trial Judge Overruling Another, Administration of Justice Bulletin No. 2015/06 (UNC School of Government December 2015) (discussing the general rule that one trial judge may modify an order entered by another trial judge on a matter of discretion only if there has been a substantial change in circumstances)).

Those rules apply to a plea agreement in which the State has agreed to recommend a sentence. But what about arrangement where the State makes no such recommendation? Does the trial court retain discretion to reject those?

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