I have started to get questions about G.S. 15A-1380.5, a repealed statute that used to provide for judicial review of sentences to life without parole after 25 years of imprisonment. It’s too early for a court to be applying the law just yet—the first reviews shouldn’t happen until 2019—but we’re getting close, and people are talking about it. Today’s post describes the law.
Jamie Markham
Egregious Aggravation Is Unconstitutional
In 2008 the General Assembly created the new crimes of rape and sexual offense with a child by an adult offender (G.S. 14-27.2A and -27.4A, respectively). S.L. 2008-117. They have special sentencing rules, described here, including the possibility of a higher maximum sentence if the judge finds “egregious aggravation” in the case. Discussing the law immediately after it passed in 2008, John Rubin wrote (here, on page 3) that placing the responsibility for determining egregious aggravation on the judge—not the jury—was “likely unconstitutional” under Blakely v. Washington. As my kids like to say, “Nailed it.” State v. Singletary, decided by the court of appeals last week (and mentioned briefly in last week’s News Roundup), ratified John’s view.
Sentencing Commission Recidivism Report Available
The North Carolina Sentencing and Policy Advisory Commission and the Division of Adult Correction recently released their Correctional Program Evaluation: Offenders Placed on Probation or Released from Prison in FY 2013—known better as the recidivism report. Every biennial report is interesting—who wouldn’t want to know how present sentencing choices affect future crime?—but this report is especially interesting because it is the first one to include a sizable number of defendants sentenced and supervised after Justice Reinvestment. We can begin to see if the law is working as intended.
Federal Judge Enjoins 300-Foot Rule for Sex Offenders
The North Carolina law making it a felony for some sex offenders to go within 300 feet of certain locations intended for children is unconstitutionally overbroad under the First Amendment. Last week, a federal judge permanently enjoined all North Carolina district attorneys from enforcing the law.
Satellite-Based Monitoring after Grady
In Grady v. North Carolina, 575 U.S. __, 135 S. Ct. 1368 (2015), the Supreme Court concluded that North Carolina’s satellite-based monitoring (SBM) program for sex offenders is a search. The Court left to the lower courts the question of whether the search is “unreasonable” under the Fourth Amendment. The lower courts have started to answer it.
Weighing Aggravating and Mitigating Factors
Much has been written—and much of it by the Supreme Court—on the proper way to find aggravating factors for sentencing. After Apprendi v. New Jersey, Blakely v. Washington, and countless cases at the state level, it is of course clear that a defendant has a Sixth Amendment right to have aggravating factors proved to a jury beyond a reasonable doubt. Once sentencing factors are properly found, however, responsibility shifts back to the judge to decide what to do about them. The rules for weighing factors are as loosey-goosey as the rules for finding them are rigid.
Alleging a “Commit No Criminal Offense” Probation Violation
Can a probationer be revoked for a violation of the “commit no criminal offense” probation condition if the violation report alleges only that the person has been charged with a crime?