In a post here, I noted that under state law, counties, cities, towns, and metropolitan sewerage districts have authority to create crimes through local ordinances. This is a somewhat controversial issue. As I’ve noted, one of the arguments made in the national conversation about overcriminalization is that too many minor activities are made criminal and that it’s not efficient, effective, or fair to address this activity through the criminal justice system. It’s further asserted that many low-level crimes—such as panhandling and sleeping in public places—criminalize poverty and homelessness when those issues should be treated as social needs. In fact, at a panel discussion on overcriminalization at my recent NC Criminal Justice Summit, national and state experts from across the ideological spectrum weighed in on this issue, agreeing that creating a crime is a legislative function and should be done by state lawmakers, not local governments. Those panelists included Vikrant Reddy, Senior Fellow, Charles Koch Institute; Nathan Pysno, Director of Economic Crime and Procedural Justice, National Association of Criminal Defense Lawyers; Tarrah Callahan, Executive Director, Conservatives for Criminal Justice Reform; and Mary Pollard, Executive Director, North Carolina Prisoner Legal Services and President, North Carolina Advocates for Justice. The 240 state leaders and stakeholders who attended the Summit echoed that sentiment. During live, anonymous polling during the session, attendees weighed in on three consensus reform proposals formulated by the panelists to address overcriminalization in North Carolina. One of those proposals was: Repeal code provision allowing local governments and administrative boards and bodies to create crimes. 75.72% of attendees supported that proposal, with 26.59% supporting it with caveats; 19.65% opposed it; and 4.62% were undecided.
Crimes and Elements
Sharks, Minnows, and the Drug War
A new study by UNC professors raises questions about how we think about drug prosecutions. In Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, the authors reviewed more than 700,000 drug arrests and examined the race of the arrestee, the type of drugs involved, and the quantity of drugs involved. According to the authors, several important points emerge from the data: 1) The vast majority of all drug arrests are for marijuana; 2) The vast majority of all drug arrests are for very small amounts of drugs; 3) People of color are disproportionately arrested for drugs; 4) Such disparities are likely due to the types of drugs targeted by law enforcement and not due to any racial group’s greater involvement in the drug trade. Their study challenges the common rationale for prosecuting low level drug offenders: that in order to catch the big fish (the “sharks”), we must first catch the small fish (the “minnows”). “A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color.” Joseph Kennedy, Issac Unah, & Kasi Wahlers, Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, 52 U.C. Davis L. Rev. 729, 730 (2018) (citations hereafter are to the page numbers of the pdf file linked above). The authors argue that their data supports changing the way we approach drug prosecutions by eliminating felony liability in cases involving a gram or less of any drug. This post examines some of those findings.
Thirsty for Criminal Law Trivia this Thursday?
Earlier this week, I was asked to provide a criminal law case update to a group of attorneys. I started the session by giving them a quiz, which I thought could go one of two ways. Possibly, they’d know all the answers and tune me out for the next hour. On the other hand, maybe they’d have some uncertainty, and some interest, and would tune in to see what the court said. Fortunately, on Tuesday, the latter sentiment prevailed.
Given that our readers are voracious consumers of criminal law, I thought you might enjoy taking the quiz and seeing what you know – or don’t – about recent decisions from the appellate courts. Interest piqued? Try your hand at answering the questions below.
Charging the Felony After a Misdemeanor Appeal
This question has come up more than once around here lately, so I thought it would be worth summarizing in a blog post.
The defendant is in district court charged with a routine misdemeanor (e.g., larceny, assault, or DWI). The state has additional evidence that would support pursuing a related felony charge instead (e.g., new information about the value of the stolen property, the severity of the injuries inflicted in the assault, or the defendant’s multiple prior convictions for DWI). The prosecutor and the defense attorney talk it over, and they reach a deal: the state will not bring the higher felony charge, but only if the defendant pleads guilty to the misdemeanor – right now, as charged, take it or leave it.
The defendant agrees and enters a guilty plea. Then, a few days later, the defendant gives notice of appeal to superior court for trial de novo on the misdemeanor. May the state now prosecute the felony charge in superior court?
This post walks through the legal arguments for and against it, and then offers a few suggestions on how the state can avoid getting caught in this trap in the first place, including one option whose persistent absence from North Carolina criminal practice really puzzles me: a basic appeal waiver.
Is a Single Drug Sale from a Residence Enough to Support a Conviction for Maintaining a Dwelling?
Last week, the court of appeals decided State v. Miller, a case in which the defendant was convicted of maintaining a dwelling based almost entirely on the fact that he conducted a drug sale there. Would the court of appeals find the evidence sufficient under State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018), which substantially expanded the scope of maintaining a dwelling and related offenses?
Overcriminalization & Ordinance Violations as Crimes
Think you can consult the North Carolina General Statutes to know everything that’s been made criminal in North Carolina? Think again. Under state law, counties, cities, towns, and metropolitan sewerage districts have authority to create crimes through local ordinances. G.S. 14-4(a) (providing that, as a general rule, violation of such an ordinance is a Class 3 misdemeanor). Apparently, some local governments don’t realize that when they write ordinance violations they are creating crimes. What makes me say this? A 2018 law (S.L. 2018-69) required cities and towns that have enacted an ordinance punishable pursuant to G.S. 14‑4(a) to “create a list of applicable ordinances with a description of the conduct subject to criminal punishment in each ordinance” and submit it to certain Committees of the General Assembly by December 2018. At least one town reported that its ordinances don’t create any crimes, but that statement is contradicted by the town’s own Code of Ordinances which creates a host of crimes including curfew violations. (Want to check? The submissions are here).
Court Vacates Stalking Convictions on First Amendment Grounds
Yesterday the court of appeals vacated Brady Lorenzo Shackelford’s convictions for felony stalking on the basis that the prosecution of Shackelford for violating G.S. 14-277.3A impermissibly infringed upon his constitutional right to free speech. This post will review the court’s opinion in State v. Shackelford, ___ N.C. App. ___ (March 19, 2019), consider how it might affect future prosecutions, and suggest statutory amendments to stave off future constitutional challenges.
Robbery and the Claim of Right Defense
James gives his friend Angela some money to purchase drugs. Angela doesn’t get the drugs and doesn’t return the money. James then comes to Angela’s house to confront her and get his money back, barging into the house and threatening her with a gun. James ultimately leaves without any money but is soon charged with attempted armed robbery. He testifies at trial that he had no intent to commit robbery; he was simply trying to get his property back. Angela admits on the stand that she had the money and never returned it or bought the drugs. James moves to dismiss, arguing that the State’s evidence is insufficient to establish any felonious intent—because he had a legitimate claim to the property, he couldn’t have committed robbery.
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It’s Tax Season… For Drugs
I spent a few years working on drug cases when I was a prosecutor, so I was generally aware that North Carolina has a set of laws that impose taxes on “unauthorized substances.” See G.S. 105-113.105 – 113. Just like cigarettes, cars, or blue jeans, these unauthorized substances are commodities that people buy and sell, so they are subject to taxation by the state.
I was also aware that, not surprisingly, virtually no one pays these taxes or obtains the appropriate “tax stamps” to put on their drugs and moonshine. Instead, the laws are used primarily as a mechanism to pursue civil forfeiture of a defendant’s assets after he or she is convicted of a drug offense.
But recently, I began to wonder – are these laws purely theoretical? Is it even possible for drug dealers to comply? Does the Department of Revenue keep big rolls of stamps behind the counter, like a post office? What would happen if someone walked into a Revenue office one day and said “hello, will you sell me some tax stamps for illegal substances, please?”
I wanted to find out, so that’s exactly what I did.
State v. Shelton Refines Sufficiency Analysis in Drugged Driving Case
The court of appeals decided State v. Shelton, ___ N.C. App. ___ (2019) yesterday, determining that the evidence of the defendant’s impairment was sufficient when he took impairing drugs hours before crashing his vehicle into a pedestrian after his brakes failed. Two aspects of the case are of particular interest: (1) the court’s evaluation of the sufficiency of the evidence in a case where no one opined that the defendant was impaired; and (2) how the State obtained evidence that drugs remained in the defendant’s system in the first place.