Retired U.S. Supreme Court Justice John Paul Stevens died on Tuesday in Florida at the age of 99 after suffering a stroke. As the Associated Press reports, Stevens served on the Court for nearly 35 years. He was nominated to the bench by President Gerald Ford in 1975 and retired in 2010. In 1976, Stevens joined the plurality opinion in Gregg v. Georgia, holding that Georgia’s death penalty scheme was not unconstitutional and ending the de facto national moratorium on the death penalty that followed Furman v. Georgia in 1972. In 2002, Stevens wrote the majority opinion in Atkins v. Virginia, holding that it was unconstitutional to impose the death penalty on intellectually disabled offenders. And in 2008, he wrote a concurring opinion in Baze v. Rees that indicated that he had arrived at the personal belief that the death penalty was unconstitutional in all cases. Keep reading for more news.
General Assembly Creates New Crime of Death by Distribution
Back in 2017, I wrote about murder charges premised on the unlawful distribution of drugs and what the State must prove to establish a defendant’s guilt. One element the State must prove is malice.
This legislative session the General Assembly created two new crimes penalizing the distribution of certain drugs resulting in a person’s death: death by distribution and aggravated death by distribution. S.L. 2019-83 (H 474). A distinguishing feature of the new crimes is that they require no proof of malice.
Missing Witnesses, Mistrials, and Manifest Necessity
The Fourth Circuit recently issued a decision prohibiting retrial of a defendant charged with murder following a mistrial. The government obtained the mistrial over the defendant’s objection when a key witness could not be located during the trial. On appeal, the Fourth Circuit found that no manifest necessity justified the mistrial and that double jeopardy prohibited another attempt by the government to convict the defendant. I previously wrote about mistrials and double jeopardy here, and I wanted to flag this case for readers for its treatment of missing witnesses in the mistrial context. The case is Seay v. Cannon, ___ F.3d ___, 2019 WL 2552953 (4th Cir., June 21, 2019).
How Big a Role Does Money Play in North Carolina’s Bail System?
I have discussed elsewhere criticisms and concerns asserted regarding money-based bail systems. Among other things, it is argued that money-based bail systems undermine public safety by allowing dangerous but wealthy people to buy their way out of jail with no supervision, and—citing recent empirical research—that unnecessary incarcerations of low-risk people who cannot pay their bonds causes more crime once those people are released. It also is asserted that unnecessary wealth-based detentions of low-risk individuals are unfair, disproportionately impact people of color and inefficiently use taxpayer resources. Finally, some point to successful legal challenges to money-based bail systems as creating litigation risk. In light of those criticisms and concerns, it is natural to wonder: How big a role does money play in our state’s bail system? The answer: A lot.
News Roundup
The major national criminal law news of the week was the arrest of Jeffrey Epstein on federal sex-trafficking charges involving underage girls. Epstein, who often is referred to as a billionaire financier though the extent and source of his wealth is largely shrouded in mystery, pleaded guilty in 2008 to prostitution charges in Florida state court as part of an unusually lenient plea agreement that allowed him to avoid serious federal sex crime charges and shielded any of his co-conspirators from prosecution. That plea agreement was approved by current Secretary of Labor Alexander Acosta, who was the United States Attorney in the Southern District of Florida at the time. Over the years, Epstein has been connected to President Donald Trump and former President Bill Clinton. Keep reading for more news.
Does United States v. Haymond Impact Probation and Post-Release Supervision in North Carolina?
In United States v. Haymond, 139 S. Ct. 2369 (2019), a divided Supreme Court concluded that a federal statute was unconstitutional to the extent that it exposed the defendant to additional mandatory imprisonment based on a judicial finding that he had violated his supervised release. Does the case have implications for probation and post-release supervision hearings in North Carolina?
Criminal Jurisdiction on the Qualla Boundary
Last month, I traveled to a hotel located on the Eastern Cherokee Indian Reservation, or Qualla Boundary, in Cherokee, North Carolina to teach at the summer conference for North Carolina prosecutors. Probably because I had crime and criminal prosecution on my mind, I found myself wondering what happens when a person commits a crime on the reservation. What law applies? Who enforces the law? Who prosecutes the person – and where? I thought I’d do a little research and quickly find the answers. As it turns out, a complicated combination of federal, state, and tribal law governs Indian Country, including the Qualla boundary. And the answers to these questions vary depending on the race of the perpetrator and the victim and the nature of the crime.
Supreme Court Announces New Exigency Test for Blood Draws from Unconscious DWI Suspects
Late last month, the Supreme Court decided Mitchell v. Wisconsin, 588 U.S. ___ (June 27, 2019), a case in which the petitioner argued that the State of Wisconsin violated the Fourth Amendment by withdrawing his blood while he was unconscious without a warrant, following his arrest for impaired driving. Like many other states, including North Carolina, Wisconsin has a state statute that permits such blood draws. The Wisconsin Supreme Court affirmed the petitioner’s conviction, though no single opinion from that court commanded a majority. The Supreme Court granted certiorari to decide “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.” Though no justice found such a statutory exception and the judgment below was vacated, the outcome was not a win for the petitioner. Instead, a plurality of the court announced a State-favorable exigency rule, which it instructed the lower court to apply on remand.
Red Flag Laws and the Second Amendment
About a year ago, Shea wrote about red flag laws, sometimes called gun violence restraining orders or extreme risk protection orders. More than a dozen states have such laws, and several bills are pending in the General Assembly that would enact a red flag law here. But are red flag laws constitutional?