Recently, I was teaching a class about the habitual felon laws when a participant asked a question that I had never considered. We know that a defendant convicted of drug trafficking may be convicted as a habitual felon, and when that happens, the defendant’s term of imprisonment is determined under Structured Sentencing based on the elevated offense class set forth in the habitual felon statutes, not based on the mandatory term of imprisonment set forth in the trafficking statute. But what about the mandatory minimum fine listed in the trafficking statute? Must that be imposed, or is the defendant “habitualized out” of all the sentencing-related provisions of the trafficking laws? Apparently, this issue comes up regularly in practice.
News Roundup
On Tuesday the Justice Department charged 50 people, including celebrities and business leaders, with participating in nationwide bribery and fraud schemes that allowed their children to be admitted into top universities despite lacking the necessary qualifications. As the New York Times reports, parents, college preparatory businesses, university officials, and coaches paid and accepted bribes in order to secure spots at various competitive universities. The schemes were fractured and complex – sometimes a test proctor was bribed to adjust a student’s standardized test score, other times a coach was bribed to falsely label a student as an athletic recruit. The common denominator in the sprawling schemes was the exchange of significant amounts of money. The Times story describes situations where parents paid hundreds of thousands of dollars, and in at least one case more than $1 million, in order to fraudulently secure a spot for their child at a desirable school. Keep reading for more news.
Bail Reform in North Carolina—Pilot Project: Citation in Lieu of Arrest
In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of those reforms involves a new citation in lieu of arrest program. This reform includes implementation of a law enforcement-approved tool for patrol officers to encourage the increased use of citations in lieu of arrest for certain misdemeanors, in the officer’s discretion. The tool is a Cite or Arrest Pocket Card. Although the overall 30B project was a collaborative, multi-stakeholder endeavor, only the law enforcement community participated in the creation of the Pocket Card. The content of the card is reproduced below; in reality it’s a bright blue laminated card, the same size as the Miranda Warnings card.
Bail Reform in North Carolina—Pilot Project: First Appearances for All Defendants
In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of the implemented reforms involves providing first appearances for in-custody defendants charged with misdemeanors and Class H and I felonies (highest charge) or arrested on a probation violation within 72 hours of arrest or at the first regular session of the district court in the county, whichever occurs first. The new procedure went into effect on January 1, 2019.
Emojis in Court
Love them or hate them, it looks like “emojis” are here to stay. As of this writing, more than 3,000 emojis have been officially recognized, standardized, and named by the Unicode Consortium (a group that cares very deeply about emojis, among other things) and they have been adopted for widespread use on cell phones, tablets, email clients, and social media platforms.
Emojis now exist as a way to succinctly express everything from the ordinary and familiar ( 
smiling face; 
thumbs-up) to the surprisingly specific (
mountain cableway; 
moon viewing ceremony) to the routinely misunderstood (
not “angry” but rather “persevering face;” 
not “shooting star” but rather “dizzy”), to the criminally repurposed (
snowflake to mean cocaine; 
rocket to mean high drug potency).
The explosive growth of this alternative form of communication is raising some interesting questions for criminal attorneys and the court system as a whole. Should emojis be considered “statements,” on equal footing with written or spoken words? If they’re not statements, then what are they? Who decides what is meant by the use of a particular emoji? Do they have to be published to the jury and included in the record as images, or can they be summarized and described by words? What should practitioners do to make sure that emojis are accurately reflected in transcripts, court orders, and appellate opinions, since many court systems are text-based and do not allow for the inclusion of images?
Let’s 
about it.
May a Magistrate Conduct an Initial Appearance at a Hospital?
Sometimes a defendant is injured prior to or during arrest. When the injury is serious, the defendant may need to go directly to the hospital. May a judicial official, such as a magistrate, come to the hospital to conduct the defendant’s initial appearance? A federal magistrate judge did just that for Dzokhar Tsarnaev, the Boston Marathon bomber, and I’m told that some North Carolina magistrates have occasionally done the same.
News Roundup
As WRAL reports, the General Assembly passed and Governor Roy Cooper signed legislation that repeals the 2017 law designed to reduce the number of seats on the Court of Appeals from 15 to 12 over time. When it was passed, the plan to reduce the number of seats on the court caused Judge Doug McCullough to unexpectedly retire from the bench so that his seat would not be eliminated. The enactment of the new law keeping the number of seats on the court at 15 is intended to end litigation over the controversial measure.
New Punishment Chart Available
I’m pleased to announce the availability of the School of Government’s 2018 Punishment Chart for North Carolina Crimes and Motor Vehicle Offenses.
Should Prosecutors Change the Way They Work?
Advocates of criminal justice reform have called for numerous policy changes in recent years, including raising the age of juvenile jurisdiction, eliminating or reducing reliance on money bail, decreasing monetary penalties for poor defendants, ending license revocations as a sanction for failing to appear for court or pay monies owed, and abandoning mandatory minimum sentencing. Many have also advocated for a re-examination of the role of the prosecutor, suggesting that prosecutors could better channel their power and discretion to lessen racial disparities, reduce recidivism, rehabilitate offenders, and cut rates of incarceration. Two reports published last December focus on this re-envisioned prosecutorial function. The first, 21 Principles for the 21st Century Prosecutor, suggests practical steps that prosecutors can take to reduce incarceration and increase fairness. The second, Prosecutorial Attitudes, Perspectives, and Priorities: Insights from the Inside, explores what prosecutors in four prosecutorial districts think about definitions of success, office priorities, community engagement, and racial disparities.
Letting the Jury Know about “Collateral” Consequences of a Conviction
Under North Carolina law a criminal defendant has the right to inform the jury of the punishment for the crime being tried. In State v. McMorris, 290 N.C. 286 (1976), the North Carolina Supreme Court traced this right back to the mid-19th century. Back then, the legislature took umbrage at a judge’s refusal to allow a lawyer to argue both the law and facts to the jury and enacted what is now G.S. 7A-97. That statute states that “the whole case as well of law as of fact may be argued to the jury.” The Supreme Court in McMorris held that this provision gave the defendant the right to inform the jury of the statutory punishment in the case. The Court observed: “In a real sense the sanction prescribed for criminal behavior is part of the law of the case.” 290 N.C. at 287.