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The General Assembly recently passed, and the Governor recently signed, HB 2 (S.L. 2016-3), popularly known as “the bathroom bill.” This post considers whether it is now a crime for a transgendered person to use the bathroom of the sex with which he or she identifies.
Local and national reaction to the General Assembly’s approval in a one-day special session last week of House Bill 2, the “Public Facilities Privacy & Security Act,” is dominating the news. The Charlotte Observer’s initial report about the bill being signed into law is available here. Over on the SOG Coates’ Canons blog, Trey Allen has a thorough overview of the new law and Norma Houston takes a look at its impact on city and county contracts. In connection with the Charlotte controversy, Jeff considered the criminal implications of restroom usage by the opposite sex in this post from last year.
Proponents have argued that the new law is intended to protect public safety, but critics say it is discriminatory. The News and Observer reports that Attorney General and gubernatorial candidate Roy Cooper has announced that his office will not defend the law which has already been challenged in federal court. In response, Governor Pat McCrory released a video criticizing Cooper’s decision, and N.C. Senate President Pro Tempore Phil Berger called for Cooper to resign. Keep reading for more news.
Probation that includes incarceration is “special probation.” But it’s still probation.
On Fridays, National Public Radio features recordings from its Storycorps booth. These recordings sometimes feature a teacher and student, a parent and child, spouses, or a single person discussing a life-changing experience. They are always thought-provoking, and often are heart-wrenching.
I’m not looking to steal Storycorps’ thunder nor aiming to make anyone cry (a common Storycorps side effect), but I am interested in creating a broadcast for the School of Government that relates to impaired driving. I want to start by hearing from people who have been convicted of misdemeanor impaired driving. I want to know whether and how that experience altered the course of their lives–for the better or for the worse.
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.
A few years ago, I attend the Judicial Conference of the Fourth Circuit, where I heard Bryan Stevenson speak. The address was captivating. Stevenson spoke of representing the wrongly accused and the wrongly convicted. He told of advocating for juveniles who were incarcerated with adults and who were sexually abused as a result. He urged the audience to get a little closer to the criminal justice system, and to look a little more carefully at it. Now Stevenson has written a book, Just Mercy: A Story of Justice and Redemption. Among many other awards, it was named a best book of the year by the New York Times, the Washington Post, and Time magazine. I thought it was good, but not great.
The SOG is closed for a holiday tomorrow, so the News Roundup is coming to you a day early. This week’s top news story is the bombing of the airport and a metro station in Brussels. USA Today has full coverage of the attack here. Three explosions were reported and at least 34 people were confirmed dead in the attack at the time of writing. According to USA Today, the Islamic State has taken credit for the attack and Belgium’s federal prosecutor confirmed that the bombings were the work of terrorists. WRAL has a story about a local man who was in Brussels Airport and survived the bombing. Keep reading for more news.
No, Justice Ervin didn’t use the words hot mess. But anyone who slogs their way through the tortured procedural swamp that led to State v. Miller, __ N.C. __ (March 18, 2016), is bound to agree that the procedures adopted in 2006 for appeals in DWI cases have created a nearly impenetrable bog for the parties involved. I’m going to do my best here to succinctly explain what happened in Miller. Then I’ll share an idea for freeing litigants and judges from the procedural muck in which they are currently mired.
Last April, 2015, the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), significantly limited the scope of a traffic stop. The Court ruled that an officer may not extend a completed traffic stop for any period of time, no matter how brief, to conduct a dog sniff—absent reasonable suspicion of criminal activity (or consent). The Court rejected the government’s argument that an officer may incrementally prolong a traffic stop, which some lower courts, including North Carolina’s, had justified as a de minimis intrusion. The Court reasoned that a dog alert is not a permissible part of a traffic stop because it detects evidence of ordinary criminal wrongdoing, which is not part of an officer’s traffic mission. The Court, however, clearly indicated that if a dog sniff or other non-traffic-related activity does not add any time to the stop (in this case, it added 7–8 minutes), then the dog sniff or other activity is valid under the Fourth Amendment, as it previously had ruled in Illinois v. Caballes, 543 U.S. 405 (2005).
Last week, the North Carolina Court of Appeals reversed a defendant’s conviction under G.S. 90-95(d1)(1)(c), which makes it unlawful to “[p]ossess a pseudoephedrine product if [a] person has a prior conviction for the possession or manufacture of methamphetamine.” The court ruled that the defendant’s “due process rights under the United States Constitution were violated by his conviction of a strict liability offense criminalizing otherwise innocuous and lawful behavior without providing him notice that a previously lawful act had been transformed into a felony for the subset of convicted felons to which he belonged.” In other words, the defendant’s apparent ignorance of the law excused his violation of it.