Two recent opinions from the Court of Appeals illustrate the remarkable controversy currently underway over the specificity required of indictments. In State v. Coffey, No. COA22-883, 2024 WL 675881 (N.C. Ct. App. Feb. 20, 2024), our Court of Appeals ruled an indictment for felony obstruction of justice was facially defective for failure to allege an essential element of the offense: the purpose of hindering or impeding a judicial or official proceeding or investigation. By contrast, in State v. Jackson, No. COA22-280, 2024 WL 925480 (N.C. Ct. App. Mar. 5, 2024), our Court of Appeals ruled an indictment for habitual misdemeanor assault was sufficient though it failed explicitly to allege an element: causing physical injury. This post attempts to reconcile the divergent analytical approaches taken in Coffey and Jackson.
Immigration Consequences of DV Offenses: Crimes of Domestic Violence
A noncitizen can lose status—that is, the right to be in the U.S.—and be forced to leave if he or she comes within a ground of deportability. In general, the grounds of deportability apply to noncitizens who have been lawfully “admitted.” This includes both lawful permanent residents (“green card” holders) and holders of temporary, nonimmigrant visas.
There are several criminal grounds of deportability in the federal immigration statutes, provided in Title 8, Section 1227 of the United States Code. One of these grounds is conviction of a crime of domestic violence. In order to be a crime of domestic violence under federal immigration law, the offense must meet the federal definition of a “crime of violence” under 18 U.S.C. 16 and must also be against a person in a domestic relationship with the defendant. This provision of the statute also includes deportation for crimes of child abuse, child neglect, or child abandonment, but discussion of those grounds is outside the scope of this post.
This post is the first in a two-part series and examines immigration consequences of convictions of offenses involving domestic violence under North Carolina law. It is not intended to be a comprehensive analysis of immigration law; rather, it assesses the immigration consequences of selected North Carolina offenses and only within the scope of the domestic violence ground of deportability.
News Roundup
A bill to “recriminalize” the possession of certain dangerous drugs is moving forward in Oregon. Oregon became the first state to decriminalize the possession of drugs such as cocaine, methamphetamine, heroin, and fentanyl when voters approved of a 2020 ballot initiative, with 58% in favor. If Governor Tina Kotek signs the new legislation (she states she will), possession of these drugs will again be classified as a misdemeanor. The new law would provide for a range of responses, including treatment alternatives to incarceration, diversionary options such as conditional discharges, and up to 180 days in jail. Proponents argue that the surge in fentanyl overdoses requires that penalties be reinstated, while others argue that decriminalization was not the cause of increased fentanyl use.
Read on for more criminal law news.
Case Summaries: N.C. Court of Appeals (March 5, 2024)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on March 5, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
State v. C.K.D.: Knoll What?
I have written before about the cache associated with a handful of unpublished opinions from the North Carolina Court of Appeals. Sure, they aren’t binding, but they can be persuasive. My guess is that the Court’s December 2023 opinion in State v. C.K.D.. No. COA23-204, 2023 WL 8748032, ___ N.C. App. ___, 895 S.E.2d 923 (2023) (unpublished), has been used as a persuasive tool in more than a few impaired driving cases since it was decided.
The C.K.D. Court upheld the dismissal of impaired driving charges based on the detention of the defendant for 11 hours following his initial appearance pursuant to an impaired driving hold. The Court determined that (1) there was no clear and convincing evidence that the defendant who had registered a 0.17 alcohol concentration posed a danger, and (2) holding the defendant for 11 hours irreparably prejudiced the defendant’s case by depriving him of the opportunity to have others observe his condition, even though the defendant indicated he did not wish to call anyone to witness his condition in the jail or to assume responsibility for him as a sober, responsible adult. I was a bit surprised by the outcome. I would have thought that the alcohol concentration standing alone would have been sufficient to support the hold. I also would have thought that the defendant’s failure to attempt to contact anyone from jail would have defeated his claim of irreparable prejudice. As noted, I would have been wrong on both counts.
This post will discuss C.K.D., explore how it differs from other court of appeals decisions following Knoll, and consider what the takeaways may be for magistrates imposing such holds.
The Violent Crime Rate in North Carolina Was Down Again in 2022
The national crime rate continues to attract a lot of media attention, but I haven’t seen much on North Carolina-specific crime data. In late 2022, I wrote about the violent crime rate in our state. In that post, I noted that violent crime rates fell between 2020 and 2021 and that rates for both years were far lower than the peaks of the 1990s.
Congratulations to Newly Certified Magistrates
Magistrates are often referred to as the “first face” of the judicial system for most citizens. They serve the public with professionalism, all while keeping abreast of the rapidly changing civil and criminal laws. In 2021, their training requirements were increased by the legislature from 12 hours every two years to 12 hours every year. … Read more
News Roundup
Bankman-Fried sentencing. Regular readers know that I’m interested in the criminal case against Sam Bankman-Fried, founder of the fallen cryptocurrency exchange FTX. I even read a book about Bankman-Fried, which I reviewed here. He has been convicted in federal court and his sentencing hearing is set for March 28. The United States Probation Office has calculated his Guideline sentence as 110 years in prison, and has recommended a downward variance to 100 years. (They temper justice with mercy at the United States Probation Office.) Bankman-Fried’s attorneys have responded with a 90-page sentencing memorandum, arguing that Bankman-Fried is a selfless philanthropist at heart; that there are no victims of his crimes because it now appears that there were sufficient assets in FTX to pay all customers and creditors; and that a proper application of the Guidelines calls for a sentence of approximately 6 years but that given various mitigating circumstances, “a sentence that returns [Bankman-Fried] promptly to a productive role in society would . . . comply with the purposes of sentencing.” Stay tuned for further developments! And keep reading for more news.
New Projects in Policing & Responding: Evaluating the Impact of Alternative Responses to Crisis Calls
In partnership with the North Carolina Association of Chiefs of Police and local stakeholders, the UNC School of Government Criminal Justice Innovation Lab (the Lab) is conducting two evaluations of North Carolina alternative responder programs over the next two years. These programs reduce or remove law enforcement’s role in responding to certain crisis calls—such as those involving behavioral health issues or homelessness—and connect people to services to address root causes of behavior. The first project is an evaluation of an existing program in the City of Burlington. The second is an evaluation of a pilot program in Orange County.
Addressing Substance Use Disorders Through Delinquency Dispositions
The Juvenile Code authorizes 14 different dispositional alternatives for delinquency cases that result in Level 1 dispositions and 23 different dispositional alternatives for delinquency cases that result in Level 2 dispositions. G.S. 7B-2508(c), (d); G.S. 7B-2506(1)-(23). For both Level I and Level 2 dispositions, cooperating with substance abuse treatment is a dispositional option. It can be challenging to sort through the many available dispositional alternatives to order an effective and individually tailored disposition that addresses the risks and needs of the juvenile. This blog addresses why it might be important to focus on substance use disorders as part of disposition, how to know when a juvenile needs substance use disorder treatment, and how substance use disorder treatment may be included as a dispositional alternative.