About seven years ago, I wrote this post about habitualized sex crimes. The issue I explored there was how to sentence a person convicted of a Class F through I sex crime when he or she has also attained habitual felon status. The question is whether the defendant, who is now sentenced as a Class B1 through E felon due to the habitual felon law’s four-class enhancement, is subject to the elevated maximum sentence applicable to Class B1 through E sex offenders under G.S. 15A-1340.17(f). When I wrote that post there was no appellate case answering the question. There is now.
In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that a person who commits a homicide when he or she is under 18 may not be mandatorily sentenced to life without parole; the sentencing judge must have discretion to impose a lesser punishment. In Montgomery v. Louisiana, 577 U.S. 190 (2016), the Court held that Miller applies retroactively. When Montgomery was decided, I wondered (here) whether it did more than merely address Miller’s retroactive application. Language in the case indicated that a sentence of life without parole would be constitutionally permissible for only the most the most troubling young defendants—“those whose crimes reflect permanent incorrigibility.” Id. at 209. In Jones v. Mississippi, 593 U.S. ___ (2021), decided last week, the Court made clear that the Constitution does not require a sentencer to make a separate factual finding of permanent incorrigibility before sentencing a defendant to life without parole.
While the suspension of jury trials caused by the pandemic has slowed the work of the criminal courts, judges across the state continue to sentence defendants who enter guilty pleas. The prospect of their clients facing prison time during the pandemic has spurred defense attorneys to consider what arguments might be made during sentencing proceedings with respect to the heightened danger of a defendant contracting COVID-19 in a correctional facility.
Today’s post shares a short paper on restitution that I recently prepared for the Conference of District Attorneys. I thought it might also be useful to other audiences.
As the struggle to contain the COVID-19 crisis grinds on, including concerns about the possible spread of the virus in jails and prisons, there has been a renewed interest in finding alternatives to sentences that involve extended periods of incarceration. It will come as no surprise to regular readers of this blog that Jamie Markham has written about such alternatives many times over the years. But in light of the current health situation, I thought this would be a good opportunity to revisit some of those topics, collect them together in one post, and try to expand on a few of the suggestions and options.
I should also acknowledge that this post was prompted, at least in part, by the fact that I only recently learned about an unusual type of sentence known as the “Holbrook Holiday.”
The North Carolina Sentencing and Policy Advisory Commission released last November a report recommending several changes to the state’s impaired driving laws and correctional policies. The report marked the culmination of more than three years of study that included examination of DWI sentencing and correctional data as well as consideration of input from law enforcement, prosecutors, defense attorneys, and providers of substance abuse treatment. The report’s fifteen recommendations address issues ranging from pretrial conditions of release for defendants charged with impaired driving to the place of confinement for defendants serving active sentences.
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.
I’m pleased to announce the availability of the School of Government’s 2018 Punishment Chart for North Carolina Crimes and Motor Vehicle Offenses.
The North Carolina Sentencing and Policy Advisory Commission has just published its annual Structured Sentencing Statistical Report for Felonies and Misdemeanors. Today’s post covers some highlights from the report.
In a previous post I wrote about State v. McNeil, a case that resolved the question of how to count prior convictions for possession of drug paraphernalia, in light of that crime’s 2014 division into Class 1 (non-marijuana) and Class 3 (marijuana) offenses. Today’s post is about prior convictions for second-degree murder—split into Class B1 and Class B2 varieties in 2012—in light of State v. Arrington, a case recently decided by the supreme court.