Earlier this year National Public Radio ran a series on court costs entitled Guilty and Charged. The general point of the series was that “the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders”—a population that is mostly poor. Missed payments often lead to more fees, interest, probation violations, and eventually incarceration.
North Carolina is no exception to the national trend. Continue reading →
This fall, North Carolina voters will decide whether to amend the state constitution. The proposed amendment would allow, for the first time, bench trials for felonies in superior court. Neither the media nor advocacy groups have paid much attention to the amendment, so almost no one seems to know that it is on the table. For that reason, I think of it as the stealth constitutional amendment. Despite the amendment’s low profile, allowing felony bench trials would be a major change.
The change could be for the better. For example, bench trials might save money, and some defendants — those with technical defenses, or those who are unpopular in the community — might prefer a judge to a jury. The 49 other states allow bench trials, so the amendment would bring us in line with the national norm.
But the change could also be for the worse. Once waiver is possible, defendants might be pressured to waive their right to a jury trial. Defendants with prominent and well-connected lawyers might get unfairly favorable treatment. Also, contrary to the majority rule in other states, the amendment doesn’t give the prosecution the right to insist on a jury trial if it believes that a bench trial would be inappropriate.
In an effort to draw some attention to the amendment and to provide some information about its possible benefits and costs, I worked with School of Government law clerk Komal Patel to prepare a report about it. The report is available here as a free PDF. In typical School of Government fashion, it doesn’t take a position on the amendment but it contains quite a bit of information about its potential impact and the practice in other jurisdictions. It’s written to be accessible to voters who aren’t very familiar with the criminal justice system, so please pass the link along to anyone who may be interested. As always, feedback and comments of all kinds are welcome.
A probationer is entitled to a hearing on an alleged probation violation, unless the hearing is waived. G.S. 15A-1345(e). What does it mean to waive a probation violation hearing? As a result of legislation passed in 2013, the answer to that question matters more than it used to for probation violations in district court.
Ordinarily, when a person’s probation is revoked or a split sentence is imposed in district court, the probationer may appeal to superior court for a de novo violation hearing. G.S. 15A-1347. (Other modifications of probation, including imposition of confinement in response to violation, are not appealable, as discussed here.) Under new G.S. 15A-1347(b), “if a defendant waives a revocation hearing, the finding of a violation of probation, activation of sentence, or imposition of special probation may not be appealed to the superior court.” The new law appears to apply to probation violations occurring on or after December 1, 2013—language I generally interpret to refer to the date of the alleged offending behavior, not the date of the hearing. S.L. 2013-385.
The problem is that a waiver of a probation violation hearing is not as clear of a thing—not as identifiable of a moment—as a guilty plea to a new criminal charge. Aside from the mention of a hearing waiver in G.S. 15A-1345(e), the statutes don’t really say anything about it. What little case law we have has stressed that a probation violation hearing is not a formal trial, and that “[u]nlike when a defendant pleads guilty, there is no requirement that the trial court personally examine a defendant regarding his admission that he violated his probation.” State v. Sellars, 185 N.C. App. 726, 728–29 (2007).
Given that relative informality, it may not always be clear when a violation hearing has been waived. If a probationer explicitly waives his or her right to a hearing and consents to a modification imposed out of court, then the hearing probably has been waived. But what about the probationer who admits to a violation, but still wishes to be heard on its circumstances, or on how the court will respond to it? Is the admission tantamount to a waiver, or is the argument regarding the proper sanction (house arrest in lieu of revocation, for instance) still a hearing of sorts?
I don’t see a clear answer in our statutes or case law. Given the uncertainty, some practitioners have taken the position that they will not admit to any violation in district court. They fear that the admission will be deemed a hearing wavier, and in turn a waiver of the right to appeal. Others have been careful to accompany any admission with some indication that the hearing was not waived. That requires a small modification to the relevant AOC forms (for example, AOC-CR-607), which generally place waiver and admission together on the same line, with a single check-box.
May community service fees be waived? I suspect some of you are thinking “I hope so, because they just were,” or something along those lines. It turns out to be a tricky question, I think.
First, let me be clear about what I mean by community service. I’m talking about community service ordered as a condition of probation, either as a special condition of probation under G.S. 15A-1343(b1)(6) or a community and intermediate condition of probation under G.S. 15A-1343(a1)(2). Those two conditions are essentially the same, and both require the probationer to perform community service and pay the fee required by law for it. (When the community and intermediate community service condition was initially added to the law in 2011, it did not include any reference to the fee, but an amendment in 2012—discussed here—added one.)
Community service ordered as a condition of probation, supervised or unsupervised, generally falls under the Community Service program described in G.S. 143B-708. (There is a background question about whether a judge may order community service outside the program, but let’s leave that aside for now.) Community service through the program requires the defendant to pay a fee of $250. Under G.S. 143B-708(c), that fee “shall be paid by all persons who participate in the program or receive services from the program staff.” Only one fee is required for each “sentencing transaction,” defined as all offenses considered and adjudicated during the same term of court.
In general, a person must pay the fee in full before participating in the community service program. A small exception is that the court in which the person is convicted may give the person of extension of time to pay or allow the service to begin before payment. G.S. 143B-708(c). (Prosecutors have similar authority for community service ordered in deferral cases, and probation officers have similar authority when the service was ordered through delegated authority.) Aside from that, the statute makes no mention of any authority to waive the fee.
The absence of any reference to a waiver is noteworthy. Court costs generally may be waived for just cause under G.S. 7A-304(a) (as discussed here)—but the community service fee is not set out in G.S. 7A-304, or incorporated into it by reference. Probation supervision fees may be waived “for good cause and upon motion of the person placed on supervised probation.” G.S. 15A-1343(c1). For electronic house arrest, the court “may exempt a person from paying the fees only for good cause and upon motion of the person.” G.S. 15A-1343(c2). For attorney fees, the court has express authority to order a defendant to pay “a portion, but not all, of the value of the legal services rendered” if, in the court’s opinion, that is what the person is financially able to pay. G.S. 7A-455(a). So, the legislature certainly knows how to include waiver or exemption provision when it wants to.
On the other hand, the legislature also knows how to say expressly that a fee may not be waived. Under G.S. 7A-455.1(b), the $60 attorney appointment fee is “mandatory” and “may not be remitted or revoked by the court.” I suppose the community service fee isn’t stated as mandatorily as that. But it does use the word shall. And the court of appeals has described such fees as a “non-discretionary byproduct of the sentence.” State v. Arrington, __ N.C. App. __, 714 S.E.2d 777 (2011); see also In re Greene, 297 N.C. 305 (1979) (holding that a judge does not have inherent power to continue prayer for judgment in a case when a certain punishment is made mandatory).
Be that as it may, the fee gets waived with some frequency. I imagine that may have something to do with its growth over time. When first enacted in 1984 the fee was $50. It grew to $100 in 1986, $200 in 2002, $225 in 2009, and $250 in 2010.
Even if it may not be waived on the front end, there may be support for a later remission of the fee. Under G.S. 15A-1363 a defendant may “at any time” petition the court for remission of a “cost” or any unpaid portion of it. The court of appeals has interpreted “cost” in that context as “fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or court rule.” State v. Webb, 358 N.C. 92 (2004). Along the same lines, any alleged probation violation tied to a failure to pay the fee might be defensible on the grounds that the defendant had a good faith inability to pay. If the defendant showed that to be the case, the judge would have authority at that point under G.S. 15A-1364(c) to reduce or remit the fee.
Following up on Jeff’s post yesterday about court costs and traffic citations, today’s post is about a trial judge’s authority to waive court costs.
Under G.S. 7A-304, certain court costs “shall be assessed” in every criminal case where a defendant is convicted or enters a plea of guilty or nolo contendere. Under the pre-2011 version of that law, a trial court’s general authority to waive court costs was unclear, but the law explicitly provided that costs would only be assessed in active punishment cases when the judgment said so.
In the 2011 budget act, the General Assembly addressed the waiver issue, saying in amended G.S. 7A-304(a) that the trial court could not waive costs unless it made a written finding of just cause to grant such a waiver. S.L. 2011-145, sec 15.10.(a). That change was incorporated into the boilerplate criminal judgment forms from the Administrative Office of the Courts as a check box for indicating that “[t]he court finds just cause to waive costs.” The 2011 legislation also removed the special rule for active sentences, thereby bringing them within the rule applicable to all cases: no waiver of costs absent a finding of just cause. The change was made effective “July 1, 2011.” Id., sec. 32.6. Generally speaking, when the legislature changes cost provisions the court system applies the change to all costs assessed on or after the effective date, regardless of the offense date of the offense being sentenced. That interpretation does not run afoul of Ex Post Fact Clause because costs are not part of a defendant’s punishment. See State v. Arrington, __ N.C. App. __, 714 S.E.2d 777 (Aug. 16, 2011).
In 2012, the General Assembly gave even clearer direction about the findings required to waive court costs. The 2012 budget act, S.L. 2012-142, sec. 16.6(b), again amended G.S. 7A-304(a), this time to provide that costs could be waived “only upon entry of a written order, supported by findings of fact and conclusions of law, determining that there is just cause.” That change was effective July 2, 2012 upon the General Assembly’s override of the Governor’s veto of the budget. Forthcoming versions of the AOC forms will provide space for the court to record those findings of fact and conclusions of law.
The issue of cost waivers came up in a recent court of appeals case, State v. Patterson. In Patterson, the defendant was convicted of failing to register as a sex offender and sentenced to 22–27 months in prison. At sentencing, the court ordered the defendant to pay $1,954.50 in court costs, stating “I have no discretion but to charge court costs and I’ll impose that as a civil judgment.” Slip op. at 2. The defendant argued on appeal that the trial court erred when it said that it lacked discretion to waive the costs. For the reasons that follow, the court of appeals agreed and remanded for resentencing.
The first question the appellate court had to address is what version of G.S. 7A-304 should apply. The parties thought that the pre–July 1, 2011 version of the law should apply based on the defendant’s offense date (March 1, 2011). The court of appeals disagreed, saying that the case should have been governed by the law in effect on the date judgment was entered, August 17, 2011. Because the 2011 changes to the law were effective July 1, 2011, the new law should apply. (In other words, the court of appeals concurs with the AOC’s approach to the effective dates of costs changes, described above.)
That being the case, Mr. Patterson was not subject to the rule that active punishments are exempt from costs except when explicitly imposed. To the contrary, costs would apply to the case by default unless the judge waived them for good cause. However, to the extent that the trial judge’s comment indicated that he had “no discretion but to charge court costs,” it was in error, and so the case needed to be sent back for resentencing.
Patterson raises some other issues worth noting. First, the dollar amount of costs assessed ($1,954.50) was too high. There was no information in the record to support that amount, but the court of appeals noted that in any event it far exceeded the total amount permissible under G.S. 7A-304. (The defendant’s brief suggested that the amount may have included attorney fees, which should be assessed separately under G.S. 7A-455.) Finally, I noticed that the court said that amount would be imposed as a civil judgment. That’s an issue coming up more and more now that costs apply by default in active cases—where they cannot be collected as a condition of probation. I’ll say for now that docketing of costs is covered under G.S. 15A-1365, but it’s a complicated enough topic that I’ll save it for a future post.
Yesterday, the United States Supreme Court decided Berghuis v. Thompkins, an important Miranda case. (There are other issues in the case, too, but this post will focus on the Miranda claim.)
The basic facts, taken from the Court’s syllabus, are as follows:
After advising respondent Thompkins of his rights, in full compliance with Miranda v. Arizona, 384 U. S. 436, Detective Helgert and another Michigan officer interrogated him about a shooting in which one victim died. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting.
Thompkins moved to suppress the statement, arguing that he had in effect asserted, or at least had not waived, his right to remain silent. The trial judge ruled against him, and after he was convicted, so did the state appellate court. He sought habeas relief in federal court, but the district court rejected his claim. The Sixth Circuit reversed, finding that his statement did not constitute an implicit waiver of his right to remain silent.
The Supreme Court disagreed. It held that “Thompkins’ silence during the interrogation did not invoke his right to remain silent,” or at least did not do so unambiguously, as precedent requires. “Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning,” but he did not do so. Instead, “Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police. . . . If the State establishes that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver.” Nor does a suspect’s waiver of his Miranda rights need to precede questioning: “After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived Miranda rights.”
The holding that Thompkins did not assert his right to remain silent by simply remaining silent is consistent with prior North Carolina cases such as State v. Westmoreland, 314 N.C. 442 (1985) (defendant who remained silent, except for occasional brief boilerplate denials of involvement, “only showed that he did not desire to respond to specific questions” and did not thereby assert his right to remain silent). The holding that Thompkins waived his right to remain silent simply by responding to a question, without previously expressing in some way that he was willing to answer questions, may be more consequential, and more controversial. Cf., e.g., 2 Wayne R. LaFave et al., Criminal Procedure § 6.9(d) (“[A] waiver is not established merely by showing that a defendant was given . . . Miranda warnings and thereafter gave an incriminating statement,” perhaps even when it is clear that the defendant understood the warnings).
I’m still digesting the case, and may post more thoughts later. For now, I’m on the fence about the importance of the decision. My sense is that it won’t matter in most cases — because most suspects either want to talk or quickly say that they aren’t willing to answer questions — but when it does matter, it will matter a lot.
When a defendant pleads guilty, he waives a variety of rights, including the right to a trial, the right to confront the witnesses against him, and so on. The waiver of those rights is inherent in a guilty plea — there can’t be a guilty plea without such a waiver.
If a defendant doesn’t just plead guilty, but does so pursuant to a plea agreement, the defendant may waive other rights as specified in the plea agreement. For example, a defendant may agree to waive his right to appeal. That’s not inherent in the idea of pleading guilty — defendants who plead guilty normally retain the right to appeal certain issues, as described in G.S. 15A-1444(a1)-(a2). Instead, it’s part of the give-and-take of plea negotiations, so at least in theory, the defendant should be getting something in return for the additional waiver of rights.
The Washington Post published an article this weekend about the use of “DNA waivers” in plea agreements in federal court. Essentially, some federal prosecutors’ offices ask defendants who plead guilty to waive their rights to post-conviction DNA testing, to which they might otherwise be entitled under 18 U.S.C. § 3600. It sounds like some offices essentially always require such waivers, while other offices sometimes do, and others never do. The story says that the Department of Justice is going to review the use of such waivers.
There are several types of additional waivers that could conceivably be part of a plea agreement in North Carolina.
I’m not completely certain that all of these waivers would be proper. And some of them, even if proper, might be insufficient to achieve their intended purposes. For example, even if a defendant could validly waive his right to the preservation of biological evidence under G.S. 15A-268, the statute also requires that the Attorney General be notified before such evidence may be destroyed in advance of the time otherwise permitted under the statute.
But some of these waivers would almost certainly be proper and effective. For example, although I’m not aware of a North Carolina appellate court case expressly approving of appeal waivers, the authorities cited above strongly suggest that such waivers are proper. In fact, such waivers are almost de rigeur in many federal courts, and I have often wondered why they are vanishingly rare in state court. Perhaps it is a matter of incentives: most United States Attorneys’ Offices handle their own appeals and so have a strong desire to reduce the number of appeals filed, while in North Carolina, the Attorney General’s office represents the state in criminal appeals, giving trial prosecutors no personal stake in appeal waivers.
The Sixth Circuit, sitting en banc, recently decided a very interesting Miranda case. Garner v. Mitchell, available here, is a capital case. The defendant stole a woman’s purse, took a taxi to her house, robbed it, and set it on fire to conceal his fingerprints, killing five of the six children who were sleeping in the house. Police arrested him and administered Miranda warnings, and he confessed to setting the fire. He was prosecuted for murder, convicted, and sentenced to death.
The case made its way through the state appellate and post-conviction process, and eventually, the defendant filed a federal habeas petition, arguing, among other things, that he lacked the capacity to make a knowing and voluntary waiver of his Miranda rights, by virtue of his IQ of 76. (Apparently, he hadn’t raised this issue, at least not in quite this way, in the state courts, but the federal courts decided to hear the issue anyhow, for reasons that aren’t relevant to this discussion.) The defense presented considerable evidence of the defendant’s abusive upbringing, low educational level, and borderline intellectual functioning. The defense also presented evidence from an expert who had administered an instrument called the Grasso test to the defendant. The test attempts to measure an individual’s ability to understand the Miranda warnings; the defendant’s results on the test were mixed.
On the other side of the ledger, there was testimony at a pretrial suppression hearing that the defendant had expressed his understanding of his Miranda rights and had executed a written waiver of them, and that he seemed “perfectly normal” and “very coherent” during his interview with the police. Further, the crime that the defendant committed involved some forethought and planning.
The federal district court found that the defendant’s waiver was valid. A panel of the Sixth Circuit reversed, concluding that the defendant likely lacked the mental capacity to execute a knowing and voluntary waiver. The en banc court allowed review and reversed again. The majority was plainly skeptical of the defendant’s claim that he lacked capacity, and was not at all enamored of the opinion of the expert who had given the Grasso test, but it actually decided the case on a different basis. It ruled that “[t]he underlying police-regulatory purpose of Miranda” means that whether a waiver is knowing and voluntary must be determined “from the perspective of the police,” and because “the police had no reason to believe that [the defendant] misunderstood the warnings, the defendant’s statement was admissible regardless of whether the defendant had the capacity to understand the warnings or not.
This is a big deal, given (a) that about ten percent of the population fall in, or below, the borderline intellectual functioning range, and (b) the possible application of this holding in related contexts, like defendants with limited English skills. The majority’s conclusion is certainly defensible — in fact, the court was following a Seventh Circuit case to the same effect — but it isn’t the only plausible view, and at least four of the Sixth Circuit’s judges didn’t agree with it, adhering instead to the view that a knowing and voluntary waiver must be knowing and voluntary on the part of the person executing the waiver.
This is almost certainly an issue that will come up with increasing frequency, as mental health issues are litigated more and more often. We don’t have a North Carolina case on point yet, but there’s a North Carolina murder case now on federal habeas review that may result in a district court opinion on this issue. It’ll be interesting to see how that comes out — and whether the Fourth Circuit, and eventually the Supreme Court, decide to jump in the fray.
Comments on the Sixth Circuit’s opinion are invited. Stay tuned for further developments.
