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The Impact of COVID-19 on Sentencing

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.

Few appellate courts have considered the impact the pandemic might have on sentencing, but some early opinions from state and federal courts have held that underlying health issues that render defendants vulnerable to COVID-19 constitute compelling grounds for relief from a sentence previously imposed. United States v. Zukerman, 451 F. Supp. 3d 329, 334–35 (S.D.N.Y. 2020); United States v. Macfarlane, 438 F. Supp. 3d 125, 127 (D. Mass. 2020); see also People v. Garcia, No. 2648/17, 2020 WL 6066990, at *4 (N.Y. Sup. Ct. Oct. 8, 2020) (granting release pending appeal). While the issue has yet to reach North Carolina’s appellate courts, the state’s sentencing laws provide a framework for trial courts to mitigate the sentences they impose in response to concerns about a defendant’s health and COVID-19.

There are a number of ways defendants and their attorneys might seek relief at sentencing on account of the pandemic. These include filing a motion for a presentencing investigation into the defendant’s health; asking the court to take account of nonstatutory mitigating factors relative to the pandemic; or asking the court to find that the pandemic or the threat it poses to a defendant’s health constitutes an “extraordinary mitigating factor” that warrants the imposition of an intermediate, as opposed to active, sentence.

Presentence investigation. With respect to the first option, defendants may move courts to order presentence investigations into their health under G.S. 15A-1332(b). Although presentence investigations are not typically ordered, these are not typical times. The Supreme Court of North Carolina has encouraged trial judges to make use of their authority to order such investigations. State v. Wilkins, 297 N.C. 237, 246 (1979); State v. Locklear, 294 N.C. 210, 213–14 (1978). In State v. Pope, 257 N.C. 326, 334–35 (1962), the Court characterized presentencing reports on a defendant’s “physical health” as information that is “pertinent to a proper judgment” at sentencing. The relevant statute at the time, G.S. 15-198, provided that the court could order a presentence “report to the court in writing [on] the . . . present condition of the defendant.” The modern iteration of the statute, codified at 15A-1332(b), broadly authorizes a presentence investigation, which presumably includes any pertinent information. See also G.S. 15A-1332(c) (authorizing presentence commitment if necessary to obtain further information, including to “inquir[e] into such matters as the defendant’s . . . physical health”).

Mitigating factors. While poor physical health is not specified as a statutory mitigating factor at sentencing, a trial court may properly consider it, or a defendant’s vulnerability to COVID-19, as a nonstatutory mitigating factor under G.S. 15A-1340.16(e)(21). This “‘catch-all’ provision” permits courts to consider “[a]ny other mitigating factor reasonably related to the purposes of sentences.” State v. Wagner, 249 N.C. App. 445, 453 (2016) (quoting statute).

A defendant making use of this catch-all provision may ask a court to consider nonstatutory mitigating factors related to the dangers of COVID-19 in a custodial setting. If the defendant offers uncontradicted, substantial, and credible evidence in support, it is within the “sound discretion of the sentencing judge” to find the factor. State v. Spears, 314 N.C. 319, 322 (1985) (considering similar scheme under Fair Sentencing Act); see also State v. Porter, 178 N.C. App. 235 (2006) (unpublished) (stating that trial court “enjoys wide latitude in determining non-statutory . . . mitigating factors”). Once a mitigating factor has been found, the court in its discretion “may very properly emphasize” it more than other factors. State v. Davis, 58 N.C. App. 330, 333 (1982) (considering similar scheme under Fair Sentencing Act); accord State v. Gillespie, 209 N.C. App. 746, 748–49 (2011) (“The trial court does not simply add up the number of aggravating or mitigating factors, but rather is to carefully weigh the quality and importance of each factor.”).

Extraordinary mitigation. Defendants whose offense and prior record level render them eligible also may ask the court to find that the threat COVID-19 poses to their health constitutes an “extraordinary mitigating factor” under G.S. 15A-1340.13(g). If the court makes such a finding, “an intermediate punishment may be imposed in lieu of an active sentence” when an active sentence is otherwise required. State v. Melvin, 188 N.C. App. 827, 830 (2008). “The law gives the trial court broad discretion to determine whether extraordinary mitigating factors exist.” State v. Leonard, 258 N.C. App. 129, 133 (2018). Defendants endangered by COVID-19 might also argue that those dangers, particularly in situations in which the state is unable to maintain an environment consistent with CDC protocols, implicate their rights under the Eighth Amendment and warrant a finding of extraordinary mitigation. See generally State v. Wilkerson, 232 N.C. App. 482, 490–91 (2014) (recognizing the authority of “trial judges . . . to grant postconviction sentencing relief on Eighth Amendment grounds”).

If readers have considered or encountered other ways in which COVID-19 affects sentencing, please post a comment, or email me and let me know, and I will update this post.

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