Last in Line for Change: North Carolina’s Prosecution of Misdemeanor Offenses committed by Sixteen- and Seventeen-year-old Youth

March 24, 2015

By: Kai Toshumba

Two states, North Carolina being one, are stuck on sixteen while the other forty-eight states throughout the country treat sixteen- and seventeen-year-olds as youth in the juvenile justice system.[i] In North Carolina your ability to be prosecuted in the juvenile justice system for a misdemeanor offense stops at the age of fifteen. This means, any sixteen or seventeen-year-old juvenile that commits a misdemeanor offense is prosecuted in the adult criminal court system.[ii] The biggest difference between juvenile and adult records is that, juvenile records are sealed and do not follow a child once they become an adult. As the law stands, once a child turns sixteen the charge is on their record for life. Do you remember when you were sixteen? Would you want a record of your actions from that age looming over you for the rest of your adult life?

The adult court system focuses on crime and punishment while the juvenile justice system focuses on “punishment and treatment.” Most notably, the juvenile justice system holds youth and their parents accountable, unlike the adult system. The juvenile justice system has positive benefits for youth who commit misdemeanor offenses; youth who go through the juvenile system are less likely to return to the system than those dealt with in the adult system. Moreover, forty-eight percent of youths who have been arrested have a greater chance of receiving rehabilitating services tailored to keep young people on the right path compared to twenty-three percent in the adult system. These services include: frequent contact with a court attorney, assessments, mental health and substance abuse treatment, and counseling. This is a good thing folks, and contrary to popular belief, this is not a get out of jail free card; the juvenile justice system holds young people and their families accountable.

We should talk about race/ethnicity.

If you polled a minority community on the sentiments regarding the number of individuals of color who enter the juvenile or adult court system, most of the community would say the statistics are disproportionate and affect their community. How do disproportional arrest and conviction rates affect minority youth throughout the nation? The statistics are startling, but not surprising. Accordingly, “[in] states with the highest rates of disproportionate confinement of African-American children, those children are incarcerated at a rate that is between ‘twelve and twenty-five times’ that of white children.”[iii] Throughout the nation, “Latino youth are admitted to state facilities at higher rates than whites, even when charged with the same crimes.”[iv] And “Native American children are detained at two-and-a-half times the rate of white children.”[v]

Photo courtesy of ABC Television Network.

Photo courtesy of ABC Television Network.

The short and long term effect of these convictions on a juvenile’s record is profound and extends to all areas of their lives. Arrests, court hearings, and sentenced time impede a young person’s ability to have a chance at completing their education and being a productive member of society. According to the North Carolina Governor’s Crime Commission Juvenile Age Study, an individual’s arrest records, especially convictions and incarceration, reduce future earnings of offenders and decrease their overall likelihood of gainful employment. When national averages reveal that minority youth are being arrested, convicted, and incarcerated at higher rates than their white counterparts, North Carolinians must look critically at our juvenile system. North Carolina is last in line to change a system that allows misdemeanor offenses of sixteen and seventeen year-olds to be prosecuted as adults, and we should encourage expedient reform of a current legislative bill because frankly, time enough.

 Reform is on the Horizon.

The age of juvenile jurisdiction in North Carolina was established in 1909, and has since remained unchanged. It took more than 100 years for the age of juvenile jurisdiction to even be considered, and on April 11, 2013, the “Raise the Age” Bill was introduced to the North Carolina General Assembly and in 2014, the NC House passed bipartisan legislation. Officially called the “Young Offenders Rehabilitation Act,” the bill is “an act to establish the juvenile jurisdiction advisory committee, to create a pilot civil citation process for juveniles, and to raise the age of juvenile jurisdiction to include sixteen- and seventeen-year-olds who have committed misdemeanor offenses.” Since coming into the Senate’s possession in May 2014, the bill’s progress has been labeled as, “Held in Senate Clerk’s Office.” This is not a good thing, and means the bill has come to a standstill until the Senate decides to further discuss the provisions of the bill and vote to make it law.

Critics of expanding the juvenile jurisdiction say that this expansion will cost North Carolina too much money, but reports indicate otherwise. The Governor’s Crime Commission Juvenile Age Study found that an enhanced juvenile justice system can save North Carolina money. Analysis shows that, changing the age of juvenile jurisdiction can create a net benefit of $7.1 million. Accordingly, an enhanced juvenile system can have a positive impact in North Carolina by reducing the rate of recidivism, which is considered re-offending, and reducing the cost per arrest for juveniles. Other states have had success in reducing the amount of juveniles who are sent to secure placement by introducing incentives for local jurisdictions by developing detention alternatives, or eliminating secure placement for certain low-level offenders. Nationwide trends show results in favor of enhanced juvenile justice systems that prosecute sixteen and seventeen year-olds as juveniles which have positive affects the future of a youth. The negative social and economic effect that a tainted record has on a young individual can affect their ability to be positive and productive citizens for the rest of their lives.

It is vital that North Carolinians encourage action from the legislature to evaluate what they have discovered through their own research, findings, and analysis that supports the expansion of the juvenile jurisdiction. Raising the age from fifteen to seventeen will allow more children the ability to refocus their lives through the programs the juvenile jurisdiction can offer and prevent an arrest record from impeding on their success as adults. A pivotal moment for North Carolina has been presented with the creation of the Raise the Age bill. It is essential that the legislature puts this bill back in motion to become law and ensure positive reform in the lives of children who encounter the justice system.

For more legislative information and to find your legislator visit www.ncleg.net and click on “Who Represents Me?” or call 919-733-7928.

[i] North Carolina, as well as New York, treat all sixteen- and seventeen-year-olds as adults when they are charge with criminal offenses.

[ii] N.C.G.S. 7B-1604. (a).

[iii] Megan Annitto, Juvenile Justice on Appeal, 66 Univ. Miami L. Rev. 671 (2012).

[iv] Id.

[v] Id.


Death Penalty Panel at CSL on Monday 3/23/15

March 19, 2015

Death Penalty Panel Flyer

 

Mark your calendars for Monday, March 23, 2015, at 6:00pm, as CSL’s Criminal Law Society hosts a Death Penalty Panel! The panel will take place in Room 901 and is catered by the Carolina Ale House. For more information, please contact Bradley Owens at owensb@students.charlottelaw.edu.


The Laws Are A-Changin’: A Look into the North Carolina’s Statewide Misdemeanant Confinement Program

March 10, 2015

By: M. Claire Donnelly

As of January 1, 2015, new North Carolina law is in effect that requires all misdemeanor and Chapter 20 sentences[1] to be served at the local county jail.[2] This newest change to the sentencing laws is a component of the Statewide Misdemeanant Confinement Program (“SMCP”), which was established by the North Carolina Justice Reinvestment Act (“JRA”). Originally established to “improve public safety, reduce corrections spending, and reinvest savings in strategies that can decrease crime and reduce recidivism,” the JRA policies began reforming the North Carolina criminal sentencing statutes in 2011. While these goals of the JRA seem to show that the legislation was passed to benefit the system, further consideration needs to be made: is housing misdemeanants at the county jail truly benefitting the criminal justice system?

Development of the Law

To start, the difference between jails, also known as “local confinement facilities,” and prisons, should be noticed. Jails are run by the local government and are “used to confine persons who are awaiting trial on criminal charges, are serving short sentences imposed for conviction of a crime, or are being held for a variety of other reasons.” Prisons are operated by the state government and are generally for individuals sentenced for longer periods of time.

Inmates at a cell block of the New Hanover County Jail.  Photo courtesy of StarNews.

Inmates at a cell block of the New Hanover County Jail.  Photo courtesy of StarNews.

Prior to the enactment of the JRA, North Carolina was only one of two states that sent misdemeanants to prison.[3] Thus, North Carolina prisons had very high populations as compared to other states, and they continued to do nothing climb. Between 2000 and 2010 alone, the North Carolina Department of Corrections reported a 27 percent growth in prison population, increasing the number of prisoners by more than 40,000. The State projected that the number would continue to climb, estimating that by 2020, there would be a 10 percent increase in prison population.

Because of the growth, the State reached out to the Council of State Governments Justice Center, which conducted research and data on the criminal justice system.[4] Strategies to improve the system were made and the JRA was introduced to curb the rising numbers. Initially, the JRA sought to correct several issues in North Carolina, not just misdemeanants in prison; major changes have also been made to active time for probation violations, exiting prison without community supervision, and the allocation of community supervision resources. Now reports are coming out that nationwide state prisons are going to experience a three percent growth by 2018, while North Carolina is reporting an eight percent decrease.

In 2011, the original change to the, JRA in regards to misdemeanor charges, was that sentences 180 days or less would be within the SMCP. Under that law, all sentences over 180 days and certain Chapter 20 driving violations would be served in prison. Now the law requires that “[a]ll misdemeanor sentences in excess of 90 days and all DWI sentences, regardless of length, are served through the State Misdemeanant Confinement Program … at a local confinement or treatment facility, not in prison.” Because the new law now includes all DWI sentences, an individual could get up to 36 months in a local county jail, which is the maximum sentence under the DWI laws. This 36-month sentence is an alarmingly higher sentence than the 180 days of the SMCP’s original sentencing guidelines. 

Justice v. Money

The legislature is touting the SMCP because it is a moneymaker. In this most recent change to the JRA, the SMCP proposal received bipartisan support in the General Assembly. Money is the likeliest motivator: 10 state prisons have closed since 2011, which is projected to save the state $48 million; a reported $560 million dollars will be “saved or avert[ed]” by 2017; and these savings come with a $9 million annual budget for treatment and community-based programs that remains the same as it was prior to the change. The legislature needs to look past the dollar signs. The original monetary goal of the program was two-fold: to truly “avert” the savings and to compensate the local jails for housing misdemeanor offenders. Neither of these goals is getting accomplished.

First, the goal of the JRA and the prison closures was that money would be re-directed to hire new probation officers. Hiring an estimated 300 new probation officers under Governor Pat McCrory’s proposed budget would not only beef up the currently-existing probation officer staff of 1,500, but would also allow more offenders to receive supervised probation rather than active time. No change to the budget to allow for this has been made.

Second, the compensation for local jails causes financial strain for local government. The state is providing $40 a day for each individual incarcerated at the local jail under the SMCP. This is attractive to jails that may have extra beds and can opt-into the program, however, the costs to house an offender in a jail is much higher than just $40 in North Carolina. In 2011, the Department of Corrections estimated the actual cost was $64.59 per day. New Hanover County estimates the cost is currently somewhere closer to $80 to $90 per day. In a recent project with Mecklenburg County, Clinic members learned that costs to house an individual were higher than $150 a day. Thus, while it may be helpful to get money for empty beds now, as more people stay at the county jail, local governments will face a serious financial strain under this model.

 Effects on Offenders

Statistics make the JRA look good on paper—and the long-term benefits may ultimately be good—however, one cannot help but to question the conditions and lack of programs of county jails as compared to state prisons. In the Justice Reinvestment Act Implementation Evaluation Report, an alarming statement confirms this consideration that needs to be made: “Programming (e.g. substance abuse treatment, CBI programming) for offenders housed pursuant to the SMCP is not available; generally, programming is not required in local jails.” With the minimal monetary allotment that counties are getting to house these misdemeanants, there are no additional funds available to provide the aforementioned resources they would have generally gotten in prison.

Along with lack of programming, it is unclear what will become of the good credit policies that exist for inmates. North Carolina’s Department of Corrections offered a variety of credit gaining programs for inmates, through the Inmate Nonprofit Program and other sentence reduction policies. The policies state: “When inmates are assigned to local confinement facilities or jails… the Sheriff or Administrator of the local confinement facility shall establish procedures for granting, approving, and documenting sentence reduction credit awards.” This potentially may cause another strain on local jails, in addition to monetary strains.

A noted benefit of the program is that it puts offenders closer to their families, being that they are not transferred to one of the state prisons, but rather remain in the county in which they committed the crime, or in a nearby county. So far 50 of the 100 counties have committed to participate in the SMCP, each with a varying number of available beds. While it may be positive for some offenders to be closer to friends and family, several realities may outweigh this benefit. Some incarcerated individuals do not have friends and family support. Others have been charged with a crime far away from home, making the goal of incarcerating them near home impossible. And this benefit is easy to evaporate, as once beds fill up in a jail that participates in the SMCP, the jail can “withdraw from the program completely,” causing those that would be near home to not reap this benefit of the program.

While the state makes money, potential harm could be occurring to the criminal justice system. Length of stay in local jails is now an issue. This issue needs to be addressed because several problems are going to occur to the local governments, and the resources available to inmates are evaporating. With the JRA, the state has saved money and the inmate population has been reduced, but has this occurred to the detriment of our system?

For more detailed information on the JRA and the other major changes it enacted, see the Justice Reinvestment Act Implementation Evaluation Report or the Justice Reinvestment in North Carolina: Three Years Later Report.

[1] Most states keep misdemeanants—individuals convicted of a misdemeanor—at the local jail because misdemeanor offenses are nominal crimes compared with felony offenses.

[2] The Council of State Governments Justice Center is a nonprofit devoted to “provid[ing] practical, nonpartisan advice and evidence-based, consensus-driven strategies to increase public safety and strengthen communities.” More information about the Justice Center can be found at http://csgjusticecenter.org.

[3] Chapter 20 violations covered by this statute include Driving While Impaired (DWI), Driving with a License Revoked (DWLR), and other motor vehicle violations.

[4] N.C.G.S. 15A-1352(a).


Professor Turowski Published in Renowned National Journal

January 26, 2015

One of our highly esteemed professors, Professor Carol Turowski, was recently published in The Champion.  The Champion is the renowned journal of the National Association of Criminal Defense Lawyers’ (NACDL).  Professor Turowski’s article, “Capital Cases,” provides insight on lethal injections and is very interesting read.  The following excerpt made us all want to keep reading more.  Congratulations, Professor Turowski!

“The recent spate of botched lethal executions in Oklahoma, Ohio, and Arizona has many legal experts in the country questioning whether methods used for carrying out these killings violate the constitutional prohibition against cruel and unusual punishment. Over the years, states have used various methods to carry out these deaths from public hangings, to the electric chair, to the gas chamber, to firing squads, and, starting in the late 20th century, to death by lethal injection. The majority of states that still allow capital punishment use the lethal administration of drugs because it is considered the most humane and cheapest method for killing a human being — or is it?”

Originally published in The Champion magazine. (c) National Association of Criminal Defense Lawyers.

 

The CRC would like to thank The Champion for allowing us to post this excerpt.  To find out more about The Champion and to access Professor Turowski’s article online, click here.  To download the article, click: Turowski Article 1 and Turowski Article 2.

 


Actual Justice

January 8, 2015

By: Kevin Friley and Cynthia Vogler, Criminal Justice Clinic Members

Most law schools require students to take courses in criminal law and criminal procedure in order to graduate.  What is not required is clinical experience. Clinical experience develops the actual skills required for lawyering. Criminal law teaches you the elements of common crimes, such as the mens rea and actus reus of crimes.  However, it does not teach you how the details of the incident and the nuances of each situation can change the perception of those elements.  Criminal procedure teaches the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution.   Illegal searches, defective warrants, and failure to advise of Miranda rights are all the red flags we are taught to look for.  While this information is undoubtedly important, the procedural aspect that will most likely help your client is the one you learn in the courtroom, not in the classroom. These applications in the field are something you can learn through clinical experience.

Clinical experience prepares you for lawyering in a way that a classroom cannot.  All of the factors that come into play when you are dealing with real people, real crimes, and real life cannot be replicated in a traditional educational setting.  The fear and anxiety that settles upon you in a courtroom when your client’s fate hangs in the balance is indescribable. Although in the Criminal Justice Clinic, we represent clients charged only with misdemeanors, these crimes can result in jail time, significant costs, and a criminal conviction that could forever damage their career and educational opportunities.

Procedurally, the defense attorney and the client are at the mercy of the prosecutor, who wields a significant amount of power.  The prosecutor decides what charges to bring initially and what charges to dismiss.  The prosecutor also controls the docket, thereby controlling the procedures of the courtroom. In a law school classroom, you are not taught the intricacies and responsibilities of each of these players in the criminal courtroom.

Although criminal law and procedure are essential courses for understanding basic legal concepts, real-world advocacy extends well beyond burdens of proof and the statutory schemes professed in the classroom.  As aforementioned, the roles played by others within the justice system are frequently glossed over in the classroom but are often the keys in successfully resolving cases.  Simply put, the personalities and motivators of the arresting police officer, the prosecutor, and the judge can prove just as important in defending a client as the governing statute or Constitutional provision.

Our first case of the semester had an interesting fact pattern, to say the least.  The client, Joan English,[*] was in her early twenties, unemployed, with a history of minor mental issues.  On the day Ms. English was taken into custody, the police had been dispatched several times.  Ms. English was having one of those days where everything just gets to you.  Everyone has had one of those days, when your friend from high school gets your dream job; your relationship with your boyfriend ends unexpectedly; everything is just going wrong.  That was Ms. English’s day.  She decided to go out for a bicycle ride.  She was weaving in and out of traffic, acting erratically, and several people called the police to report her strange behavior.

Ms. English returned home.  However because of her erratic behavior, the police encouraged her mother to have her committed.  This process involved going to the magistrate’s office and having an involuntary commitment order entered, as Ms. English’s mother felt she was a danger to herself and had no choice.  An involuntary commitment is a civil process as opposed to a criminal one.  In this case, Ms. English was committed to Carolinas Medical Center.  Before her mother could do that, Ms. English left her home again, this time to go to a retail shopping area.  She stole a basket assortment of candies, which she later discarded in the parking lot.  The police were again dispatched regarding Ms. English’s bizarre behavior.

The police officers came upon Ms. English in the retail parking lot and engaged her in conversation.   Ms. English’s mother completed the necessary paperwork at the magistrate’s office and the officers were instructed to pick up Ms. English and deliver her to the local hospital.   Ms. English was told she was not going to jail, but instead going to a mental hospital to get help.  The officers tried to handcuff her and she stiffened up.   Eventually, the officers did get the handcuffs on her and then attempted to put Ms. English in the police car.  Ms. English refused to comply, stiffening her body and resisting being put into the car.  The officers did succeed in getting Ms. English into the car and to the hospital without any injury or further incident.  Ms. English was in the local hospital for eleven days.  She attended therapy sessions that included coping skills and anger management, and was provided medication for her diagnosed mental illness.  Upon her release, Ms. English continued outpatient care and therapy.   Ms. English was arrested after her release for the charges of larceny and resisting a public officer, stemming from the incidents on the day of her commitment to the hospital.

In the English case, the characteristics of the arresting officer and two district attorneys ultimately determined when and how the case was disposed of.  From the outset, the client and her family expressed an understanding that the arresting officer was sympathetic towards her situation. A brief conversation with the officer on the client’s trial date confirmed this.  The officer understood that Ms. English had been experiencing some degree of mental distress at the time of the crime, and that her actions were likely the result of that distress rather than any criminal intent.  In this respect, the officer believed a criminal penalty would not benefit Ms. English.  The officer, without being prompted, stated that he was not opposed to dismissing the case.  When Ms. English’s case was ultimately dismissed, the assistant district attorney (ADA) deferred to the officer before making this decision.

Had this police officer not been compassionate and legitimately concerned with what was best for Ms. English, the case would have proceeded to trial.  The officer could have easily stood his ground and contended that Ms. English’s actions were within the meaning of the relevant statutes and that she should submit to the consequences of her actions.  Instead, the officer was thoughtful and understood what was best for Ms. English.  He wasn’t concerned with which actions were legal and which were illegal, he was concerned with the best outcome for the parties involved.  This is what justice is really about, rather than harsh, indifferent results that can fracture peoples’ lives.

Prosecutors and police officers play a substantial role in when and how a case is disposed, as prosecutors have a great deal of discretion.  How a particular prosecutor chooses to exercise her discretion can influence the outcome of a case far more than a statute or fact.  For instance, some prosecutors are focused primarily on efficiency in an effort to dispose of more cases, and thereby make quick decisions based solely upon the nature of the charge itself.  Others, however, are interested in the smaller details of the crime and are more invested in what outcomes are just.  We were fortunate Ms. English had a thoughtful prosecutor and police officer, both of which led to a just result.  Redefining justice as more than seeking a conviction and exacting a pound of flesh can be the first step in a serious dialogue with communities about the true meaning of justice.

[*] The name has been changed to protect the confidential attorney-client relationship.


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