Category: Criminal Justice Section

Pretrial Justice and Criminal Case Management Reform

By Robert C. Kemp III

One of the greatest honors in my professional career was serving on the N.C. Commission on the Administration of Law and Justice. As a member of the commission, I was assigned to the Committee on Criminal Investigation and Adjudication. Two of the topics we focused on were pretrial justice and criminal case management.

Although various methods of pretrial release exist in North Carolina, a secured bond is the most common form of release for a person charged with a criminal offense. Few defendants can afford to post the bail amount in full. Some defendants utilize bail bondsmen, who charge a percentage of the total bond amount in exchange for obtaining the defendant’s pretrial release. Unfortunately, many defendants cannot afford either option and are forced to remain in jail. Most such defendants are also unable to retain counsel and are instead represented by court-appointed counsel, such as a public defender.

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Chief Justice’s Commission Issues Report With Blueprint For Improving Indigent Defense

By Thomas K. Maher

On Dec. 2, 2016, the North Carolina Commission on the Administration of Law and Justice, which was the result of work by Chief Justice Martin, met for the final time. The commission worked through five committees, including the Criminal Investigation and Adjudication Committee. The Criminal Investigation and Adjudication Committee worked on several subjects, including the age of juvenile jurisdiction, pre-trial release, case management and indigent defense.  The work on indigent defense was done through a subcommittee, which included members with a wide range of experience, including two Chief Public Defenders, an elected District Attorney, a Sheriff, Magistrate, as well as District and Superior Court judges.  Professor Jessica Smith, from the School of Government, served as the reporter, and was instrumental in the production of the final report.

The 51-page report provides an in-depth discussion of the many challenges that any indigent defense system faces. The report also makes specific recommendations for improving North Carolina’s indigent defense system, some of which can be implemented without legislative action, and some of which will require legislation. These recommendations are a long-term blueprint for strengthening indigent defense. All of the recommendations are geared toward achieving a criminal justice system in which the quality of justice does not depend on the wealth of the defendant. The report emphasizes the importance of providing effective assistance of counsel to all who find themselves in the criminal justice system, observing that the cost of not providing effective representation includes not only wrongful convictions, but also excessive pre-trial detention, increased pressure on innocent persons to plead guilty, excessive sentences, and the dramatic collateral consequences that often accompany a criminal conviction. Indeed, the opening paragraph of the report states:

As the United States Supreme Court recently declared: “No one doubts the fundamental character of a criminal defendant’s Sixth Amendment right to the ‘Assistance of Counsel.’ ” This right is so critical that the high Court has deemed its wrongful deprivation to constitute “structural” error, affecting the very “framework within which the trial proceeds.” For indigent defendants, this fundamental right to effective assistance of counsel must be provided at state expense. When the system fails to provide this right, it denies indigent defendants justice. That denial has very real consequences for defendants, including excessive pretrial detention, increased pressure on innocent persons to plead guilty, wrongful convictions, and excessive sentences

There is no doubt that indigent defense throughout much of the United States is in a state of crisis, and that North Carolina is beginning to see the impact of lessened resources for indigent defense. The eroding quality of  indigent defense is an issue that concerns not only the usual liberal supporters of providing adequate counsel for those too poor to hire a lawyer, but also conservatives, such as Charles Koch, chairman and CEO of Koch Industries. The bi-partisan recognition of the importance of a healthy indigent defense system should provide hope that positive change is possible.

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Raise the Age For the N.C. Juvenile Justice System

By Eric Zogry and Marcus Thompson

The N.C. Commission on the Administration of Law and Justice’s Committee on Criminal Investigation and Adjudication is recommending that North Carolina raise the age of juvenile jurisdiction to include all youth under the age of 18 for all crimes.  Juveniles aged 16 and 17 charged with the most serious felonies may be transferred to the adult system after a finding of probable cause or indictment.  Other recommendations include reducing school-based recommendations to the juvenile justice system and regular training for law enforcement in handling juveniles.  This proposal also recommends more information be provided for law enforcement officers who may interact with juveniles and that information on juvenile records should be more accessible to prosecutors.

Since 1919, North Carolina has been the only state to treat youth ages 16 and 17 years old as adults in the justice system without exception.  However, substantial evidence supports that keeping individuals under the age of 18 in the juvenile justice system rather than the criminal justice system would have a significant beneficial impact on everyone involved, including benefitting the justice system economically.

Statistical data indicates that 96.7 percent of convictions for youth are usually for nonviolent felonies and misdemeanors, with misdemeanors making up 80.4 percent of these crimes.  Scientific studies suggest that because of the maturity level of the brain, for teens the ability to reason and control impulsive behaviors is very limited.  Reports from the John Locke Foundation also support that youth convicted in the criminal court system are actually more likely to be repeat offenders due to light sentencing for petty crimes, less support, and immaturity of the brain to consider the consequences of their actions.  Several United States Supreme Court cases have also held that the treatment of juveniles as adults in certain circumstances violates their Eighth Amendment right.

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Nominate Deserving Attorneys For the Criminal Justice Section’s Gilchrist and Smith Awards

NCBA Criminal Justice Section Members:

The NCBA Criminal Justice Section is continuing the tradition of presentations of the Peter S. Gilchrist III and Wade M. Smith Awards for the ninth year.  The 2016-2017 Peter S. Gilchrist, III/Wade M. Smith Awards will be presented Jan. 26, 2017, at the annual Awards Banquet at the Embassy Suites in Cary.  The banquet will precede the NCBA Criminal Justice Section CLE/Annual Meeting, which will be held on Jan. 27, 2017, at the Bar Center in Cary.

The NCBA Criminal Justice Section Council invites you to submit nominations for both awards.  Anyone can submit nominations. Please forward this request for nominations to your local bar and encourage them to submit nominations for both awards.

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