Fixing Our Broken Driving License Regime

North Carolina recognizes a privilege, not a right, to drive on its roads. This is true of most states, but in North Carolina the failure to be properly licensed can create significant hardships to the unsuspecting.

For instance, I’ve seen people walk into court and plead guilty to a single instance of a Driving While License Revoked, believing that the conviction is the equivalent of a mere traffic citation.

Unfortunately, a single DWLR conviction causes an automatic one-year suspension of a license. Subsequent DWLR convictions can result in longer suspensions, or even worse.

For some reason, Driving While License Revoked cases inspire a good deal of concern among prosecutors and judges that really is hard for me to understand. I am certainly not sympathetic to the person who is habitually coming to court, having failed to properly be licensed.

But in an era of budget cuts, and real violent crime, imprisoning someone – even someone who habitually flaunts the law – seems to me indulgent on behalf of the criminal justice system at best, and cruel at worst.

After all DWLR and related crimes are, by definition, victimless crimes. Yes, the “state” in all its majesty has been offended by a person’s failure to get licensed and obey the law. But these crimes are basically paperwork crimes.

In a world where driving were a right – and I certainly think it’s closer to a right than a privilege, given how important driving is to maintaining a job, a household, and caring for children – punishing someone for their failure to have the proper papers would seem odd. After all, we don’t punish people for their failure to carry a passport or a driver license as they walk down the streets. And nor should we.

This is a free country.

But more to the point: if North Carolina had a simple and inexpensive way to regain licensing, then punishing people for failure to do so would at least seem proportional to the crime. But North Carolina does not.

First, an old forgotten traffic ticket can create a revocation. While middle and upper-middle class people might wonder why someone doesn’t handle an old speeding ticket, the poor amongst us might realize that if the choice is between paying the rent, the phone bill, or for food, that choice is easy, and the old speeding ticket goes unpaid.

Second, the court system tacks on penalties. Not only does someone have to pay a $190 court cost, plus fines, the person may have to pay an additional $250 for a Failure to Comply or Failure to Appear fee.

In addition, the person then has to pay money to the DMV for the license reinstatement. These fees add up.

The key is this: we would want as many licensed and insured drivers on the road as possible. We shouldn’t try to throw up road blocks (so to speak) that prevent people from being law abiding.

Amnesty programs would be helpful as a quick and easy measure to re-license people. Cooperation among DA’s offices would also help, so that people who have multiple infractions or tickets in various counties can get them all resolved without paying repeated FTA, FTC, and court costs.

But the legislature needs to stop trying to balance the budget on the backs of criminal and traffic offenders. The criminal courts should be about stopping crime and punishing crimes, not budget reconciliation.

One way to save a ton of money in this process is to make the DWLR and NOL infractions, rather than criminal cases. And to end the practice of Voluntary Dismissals with Leave (VL) that place all the power in the prosecutor’s hands to avoid reinstating cases until a person pleads guilty.

If we want to encourage law abiding behavior, making it easy to be law abiding is the right way to go.

The Urge to Punish – Aaron Swartz, RIP

Aaron Swartz committed suicide this past weekend. I did not know Aaron Swartz. You probably did not know Aaron Swartz. But we’ve all benefited from his brilliant mind. When Aaron was 14, he developed the protocol called Really Simple Syndication or Rich Site Summary (RSS), which is used by individuals and companies throughout the web to distribute new content.

He helped found Reddit, which is today one of the most highly trafficked websites on the internet. He founded DemandProgress, an organization instrumental in helping to defeat an awful piece of legislation called SOPA that would’ve given the government power to blacklist certain websites.

Aaron was an activist who, when he saw injustice, took steps to stop it. Believing that PACER, the government’s system of electronically distributing otherwise free court records for a fee was unjust, he helped liberate millions of records causing the FBI to investigate him. That investigation turned up nothing criminal.

In 2008, Aaron decided that JSTOR, an extremely expensive online subscription service designed to distribute academic articles published in journals, should be free as well. He logged onto MIT’s network and downloaded millions of otherwise free journal articles to which he had legal access. He had planned to make these available free on the web, but never did so.

The federal prosecutor in Massachusetts decided to prosecute him. Perhaps Aaron was guilty of trespassing – for having placed his computer in a networking closet at MIT to download these articles – but the federal prosecutor decided she would throw the book at Aaron. He was indicted on 13 felony counts that could’ve landed him in prison for 35 years and resulted in fines of $1 million.

Aaron had long suffered from depression. But the decision to prosecute him – to threaten to put him in jail for 35 years for what was an act of civil disobedience – surely contributed to his state of mind.

His parents write:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

As Larry Lessig writes:

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million-dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and f***ing sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: shame.

Top 8 Developments in 2012 in North Carolina Criminal Law and Practice

North Carolina’s criminal law and practice witnesses a number of developments in 2012 that changed the way criminal defense law is practiced in the state and in Wake County. Some of these changes were passed and technically went into effect in December 2011, but their real effect was in 2012.

Below is an overview of key developments, both from a statutory and case law perspective, but also from a practice perspective.

1. Enhanced DWI Punishments. North Carolina already had pretty punitive Driving While Impaired statutes, but legislation that went into effect in December 2011 dramatically changed the way certain DWIs are prosecuted in North Carolina. These changes included the addition of a sentencing level (Aggravated Level One) chiefly aimed at repeat offenders, an increase in fines and fees (including the addition of a $100 DWI administrative fee), and the raising of the age of someone who is considered a minor in the car.

The raising of the minor’s age from 16 to 18 meant that even certain teenagers who get caught driving while impaired may face between 30 days and two years in jail simply because there is another teenager in the car under the age of 18.

This change has dramatically affected the way these DWIs are handled, raising the stakes for very young drivers who have friends in the car and may be driving under the influence.

2. The Re-Introduction of Parole – Other changes that went into effect in late 2011 changed the way people are punished for felonies. Parole had largely been eliminated in 1994 by North Carolina’s move to Structured Sentencing. But the Justice Reinvestment Act of 2011 added Post-Supervision Release (also known as parole) of 9 months (for non-sex-related offenses) to many felonies. These changes mean that even after people come out of prison, they will be supervised in many cases for at least 9 months.

3. Changes to Probation – The Justice Reinvestment Act of 2011 also introduced significant changes to probation. First, probation officers have much more control in terms of adding new conditions to probation without the court’s explicit authority. Second, intensive probation was eliminated. Third, probation is no longer tolled once someone is charged with a new criminal offense. The elimination of tolling only affects people placed on probation after December 1, 2011.

4. Elimination of the Intermediate Sanction – Structured Sentencing includes three punishment types. An active prison sentence. A community sentence (probation, fines), and an Intermediate sanction which, in the past, meant the defendant was sentenced to probation plus some additional intermediate sanction (a split sentence, drug court, intensive probation, etc.). The Justice Reinvestment Act eliminated a clear distinction between community sentence and an intermediate sanction. Effectively, the only requirement of an intermediate sanction is that the person be placed on supervised probation.

5. Wake County Courthouse – The courthouse lost a wonderful judge. An attorney was convicted of felonies related to DWI cases in Wake County.

6. Enhancements to Felony DWI Laws – Largely owing to perceived leniency in high profile DWI cases, the North Carolina General Assembly increased the punishments associated with DWI offenses involving serious injury or death. In the past, District Attorneys would charge DWI repeat offenders whose conducted resulted in a death with second degree murder. The legislature has eliminated that requirement by effectively imposing lengthy active prison sentencesfor someone convicted of an impaired driving offense who has previously been convicted of an impaired driving offense and whose conduct results in the death of another person.

7. Confrontation Clause Jurisprudence – The Supreme Court has continued to refine the Sixth Amendment’s Confrontation Clause case law since the landmark Crawford v. Washington in 2004. In 2011, the Supreme Court handed down Bullcoming v. New Mexico in a DWI case involving the testimony by a substitute expert. Substitute experts – that is to say, analysts who did not perform any of the testing on the original chemical sample – are not permitted to testify as to the results of the sample. In Williams v. Illinois, 132 S.Ct. 2221 (2012), the Supreme Court held that because an expert’s statement about a report regarding the DNA in a swab taken from a victim. The Supreme Court held that because the expert’s statement was not offered for the truth of the matter, but merely as a hypothetical, the expert’s statement did not implicate the confrontation clause.

8. Regulation of Guns – The events of the past month in Connecticut have affected the national debate over gun control, and will likely lead to new legislation in 2013 regarding the sale of high capacity clips, of certain kinds of weapons, and an increase in background checks and other formalities designed to ensure that people with mental health issues do not acquire firearms.

Challenging the Underpinnings of the Drug War

Richard Branson’s son has just released a new documentary in its entirety on YouTube that looks into the policy implications of the drug war.

As a Raleigh drug lawyer, I’m often confronted by these realties as clients who either are addicted to drugs, or implicated in drug conspiracies seek my help.

One thing is clear: this country spends an enormous amount of resources punishing people for things they put in their bodies.

Changes to North Carolina DWI Laws in 2012

North Carolina DWIs underwent a substantial overhaul in 2011, with the addition of a new sentencing level for the standard Misdemeanor DWI, the expansion of punishments, the addition of a new $100 administrative fee, and the change in definition of certain factors used in the determination of a person’s sentencing level.

In 2012, the changes have been far less dramatic, the most important of which is a modification to the State’s Felony Death or Serious Injury by Motor Vehicle law (also known as the Felony DWI death statute).

The statute, first drafted in 1973, creates felonies for people who have been convicted of killing or seriously injuring another person (including passengers of their own vehicles) as a result of impaired driving. It also creates a Class A1 misdemeanor for someone whose violation of traffic laws (other than impaired driving) causes the death of another person.

In the past, someone convicted felony death by motor vehicle was sentenced as a Class E felon. Because, by and large, someone convicted of a sentence usually has no prior criminal record, the typical defendant in such a case would only serve between 3 or 4 years.

In egregious cases – where there was a very high BAC DWI or very reckless driving – prosecutors might charge the defendant Second Degree Murder. Such was the case of Raymond Cook, a doctor convicted in 2011 of killing Elena Shapiro. But, as WRAL reports, jurors have been hard pressed to find the kind of reckless disregard for others that is required of Second Degree Murder in those cases.

Now the North Carolina General Assembly has increased the punishment for Felony Death by Motor Vehicle to a Class D. A Level 1 offender with no prior record can be sentenced to a minimum maximum term of 80 months – or nearly 7 years – effectively doubling the punishment.

The Class D range also gives the judge a lot of flexibility because the range of time is much wider.

Interestingly, the Class D felon typically is only eligible for an active sentence, but the statute does create an exception to allow a probationary sentence in Felony Death by Motor Vehicle cases where the judge thinks that outcome is appropriate. It would be a rare case where a judge might impose an intermediate sanction (aka probation).

Federal Government Re-Evaluates Immigration Policy

Under current federal policy – the so-called 287(g) program – local officials are enlisted to identify people who may be arrested on state criminal charges – such as an assault, DWI, or worse – may be screened for immigration status.

If the detainee is identified as undocumented or illegal, then an ICE hold may be placed on the person, so that once they are released from state custody – either through payment of a bond, or dismissal or disposition of the state charges – they are subject to a 48 hour hold during which they can be transferred to federal custody for deportation proceedings to begin.

According to the News and Observer that program may be phased out as soon as the end of this year:

U.S. Immigrations Customs and Enforcement officials say the so-called 287(g) program that includes Wake County will continue at least until the end of the year. But ICE says the program is under review, and that it will no longer train local police under the program or give them the authority to question, investigate and arrest people they suspect are in the country illegally.

Wake County Sheriff Donnie Harrison has been a proponent of the 287(g) program. Nonetheless, “[t]he Department of Homeland Security is still reviewing 57 complaints against the Wake County program, and ICE suspended its 287(g) agreement with the Alamance County Sheriff’s Office after the U.S. Justice Department found deputies there were exceeding their authority by checking the immigration status of Latinos on the street.”

An Expansive Vision of Federal Criminal Law

The founders sought to create a federal government of limited, enumerated powers. The states, by contrast, where originally conceived is having police powers – the power to essentially enforce common criminal laws, to take one example.

The original conception of the federal government was at once principled and practical. It was principled in the sense that various founders – mostly the anti-federalists – were fearful of a federal government with vast powers that could dictate to individuals how to live their lives. It was also practical because the colonies – the original 13 states – were individual political entities, and pre-dated the federal government.

It’s hard to imagine today that various states had much power, but in the 1770s and 1780s as the country was being pieced together, the states were the primary centers of political life. The states were jealous of their powers, and at least initially created a fairly weak federal government in the form of the Articles of Confederation and later a much more powerful federal government under the Constitution.

Nonetheless, the federal government was far less powerful than it is today by design. In the past 200 years, the federal government’s power has grown enormously, primarily through three constitutional tools – the fourteenth amendment and the commerce clause and the taxing clause. In addition, certain provisions have essentially become nullities – including the 9th and 10th amendments.

Most of the debates over the power of the federal government are focused on questions of whether Washington has the power to enact this or that large government program. THe most recent example was the Supreme Court case involving the Affordable Care Act (also known as Obamacare). Political liberals tend to be in favor of these sorts of programs; political conservatives tend to be opposed.

But the federal government’s power matters more concretely in issues of criminal law. In in these debates, political conservatives tend to support an expansive police state, involving harsh enforcement of federal drug laws and federal criminal laws.

In the 1980s, prompted by the Reagan Administration’s doubling-down on the drug war and by anxiety over the “crack” epidemic, Congress enacted harsh drug sentencing regimes that to this day mean that the federal government imprisons more people than any other state, and imprisons more people than most other countries.

The federal government is also always in search of creative – some would say questionable – ways of arrogating to itself police powers.

Criminal laws enforced by the federal government must have some interstate nexus. The Hobbs Act, passed in the 1950s, for makes it a federal crime to commit a robbery. For the most part, common robberies are enforced by the State government, such as North Carolina. But if a federal official wants to prosecute a run-of-the-mill robbery, he or she merely needs to identify an interstate nexus – perhaps the store that was robbed was selling goods shipped in from another state. Perhaps the firearm that was used was manufactured outside of the state.

Whatever tenuous link is made will usually support a federal prosecution of what is essentially a garden variety local crime.

The Supreme Court has only rarely set limits on the federal government’s power to prosecute these crimes. For instance, in Scheidler v. NOW, the Supreme Court said that free standing violence was not sufficiently connected to interstate commerce such that it was contemplated by the Hobbs Act.

Still, the Federal Government seeks to prosecute free-standing violence. For instance, read about How the Justice Department Transformed an Amish Feud Into a Federal Hate Crime.

The government also had to cite an “interstate nexus” to justify federal prosecution. You might think that would be a challenge, since all of these crimes occurred within a single state. But hey, look, Dettelbach says: The “Wahl battery-operated hair clippers” used in the assaults “were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware.” The defendants also used “a pair of 8” horse mane shears which were manufactured in the State of New York and sent via private, interstate postal carrier to [a retailer] in Ohio for resale.” They took pictures of their victims with “a Fuji disposable camera from Walmart” that “travelled in and affected interstate commerce in that it was manufactured in Greenwood, South Carolina.” They used “an instrumentality of interstate commerce” (i.e., a highway) to reach victims in Trumbull County, Ohio. (They never actually left the state, but they could have.) The indictment also mentions a letter (carried by the U.S. Postal Service!) that was used to lure one of the victims. An embarrassment of interstate nexuses, in more ways than one.

United States Imprisons More People than China or Russia

The United States has just 4.5 percent of the world’s population, but accounts for about 23 percent of the world’s post-trial imprisoned population.

With 1.6 million post-conviction inmates (which does not account for all the people on probation or in pre-trial detention), the United States’ most unique feature is the extent to which the federal government enforces day-to-day criminal laws. With more than 208,000 inmates, the United States federal government locks up more people than any other state, and more people than most other countries. Florida and California lock up a huge number of human beings.

Considering both pre-trial and post-trial inmates, the United States imprisons more people than China, Russia, and more inmates than all other developed nations combined.

Flawed Forensic Science under Review

The Washington Post has an extensive report on various forensic science.

The National Academy of Sciences in 2009 called for, among other things, removing labs and forensic science professionals from control of prosecutors and law enforcement.

In 2011, North Carolina renamed the state lab from the State Bureau of Investigation Crime Lab to the North Carolina Crime Lab, but kept the lab under the auspices of the chief prosecutor of the state in the North Carolina Department of Justice.

One of the problems is that, unlike DNA which was developed by scientists for medical applications and now is the most effective tool in forensic science, most fields of forensic science are not reliable – bite marks, hair or fiber analysis, fingerprints, and ballistics were developed by law enforcement for law enforcement – and the standards, methods, and approach are not about objectivity, but about how to find a perpetrator.

The problems, as Peter Neufeld of the Innocence Project explains, are systemic. Prosecutors have an incentive to dispose of cases expeditiously. Most criminal defense lawyers are not very well trained or conversant in scientific issues.

And, even in North Carolina, many lab technicians who perform the analysis are poorly trained or can’t even meet the basic standards by the certification agencies that oversee the field.

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