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NC Legislators Misunderstand Pleas

In previous posts, I wrote about how pleas are essential to a proper functioning NC criminal justice system. I also wrote about how NC’s DWI has created inefficiencies by stripping courtroom participants – judges, prosecutors and defense attorneys – of the ability to plea.

In this post, let me explain why I think the North Carolina General Assembly has created such a system.

I am told – but have not confirmed this fact – that North Carolina’s General Assembly has a comparatively few number of lawyers, and very few lawyers who regularly practice criminal law.

Even though I’m a lawyer, I do not believe a legislature should be filled with lawyers. Quite the contrary. However, when it comes to writing criminal laws, it would behoove a legislature to bring to the table people who understand the mechanics of the day-to-day practice of laws.

NC DWI laws are poorly constructed

That having been said, North Carolina’s laws are poorly constructed. They prevent pleas, I believe out of a misguided sense among legislators that pleas always benefit the defendant, and therefore are letting a DWI defendant get off with a lesser punishment.

It is certainly the case that a plea offer does involve a concession to a defendant. But that concession to the defendant also involves a concession by the defendant to the State, which is that the defendant gives up his right to a trial where he might be found not guilty.

Now legislators may be thinking: big deal, the defendant must be guilty, why else would he be charged. He should just plead guilty.

Let’s pause for a moment. Even if this were true – and it’s not, many defendants are actually not guilty, and many not-guilty individuals get convicted of crimes because this is an imperfect system – the Constitution does in fact govern the way we handle our criminal justice system in North Carolina. The founders had good reason to distrust the government, and to create protections – including the right to a jury trial – in criminal matters.

But here’s what legislators are really saying. They’re saying: we don’t trust prosecutors – the elected DAs and their assistant DAs – to make informed decisions about which cases to plea, and which should not be pled.

After all, a plea deal requires the agreement of both the prosecutor and the defendant. If the prosecutor believes the DWI is really egregious, or that the DWI defendant is unrepentant, the prosecutor can certainly refuse to offer a plea, and the case would then go to trial.

The mistrust also extends to judges, whom the legislature mistakenly believes are gentle on North Carolina offenders. This is not my experience.

However, preventing DWI pleas has the effect of raising every DWI to the same level, and does, in fact, make it difficult for judges to sometimes distinguish the people who deserve higher punishments from the ones who deserve some leniency.

After all, some people do in fact just make mistakes, whereas other people are offenders who have little remorse. By stripping judges and prosecutors of discretion, the legislature is effectively punishing the people who make mistakes as harshly as the ones who have little remorse.

In short, a plea is not a one-sided concession of leniency to a defendant. A plea is a concession by both sides. There will always be mistakes in a human system: a person who shouldn’t have been released early, is released early and commits another offense who hurts someone. It is tragic.

But constructing a NC DWI system around outliers – the tragic events – creates what we’ve got now: a hugely expensive and inefficient district court system that actually makes the outcomes worse for the State not just when it comes to DWIs, but also other kinds of misdemeanors.



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