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North Carolina’s Judicial Branch

North Carolina’s criminal justice system has three features – some would say, flaws – that make the practice of criminal defense law in this state particularly challenging. These features mean that people charged with crimes should seek out smart, aggressive lawyers who understand the structural problems with the system.

Let’s talk about one of them:

North Carolina features a weak, elected judiciary.

This is not meant to describe judges, who themselves are, for the most part, smart and conscientious. It’s meant to describe the overall power of the judiciary, which, since the founding of the state, was designed to be the weakest part of the three branches.

As anyone who has taken high school civics knows, governments – whether at the state or federal level – have three branches. North Carolina, too, has three branches. The executive branch, with the Governor at the helm. District Attorneys are part of the executive branch – although in North Carolina they serve a peculiar function.

The legislative branch – the North Carolina General Assembly – is the second branch. The judicial branch – with the North Carolina Supreme Court at the top and District Court at the lowest level – is the third branch.

North Carolina’s founding fathers created a state in which the General Assembly was the most powerful of the three branches. The founding fathers were naturally distrustful of a strong executive – e.g., King – and a strong, unelected judiciary. Consequently, they created a fairly weak judiciary and a weak executive. Reforms over the years have made the executive branch much stronger that it was at the State’s founding, but it is still a comparatively weak institution.

Almost as important is the fact that North Carolina elects its judges. In my view, this is a terrible way to choose judges. First, the election of judges means that judges must, naturally, think of the various political interests at stake when the rule on cases.

For instance, Mothers Against Drunk Driving (MADD) is a particularly powerful interest. Despite whether you think drunk driving is a good or bad thing – I think it’s, of course, bad – the rule of law and burdens of proof should matter much more than whether we catch every single drunk driver on the streets.

And yet, one could imagine judges being concerned about being re-elected if they were to run afoul of a special interest such as MADD.

Finally, the election of judges is almost never a good idea because, quite honestly, the voting public rarely has any idea either what makes for a good judge or whether the people they’re voting for as judges are truly qualified to fill that position.



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