10 Wake Forest L. Rev. Online 86

Holly Black*

I.  Introduction

Since 1919, North Carolina had treated its sixteen- and seventeen-year-old offenders as adults.[1]  These teenagers, who were considered juveniles in every other state in America, were sent through North Carolina’s adult criminal justice system for a variety of crimes.[2]  Their offenses went on criminal records. They faced difficulties continuing their education, finding gainful employment, and ultimately, reacclimating into society.[3]  On December 1, 2019, after one-hundred years of this misguided system, North Carolina finally raised its age of juvenile jurisdiction to eighteen.[4]

The Juvenile Justice Reinvestment Act (“JJRA”) allows sixteen- and seventeen-year-old juveniles to go through the juvenile justice system when accused of misdemeanors, low-level felonies, and other non-violent crimes.[5]  With this change comes a variety of benefits. North Carolina taxpayers save money, recidivism rates decrease, and the overall safety and wellbeing of juvenile delinquents increases significantly.[6]

However, the change also brings a variety of new challenges for the state of North Carolina.  Arguably, the largest of these challenges is fully funding the JJRA.  While the benefits of the JJRA are enormous, they can only be realized if the state is able to fully fund it. An influx of new sixteen- and seventeen-year-old offenders will enter the juvenile justice system throughout 2020.  The state will require additional funding in all areas to meet this new demand, but especially in courts, district attorney’s offices, Indigent Defense Services, and Youth Development Centers.  This additional funding must be in place before any of the aforementioned benefits can be realized.  While implementation of the JJRA is an investment in North Carolina’s youth, it is also quite literally a monetary investment in North Carolina’s juvenile justice system.

II.  North Carolina’s Raise the Age Act

A.     Origins of the Act

On December 1, 2019, North Carolina became the final state to “raise the age” of juvenile jurisdiction to eighteen.[7]  The JJRA was included within the 2017 state budget and was passed on June 19, 2017.[8]  The act makes several changes to the juvenile code, but most notably, it increases the age of juvenile court jurisdiction to include misdemeanors and non-violent felonies committed by sixteen- and seventeen-year-old juveniles.[9]

North Carolina has traditionally been a state that is “tougher” on juvenile crime. mIt has one of the lowest age limits in the nation for juvenile jurisdiction and as a result, allows for children as young as six years old to enter into the juvenile court system.[10]  Prior to passage of the JJRA, it also had the lowest age limit for superior court jurisdiction.[11]

With more and more states raising their juvenile court jurisdiction ages, North Carolina’s youth were at a significant disadvantage when compared to youth in other states.[12]  In September 2015, the North Carolina Commission on the Administration of Law and Justice (“NCCALJ”) convened, and each of the committee’s five branches[13] made independent recommendations to correct this disadvantage.  The first recommendation the committee made regarding juvenile justice was to “raise the juvenile age to eighteen for all crimes except violent felonies and traffic offenses.”[14]

 The committee noted that at the time, New York was the only other state to set the juvenile jurisdiction limit at sixteen.[15]  Additionally, if the age was raised, a “vast majority” of North Carolina’s teens would fall under juvenile jurisdiction, since teens mainly commit misdemeanors and non-violent felonies.[16]  Most importantly, the committee noted that raising the age would make North Carolina’s communities safer by decreasing recidivism,[17] and would increase the overall wellbeing of its juveniles by giving teen offenders an additional opportunity for “developmentally appropriate” justice.[18]  As an added benefit, implementing the JJRA would save a significant amount of money.[19]  With these reasons in mind, the committee published its final report in March of 2017 and recommended raising the juvenile age to eighteen.

These economic and safety benefits, as well as pressure from other states already passing their own “raise the age” legislation, pushed the North Carolina General Assembly to raise the juvenile jurisdiction age.[20]  In 2017, proposed legislation was gaining bipartisan support in the General Assembly and received 90 percent public support in both rural and urban areas.[21]  The bill was passed on June 19, 2017, and as a result the juvenile age in North Carolina increased to eighteen effective December 1, 2019.[22]

The JJRA allows juveniles ages sixteen and seventeen to remain in juvenile court if they have been accused of a misdemeanor or a non-violent felony.[23]  Since Class A-G felonies are considered violent felonies, juveniles who are accused of those crimes are automatically transferred to superior court.[24]  Certain Class H and I felony cases, however, can be considered non-violent felonies and can remain under juvenile court jurisdiction with judicial discretion.[25]

B.    Under the Act

As indicated by the term “raise the age,” the biggest change brought by the JJRA is that the juvenile court now has exclusive, original jurisdiction over all crimes and infractions allegedly committed by youths aged sixteen and seventeen.[26]

The JJRA has also changed the length of juvenile court jurisdiction and now allows jurisdiction to continue over any juvenile determined delinquent at age sixteen until the juvenile turns nineteen.[27]  Similarly, the juvenile court retains jurisdiction over seventeen-year-olds until they reach age twenty.[28]  The extension of juvenile court jurisdiction for these cases allows juveniles to be adjudicated and  receive dispositions up until the juvenile reaches age nineteen or twenty.[29]  This also allows for any disposition to be prolonged for the same amount of time.  This provision, however, does not allow an offense committed at age eighteen or older to be processed in juvenile court.[30]

Because the JJRA increased juvenile court jurisdiction to age eighteen, the Act also brings certain offenses that require the perpetrator to be at least sixteen years old under juvenile court jurisdiction.[31]  This change was made in an effort to rehabilitate youth while they are juveniles and before criminal activity becomes more aggressive and leads to more serious consequences.[32]  With this focus in mind, the JJRA also targets juvenile gang activity and requires intake counselors to conduct “Gang Assessments” on juveniles age twelve and older as part of evaluating complaints.[33]

The JJRA also expands protections for victims and creates new victims’ rights during the juvenile court intake process.  Previously, if a victim had not signed the complaint, he or she had no right to request a review of the petition.[34]  However, the JJRA now requires that if a juvenile court counselor decides not to file a petition, immediate notice of the decision must be provided to the both the complainant and the alleged victim.[35]  If a review is requested, both the complainant and the alleged victim are included in the prosecutor’s conferences regarding the review.[36]

The JJRA also brings several indirect changes, including the expansion of parental involvement in cases involving sixteen- and seventeen-year-olds[37] and the expansion of the “Once an Adult, Always an Adult” clause.[38]  In the two years between the JJRA’s passage in 2017 and its implementation in 2019, sixteen- and seventeen-year-olds were still tried and convicted in superior court for any and all criminal offenses.  If a sixteen- or seventeen-year-old had been convicted of a misdemeanor or non-violent felony,[39] but the court proceedings began before December 1, 2019, they still would have been tried and convicted in superior court.[40]  Therefore, the teen would have a superior court conviction on his or her record, and by default, they would be included in the class of “Once an Adult, Always an Adult” juveniles who lack juvenile court jurisdiction.[41]

C.    Implementing the Act

With all the changes between the old and new statutory framework, implementation of the JJRA requires specific, planned action.  The North Carolina General Assembly required the creation of a Juvenile Jurisdiction Advisory Committee (“JJAC”) for this purpose.[42]  This twenty-one-member committee[43] is responsible for planning the changes needed to fully implement the JJRA.[44]  The committee submitted a required report to the General Assembly on March 1, 2018 detailing its specific plan and cost estimates for raising the age of juvenile jurisdiction to eighteen.[45]  It also reported on specific recommendations concerning juvenile jurisdiction extending to certain delinquency matters and proceedings, such as habitual misdemeanors.[46]

To prepare for the December 1, 2019 implementation date, Juvenile Justice was focused on four main objectives: hiring and training incoming and current staff members, increasing capacity of youth detention centers and Youth Development Centers (“YDCs”), facilitating secure custody transportation, and equipping “decision makers” with “up-to-date data during implementation.”[47]

In response to the first objective, Juvenile Justice Staff and North Carolina Department of Public Safety (“DPS”) Human Resources worked jointly to create positions and hire 244 new staff members around the state.[48]  Juvenile Justice also partnered with the UNC School of Government and other juvenile-focused agencies to train at least 5,000 “stakeholders from various disciplines.”[49]

The second and third objectives both focus on expansion of youth facilities. Juvenile Justice is working on increasing youth detention facilities’ bed capacities by two hundred to three hundred beds.[50]  It is also working on opening a sixty-bed YDC in Rockingham County and a restorative justice pilot program at the Edgecombe YDC.[51]

Juvenile Justice is also changing its transportation system into separate facility-based and court-services based transportation teams.[52]  This will help maximize the effectiveness of existing court staff as well as provide added support to youth detention center staff, YDC staff, and court counselors.[53]

Finally, Juvenile Justice is also working on new ways to analyze and distribute data so it can “equip decision makers with up-to-date data during implementation.”[54]  From an implementation standpoint, this is arguably one of the most important investments in the JJRA.  Since the aim of juvenile justice is rehabilitation, courts, attorneys, and detention facilities require a wealth of background information on a juvenile in order to make decisions that facilitate rehabilitation.[55]  Therefore, the JJAC is investing in a variety of ways to better equip decision makers with the necessary information.

One new method of data analytics is the Juvenile Justice Service Directory that provides court counselors with an inventory of program and service options for referrals.[56]  The court system is also updating its existing court database system, North Carolina Juvenile Online Information Network (“NC-JOIN”), to allow staff to better track a juvenile’s diversion or post-disposition progress after being placed in a program or facility.[57]  The database also contains a program for Globalized Assessment of Individualized Needs (“GAIN”) that allows court counselors to screen juveniles for underlying problems such as mental health or substance abuse issues.[58]  The JJAC is also investing in visual analytics to analyze recidivism outcomes and business analytics that allows data from a variety of sources and methods to be merged into one analysis.[59]  Not only do these analytics programs allow for timely and proper adjudication and disposition of current delinquent juveniles, but they also provide vital information for further juvenile justice reforms in North Carolina.[60]

In addition to the changes recommended by the JJRC, the North Carolina General Assembly has also been allocating funding for certain areas most in need of resources to implement the JJRA.  This funding is allocated in the yearly appropriations act, and will be discussed further in Part IV of this Comment.

D.    The Benefits of the Act

The benefits of implementing the JJRA are immense.  Raising the age of juvenile jurisdiction helps juveniles receive “developmentally tailored justice” that holds youth accountable while also emphasizing rehabilitation and addressing underlying issues.[61]  Recidivism rates drop[62] and without a record of adult convictions, juveniles can continue their education with fewer obstacles and eventually join the workforce.[63]  Our communities are safer, our juveniles are safer, and the state of North Carolina saves a considerable amount of money.[64]

All of these benefits stem from the concept that juveniles must be treated with a special form of justice.  Children and teens are no longer seen as “mini adults” as they were in the past.  Likewise, the juvenile justice system is not seen as a scaled down version of superior court.  One of the major successes of the JJRA is that it allows sixteen- and seventeen-year-olds to have access to the help and resources they need during one of the most vulnerable periods of their lives.  When a teen is nearing adulthood, he has more power than a younger child.[65]  And yet, that teen’s brain still has not fully formed.[66]  Therefore, including teens in the juvenile justice system rather than automatically sending them to superior court allows for the state to intervene and correct teens’ behavior before they turn eighteen.  This intervention allows the state the opportunity to prevent a teen from  later committing offenses that are more severe, both in terms of sentencing and future consequences. 

Implementing the JJRA also has significant economic benefits for the state of North Carolina.  Over time, the state will save money by rehabilitating youth, rather than incarcerating them for years at a time in adult detention facilities.[67]  Processing juvenile offenders through the juvenile justice system has proven to increase rehabilitation and decrease recidivism.[68]  The state has also projected savings upwards of $7.1 million due to this drop in recidivism.[69]  Since North Carolina is the last state to raise the age of juvenile jurisdiction, it can also look to other states’ success in their own “raise the age” legislation.  Implementing the JJRA is an investment in North Carolina’s juveniles.  However, it is also an investment in itself. In order to receive the aforementioned benefits, both monetary and societal, North Carolina will have to fully fund the JJRA.  This funding will ensure an effective implementation period and will later lead to a variety of benefits for the state and its people.

III.  The Raise the Age Act Will Not Be Fully Effective Without Adequate Funding

The JJRA makes several major changes to North Carolina’s juvenile justice system.  Each requires significant funding to be fully implemented.  Developmentally tailored justice is a layered concept, so it takes proper implementation of each part to make the whole fully functional.[70]  The aim of juvenile justice is rehabilitation, and that cannot be achieved unless a juvenile is taken through the entire juvenile justice system, from petition to post-disposition, in a comprehensive, developmentally appropriate manner.[71]  This view has been supported by a variety of groups, including the NCCALJ that created the original recommendations for creating and implementing the JJRA.[72]

A.    Areas that Require Additional Funding

Because of JJRA implementation, more than 8,000 juveniles ages sixteen and seventeen are now expected to be served under juvenile jurisdiction in 2020.[73]  Each of these juveniles will require contact with a court counselor, and many will continue through the adjudication and disposition processes, requiring the work of judges, prosecutors, and defense counsel.  Some juveniles may even be committed to a YDC and require additional treatment and rehabilitation.  While all areas of the juvenile justice system must be adequately funded for the JJRA to be fully implemented, below are the facets of the justice system most in need of additional staff and monetary resources.

1.     The North Carolina Court System

North Carolina’s court system is involved throughout the entire juvenile justice process.  Even if a case is diverted, it must go through a court counselor first for screening and intake.[74]  Through each step of the process, the juvenile court system requires skilled personnel, advanced database technology, and appropriate transportation to move juveniles through the process in a fair and efficient manner.  Additionally, the cost of merely operating a courthouse has increased since the COVID-19 outbreak.[75]  Therefore, these extra costs place more demands on North Carolina’s court system and make allocated funding even tighter for court personnel. 

Even before the JJRA was implemented, several counties in North Carolina faced staff resource deficits and overbearing workloads.[76]  These staff deficiencies, exacerbated by transportation systems and database technology not intended to handle the demands of raising the age, make these counties ill-equipped to handle JJRA implementation.  Therefore, these counties require full funding from current JJRA appropriations to even begin to handle the 8,000 juveniles expected to come through the system in 2020.  Funding would be allocated towards not only hiring new court staff, but also implementing new technology and transportation changes.[77]  However, allotted appropriations for the 2019-2020 and 2020-2021 fiscal years only begin to address the issue by targeting only the neediest counties.[78]

Between allotted funds for the 2019-2020 and 2020-2021 fiscal years, the North Carolina General Assembly has appropriated over $1.8 million for the creation of seven new deputy clerk positions and seven new district court judge positions.[79]  Even with this substantial investment in North Carolina’s juvenile courts, there will still be deficiencies in several counties’ court systems.  The JJRC recommends additional funding of over $13 million to correct existing deficiencies in the court systems.[80]  This recommended investment is intended to prepare courts for JJRA implementation, and it does not account for any additional funds that might be needed if  the actual number of juveniles entering the system exceeds the anticipated number.

Nevertheless, the General Assembly is able to adequately address one of the court system’s most dire needs in implementing the JJRA – a lack of court counselors.[81]  Court counselors are essential for proper implementation of the JJRA since they manage each case and help determine the best course of action for the rehabilitation of each juvenile.

2.     Prosecutors

With the projected increase of more than 8,000 juveniles entering into the juvenile system in 2020,[82] the number of prosecutors in the juvenile system must also increase.[83]  The influx of juveniles under the JJRA will require the state to create thirty-five new positions and hire new prosecutors in seventeen of North Carolina’s forty-three prosecutorial districts.[84]  Overall, the JJRC recommends creating twenty-five new assistant district attorney positions.[85]  However, even with existing funding measures, this must occur gradually over time.  Even with the current rise in appropriated funds, North Carolina’s district attorney’s offices will remain understaffed until 2024 at the earliest.[86]  With that in mind, it is essential that district attorney’s offices receive their allotted funding amounts to even begin to correct for these assistant district attorney shortages.

3.     Juvenile Indigent Defense System

Juveniles in North Carolina are included in a group of only eleven states that presume juveniles are automatically eligible for a court-appointed attorney based on their status as juveniles.[87]  In fact, North Carolina is on the more progressive end of this spectrum in allowing all juveniles, regardless of parents’ ability to pay, access to a court-appointed attorney.[88]  While this is certainly a benefit[89] for North Carolina’s youth, especially those who could not afford to hire counsel, it is not an all-encompassing solution.

Since all youth in North Carolina are presumed indigent, many rely on North Carolina’s Indigent Defense Services (“IDS”) for counsel.  This, however, creates a series of burdens not only for IDS but for the juveniles being appointed IDS counsel.  As the number of juvenile cases rise in the coming years, IDS will have to incentivize more private attorneys to handle their cases.  Additionally, while juveniles are guaranteed counsel, that does not always mean juveniles will receive “zealous advocates” for their cases.[90]

The North Carolina Office of the Juvenile Defender (“OJD”) is understaffed and underfunded.[91]  One way the North Carolina General Assembly is attempting to remedy this is by creating a new position “to provide training and consulting services to private assigned counsel attorneys in the State assigned to juvenile justice cases.”[92]  While IDS was granted an additional $87,681 of recurring funds in the 2019-2020 fiscal year,[93] this amount hardly covers the requirement  to pay several privately contracted attorneys to handle IDS’s cases at a rate comparable to a North Carolina firm.

4.     Youth Development Centers (“YDCs”)

One of the main differences between the adult and juvenile criminal systems is the presence of YDCs.  These centers are unmatched in their rehabilitative potential for certain juveniles.  Upon being admitted to a YDC, each juvenile undergoes a “screening and assessment of developmental, educational, medical, neurocognitive, mental health, psychosocial and relationship strengths and needs.”[94]  Then, the juvenile receives an individualized service plan to meet his or her needs.[95]  While in the YDC, each juvenile continues his or her education through standard public school courses taught by teachers licensed by the N.C. Department of Public Instruction.[96]  Each juvenile is also assigned a Licensed Mental Health Clinician and receives individual or group psychotherapy on a weekly basis.[97]

Since YDCs provide many rehabilitative services to juveniles as part of a comprehensive plan, they are fairly expensive to operate.[98]  In the 2017-2018 fiscal year, North Carolina spent $26,997,644 on its four YDC facilities.[99]  The state is also planning on opening Rockingham YDC, a sixty-bed facility located in Reidsville, N.C.[100]  While this facility will increase the state’s YDC capacity, it will also increase the amount of money invested in the state’s YDC system.[101]

However, even with a capacity to house 248 juveniles at a time, North Carolina continues to serve more juveniles in its YDCs than it has room for.  In 2018, even before the implementation of the JJRA, North Carolina was serving 361 juveniles among its four facilities.[102]  In 2016 the number of juveniles committed to YDCs decreased by 48 percent,[103] but the majority of the YDC population at the time was age fifteen or sixteen.[104]  With a trend of committing older juveniles to YDCs, the already large YDC population will likely remain consistent and potentially grow with the estimated influx of 8,000 sixteen- and seventeen-year-old offenders.[105]

B.    Potential Solutions to the Funding Challenges

The North Carolina General Assembly has addressed many of the above funding challenges through its 2019-2020 fiscal year appropriations.  However, in some instances, the allotted funding is still not enough.  In order to fully fund the JJRA and address staff and resource deficiencies, North Carolina will have to decrease its reliance on juvenile incarceration, increase its use of diversion plans for minor offenses, and change the organization and payment structure of its indigent defense system.  Changes like these have already worked in other states and they will allow North Carolina to save money while better serving its juvenile population.[106]  Additionally, broad changes involving police divestment could ease these financial burdens in the coming years and allow for additional investment into community programs. 

1.     Reduce Juvenile Incarceration Rates

Decreasing the North Carolina Juvenile Justice system’s reliance on youth incarceration not only brings substantial benefits for the state, but for juveniles as well.  Holding juveniles in detention facilities has been proven to increase criminal behavior in juveniles later in life[107] and now, it also poses serious COVID-19 related health risks.[108]  Therefore, the use of these facilities should be limited to only the most severe cases.

In North Carolina, juveniles are often placed in detention centers for non-violent offenses, such as truancy and low-level property offenses.[109]  Since these juveniles pose a relatively low public safety risk, they would be better served through community based, rehabilitative programs.[110]  Utilizing these programs would not only help meet the needs of the juvenile, but it would also save the state a significant amount of money.[111]

Other states, such as Nebraska, have successfully moved from a reliance on juvenile incarceration and towards the use of rehabilitative community programs.  The Nebraska State Legislature passed a bill that required juveniles to be placed in the “least restrictive situation that their offense would allow.”[112]  For many non-violent offenses this meant keeping juveniles at home and allowing them access to therapy or drug rehabilitation services as “an alternative to incarceration.”[113]  The changes were so successful that across the state, fewer than ten low-risk youth are detained per month.[114]

The North Carolina General Assembly has already paved the way for this investment by passing two Session Laws[115] that allowed $75,000 in additional funding available for community programs in the 2004-2005 fiscal year.  Since then, these programs have proven to be efficient[116] and cost-effective.[117]  Most importantly, they led to noticeable decreases in recidivism rates.[118]

Once more community programs are in place, the state could begin to also use community programs more frequently as an option for disposition, rather than committing juveniles to YDCs.  The use of residential or community programs in place of YDCs for less severe adjudications saves the state $88,880 to $104,069[119] per juvenile, respectively.[120]  Similar to the benefits seen from decreasing juvenile incarceration rates, reducing the use of YDCs for low level offenders would also decrease recidivism and deter juveniles from committing offenses.[121]

2.     Reduce the Number of Juveniles Referred to Juvenile Court

The next step is to reduce the number of juveniles referred to juvenile court for status offenses and eventually, all low-level offenses. 2018 was the lowest year on record for juvenile crime in North Carolina.[122]  A majority of that decrease resulted from a drop in delinquent complaints.[123]  The number of status complaints, however, has remained comparatively stagnant.[124]  In fact, from 2015 to 2017 the number of status complaints actually increased.[125]  North Carolina’s existing juvenile justice methods help reduce the amount of delinquent complaints, but they do not have the same success rate with decreasing status complaints.

Since the current system does not adequately address status offenses, these should be handled outside the system.  The North Carolina court system should begin a policy of considering and exhausting all diversion options for status complaints before filing a petition. Status offenses are the least severe of all juvenile offenses[126], so status offending juveniles can generally be diverted without posing any risk to society.  Today’s mental health screening tools can help identify youth with immediate needs and determine if diversion is appropriate in each case.[127]

Other states have seen success in similar juvenile justice reforms. Connecticut saw an overall decrease in expenditures after implementing its “raise the age” laws along with an “aggressive pretrial diversion program.”[128]  Kansas has reclassified status offenses and now, status based offenders cannot be incarcerated unless a judge finds a compelling reason to do so.[129]  The Kansas state legislature hopes to extend this law so juveniles who have committed status offenses or misdemeanors are also ineligible for YDC commitment.

3.     Change the Organization and Payment Structure of North Carolina’s Indigent Defense Services

Currently, North Carolina’s juvenile defense system is county-based.[130]  Not only does it lack the uniformity of a state-wide system, but it also lacks efficiency.  While there are a variety of options for juvenile defense, most counties only have one or two options available.[131]  Moreover, there are counties that do not have access to an assistant public defender for juvenile cases.[132]  Therefore, most juveniles turn to IDS and its Office of Juvenile Defense for representation.

The county-based structure of IDS contributes to its lack of uniformity and its inefficiency.  First, IDS does not offer the same defense services in every county.[133]  This leads to a difference in representation between counties and an unpredictability of cost in each case.  Ultimately, this system leads to a high turnover of attorneys, causing the state to spend more time and money in training new IDS attorneys.

Additionally, the IDS hourly pay system causes differences in the quality of appointed counsel.  The current low hourly pay grade leads to lower quality representation, an emphasis on quantity of cases rather than quality, and over-complicating cases to bill more hours.[134]  While the optimal solution would be to increase IDS’s budget for attorney compensation, until that can occur, IDS should move from an hourly pay system to a flat fee or contract system.

Flat fee compensation has been proven to reduce administrative costs, allow greater participation from the private bar, and allow greater flexibility to private attorneys who may not want to take on many indigent cases.[135]  Similarly, “carefully planned and tailored contracts” can lead to IDS recruiting qualified attorneys with the proper training and skillset to represent juveniles.[136]  These contracts would also provide workload caps and other limitations to keep attorneys from over-working a case to a level that is outside the paygrade of the contract.

While the solution of restructuring North Carolina’s IDS goes mainly towards improving the quality of representation juveniles receive, it also helps maximize the efficiency and quality of IDS as a whole.  This solution, therefore, helps juveniles while also maximizing the effectiveness of the funds allocated to IDS in fiscal years 2019-2020 and 2020-2021.[137]  While IDS will remain understaffed and underfunded with these allocations, changing the organization and payment structure will allow IDS to be more effective under current funding constraints. 

4.     Embrace an “Invest-Divest” Strategy for Police Reform

Finally, one overarching solution to many of North Carolina’s Juvenile Justice System’s funding concerns is police divestment. Supported by groups such as the Movement for Black Lives and the ACLU, the “invest-divest” strategy for police reform focuses on reallocating funding earmarked for policing and reinvesting it into long-term safety strategies.[138]  In fiscal year 2020, the state of North Carolina appropriated approximately $3 billion to law enforcement activities.[139]  A portion of this large sum could easily be reallocated for community programs and eventually, resources for juvenile court counselors, youth mental health, and education specialists.[140]

A key piece of this divestment also comes from within the juvenile justice system.  As the role of law enforcement changes in America’s criminal justice system, it will change in the juvenile system as well. Funding allocated for policing of juveniles in schools and YDCs can also be reallocated to community programs.  This form of direct reallocation has already proven successful in Kansas through a “lockbox mechanism” used to transfer unused funds directly from YDCs to juvenile community programs.[141]

IV.  Conclusion

Implementing the JJRA creates tremendous benefits for North Carolina.  It keeps our communities safer by decreasing juvenile delinquency rates and recidivism rates.  It also increases the overall wellbeing and safety of juvenile offenders.  Eventually, the JJRA will  save taxpayers money.  However, to see any of these benefits, North Carolina must fully fund the Act.

The reality is that the General Assembly has a finite amount of funding to allocate. Some essential programs, like district attorney’s offices and IDS, will remain understaffed and overburdened, having to do the best they can with the funds they have been allocated.  However, through solutions like decreasing North Carolina’s reliance on juvenile incarceration, increasing the use of diversion plans and community programs, changing the organization and payment structure of IDS, and eventually embracing a divest-invest strategy for policing, North Carolina can reduce burdens on key juvenile justice resources. Over time, the juvenile crime rate will decrease, and these burdens will become lighter.  For now, though, these solutions help maximize North Carolina’s investment in both the JJRA and its future.


*J.D. Candidate 2021, Wake Forest University School of Law; Kinesiology and Spanish, B.S., B.A. 2018, The University of Tennessee, Knoxville. Thank you to the Wake Forest Law Review Board and Staff for all their time and effort, especially during a global pandemic. I would also like to thank Mathew Wright, for his encouragement, as well as my family, Scott, Kristi, and Rhiannon for their unwavering support throughout law school. And finally, a special thank you to the many individuals fighting for juvenile justice and police reform efforts.

      [1].   Jacquelyn Greene, Univ. N.C. Sch. Gov’t, Juvenile Justice Reinvestment Act Implementation Guide 1 (2019).

       [2].   See Anne Blythe, NC Becomes Last State to ‘Raise the Age’ of Teens in Court, News & Observer (June 20, 2017 5:27 PM), https://www.newsobserver.com/news/politics-government/article157219234.html; see also Melissa Boughton, N.C.’s New “Raise the Age” Law Appears to be Off to a Promising Start, N.C. Pol’y Watch (Jan. 16, 2020), http://www.ncpolicywatch.com/2020/01/16/ncs-new-raise-the-age-law-appears-to-be-off-to-a-promising-start/.

      [3].   See Blythe, supra  note 2; see also Boughton, supra note 2; Raise the Age – NC, N.C. Dep’t Pub. Safety, https://www.ncdps.gov/our-organization/juvenile-justice/key-initiatives/raise-age-nc (last visited Aug. 18, 2020).

      [4].   Blythe, supra note 2.

      [5].   Id.

      [6].   Raise the Age – NC, supra note 3.

      [7].   Blythe, supra note 2.

      [8].   2017-57 N.C. Sess. Laws 309.

      [9].   LaToya Powell, Univ. N.C. Sch. Gov’t, 2017 Juvenile Justice Reinvestment Act 1 (2017).

     [10].   The common law default for minimum juvenile court jurisdiction age is seven. See Nat’l Rsch. Council, Reforming Juvenile Justice: A Developmental Approach 52 (Richard J. Bonnie et al. eds., 2013).

     [11].   Lauren Horsch, Raise-the-Age Bill Gains Steam in One of the Last States to Prosecute 16-Year-Olds as Adults, News & Observer (Mar. 8, 2017, 6:20 PM), https://www.newsobserver.com/news/politics-government/state-politics/article137281928.htmlhttps://www.newsobserver.com/news/politics-government/state-politics/article137281928.html.

     [12].   Before JJRA implementation, teens in North Carolina faced much stricter consequences for actions than teens in other states. For example, when comparing North Carolina with Massachusetts, a teen in North Carolina could commit exactly the same crime as a Massachusetts teen his age, but face significantly worse consequences. In Massachusetts, a sixteen-year-old could commit a misdemeanor, or even a non-violent felony, and still enter into the juvenile justice system. The North Carolina teen, however, would automatically enter the adult system and face criminal charges. If the Massachusetts teen was adjudicated delinquent, his record would be sealed, and it would not affect his ability to apply for higher education funding. Unlike the Massachusetts teen, if the North Carolina teen was found guilty, he would not only face a punishment for the charge, but also a criminal record. That record would later limit his choices in life and possibly preclude him from joining the military and applying for funding for higher education.           See id.; Shira Schoenberg, Teen Arrests Drop Steeply in Massachusetts After Criminal Justice Reform, Mass Live (Dec. 31, 2019), https://www.masslive.com/news/2019/12/teen-arrests-drop-steeply-in-massachusetts-after-criminal-justice-reform.html.

     [13].   Those five branches were: (1) Civil Justice, (2) Criminal Investigation and Adjudication, (3) Legal Professionalism, (4) Public Trust and Confidence, and (5) Technology. See N.C. Comm’n Admin. Law & Just., Final Report: Recommendations for Strengthening the Unified Court System of North Carolina 44 (2017),  https://www.nccourts.gov/assets/documents/publications/nccalj_final_report.pdf.

     [14].   Id.

     [15].   New York raised its juvenile cut-off age to sixteen in 2018 and then to seventeen in 2019. See id., app. a, at 7; see also Governor Cuomo Signs Legislation Raising the Age of Criminal Responsibility to 18-Year-Olds in New York, N.Y. Governor’s Press Off. (Apr. 10, 2017) https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-raising-age-criminal-responsibility-18-years-old-new-york.

     [16].   Specifically in 2014, out of 5,689 sixteen- and seventeen-year-olds convicted in North Carolina, only 187 were convicted of violent felonies. Thus, only 3.3 percent of North Carolina’s teens were convicted of violent felonies. That left 16.3 percent of these youth convicted of non-violent felonies and 80.4 percent convicted of misdemeanors. See N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 7.

     [17].   Processing sixteen- and seventeen-year-old juvenile offenders in the juvenile system allows for more supervision and a 7.5 percent decrease in recidivism. Id., app. a, at 8.

     [18].   Stephanie Tabashneck, “Raise the Age” Legislation: Developmentally Tailored Justice,  Crim. Just., Winter 2018, at 13.

     [19].   In fact, in 2009, the Governor’s Crime Commission Juvenile Age Study estimated raising the age to eighteen would result in a net benefit of $7.1 million for the State of North Carolina. See Governor’s Crime Comm’n, Juvenile Age Study: A Study of the Impact of Expanding the Jurisdiction of the Department of Juvenile Justice and Delinquency Prevention 4–6 (2009); see also N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 8–12.

     [20].   Governor’s Crime Comm’n, supra note 19, at 12–13.

     [21].   Horsch, supra note 11.

     [22].   Blythe, supra note 2.

     [23].   A non-violent felony is defined as any felony excluding: Class A through G felonies; felonies that include assault as an essential element of the offense; felonies that require registration pursuant to Article 27A of Chapter 14 of the General Statutes; certain sex-related or stalking offenses; certain offenses involving methamphetamines, heroin, or cocaine; certain offenses involving hate crimes; and certain offenses involving commercial vehicles and impaired driving. See N.C. Gen. Stat. §15A-145.4 (2019); N.C. Sent’g & Pol’y Comm’n, Classification of Sample Offenses (2017), https://www.nccourts.gov/assets/documents/publications/Sample-list-2017.pdf (listing sample offenses within each class).

     [24].   Before the transfer, the juvenile must either receive (1) notice and a finding by the court that a bill of indictment has been returned that charges the commission of an offense that would be a class A-G felony if it had been committed by an adult, or (2) notice, hearing, and a finding of probable cause that the juvenile committed an act that would be a class A-G felony if committed by an adult. 2017-57 N.C. Sess. Laws 311.

     [25].   If the judge decides to transfer the case, the juvenile still receives notice, he is still given a hearing, and the court must find probable cause before transfer. Additionally, prosecutors and juvenile’s attorney can each motion to transfer a juvenile’s case to superior court. If a motion is denied or no motion is made, the case remains in juvenile court. Id.

     [26].   Although sixteen- and seventeen-year-olds who allegedly commit class A-G felonies are eventually tried in superior court, their cases must still originate in juvenile court and later be transferred to superior court. Additionally, this jurisdiction excludes motor vehicle law violations under Chapter 20 of the North Carolina General Statutes. Greene, supra note 1, at 6; 2017-57 N.C. Sess. Laws 309–311.

     [27].   N.C. Gen. Stat. § 7B-1601(b1); Greene, supra note 1, at 11.

     [28].   Greene, supra note 1, at 11.

     [29].   The extension of the timeline for disposition is crucial because the consequences of the juvenile disposition are far less severe than a guilty verdict in superior court. In juvenile court, a delinquency adjudication does not rise to the level of a conviction and it is not public record. It also does not cause the juvenile to forfeit any citizenship rights or future citizenship rights to be gained at age eighteen, such as the right to vote. See N.C. Jud. Branch, Juvenile Delinquency: General Information, https://www.nccourts.gov/help-topics/family-and-children/juvenile-delinquency (last visited Aug. 18, 2020) (“In order to protect the privacy of children who are involved in these proceedings, juvenile court records may be accessed only by authorized persons, such as the juvenile, the juvenile’s parent or guardian, the juvenile’s attorney, prosecutors, juvenile court counselors, and some probation officers. Public disclosure of juvenile records is prohibited without a court order. . . . An adjudication of delinquency in juvenile court is not a conviction of a crime nor does it cause the juvenile to forfeit any citizenship rights.”).

     [30].   Because of this, an eighteen- or nineteen-year-old could have simultaneous active cases in juvenile and superior court. N.C. Gen. Stat. § 7B-1601(b1) (2019); Greene supra note 1, at 11–12.

     [31].   These offenses include certain offenses associated with wearing of masks and hoods; solicitation and intimidation, punishment, or retaliation for gang withdrawal; larceny by servants and other employees; embezzlement of property received by virtue of office or employment; incest; taking indecent liberties with children; and solicitation of child by computer or certain other electronic devises to commit an unlawful sex act. N.C. Gen. Stat. § 7B-1501(7)b (2019); Greene, supra note 1, at 81–82.

     [32].   Greene, supra note 1, at 33.

     [33].   Id.

      [34].  Id. at  29.

     [35].   Id.

      [36].  Id. at 30.

     [37].   The juvenile system requires the juvenile’s parent or legal guardian to be present at all court dates and meetings associated with the case. In some instances, a parent or guardian can even be found in contempt of court for failing to appear at their child’s court date. Therefore, expanding juvenile jurisdiction also expands the amount of parental involvement in the system. Jason Langberg & Patricia Robinson, A Guide to Juvenile Court for Youth and Parents in North Carolina 9 (Youth Justice N.C., 2014), https://www.dconc.gov/home/showdocument?id=11955.

     [38].   This section requires the state to prosecute a juvenile as an adult for any criminal offense if the juvenile has previously been transferred to and convicted in superior court or has previously been convicted in either district or superior court for a felony or a misdemeanor. This includes a violation of the motor vehicle laws under State law. Greene, supra note 1, at 8–9, 29; see also 2017-57 N.C. Sess. Laws 310.

     [39].   These acts are now covered under juvenile jurisdiction. Greene, supra note 1, at 6.

     [40].   Id. at 1.

     [41].   Additionally, since the JJRA excludes all motor vehicle offenses from juvenile court jurisdiction, any juvenile who commits a felony motor vehicle offense or a misdemeanor motor vehicle offense involving impaired driving will continue to be included in the grouping of “Once an Adult, Always an Adult” juveniles. Id. at 8–9.

     [42].   2017-57 N.C. Sess. Laws 323.

     [43].   The session laws provide a complete list of all board membership positions. Id. at 323–24. See also Juvenile Jurisdiction Advisory Committee, N.C. Dep’t Pub. Safety, https://www.ncdps.gov/our-organization/juvenile-justice/key-initiatives/raise-age-nc/juvenile-jurisdiction-advisory-committee (last visited Aug. 18, 2020) (providing a list of current board members).

     [44].   2017-57 N.C. Sess. Laws 323–24.

     [45].   The committee also considered how those costs would change if implementation was staggered based on age, but ultimately, that method of implementation was not used. Id. at 324–25.

     [46].   Because this committee plays such an influential role in the implementation of the JJRA, it will continue to submit updated progress reports every year on January 15 until the year 2023. Id.

     [47].   Juv. Jurisdiction Advisory Comm., Juvenile Age Interim Report 10 (2020).

     [48].   Id.

     [49].   Id.

     [50].   As of January 2020, it has opened forty-three. Id.

     [51].   Id.

     [52].   Id.

     [53].   Id. at 15.

     [54].   Id. at 10.

     [55].   Id. at 11.

     [56].   Id. at 18–19.

     [57].   The use of data and tracking systems is also a useful tool for tracking juvenile offenders who have been placed in home confinement due to COVID-19 safety concerns. Data/Statistics/Reports, N.C. Dep’t Pub. Safety https://www.ncdps.gov/juvenile-justice/data-statistics-reports (last visited Aug. 18, 2020) (“[T]he network is a web-based system that allows staff at various points in the state’s juvenile justice system to track the progress and placement of youth being served by various programs and facilities.”).

     [58].   Screening and Assessment, N.C. Dep’t Pub. Safety https://www.ncdps.gov/juvenile-justice/juvenile-court-services/reclaiming-futures-nc/resources-for-local-sites/screening-and-assessment (last visited Aug. 18, 2020).

     [59].   Juv. Jurisdiction Advisory Comm., supra note 47, at 19.

     [60].   Id.

     [61].   See generally Tabashneck, supra note 18, at 13 (explaining a variety of reasons why the juvenile justice system processes juveniles in a developmentally appropriate manner).

     [62].   N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 8.

     [63].   Id., app. a, at 4–5.

     [64].   Id., app. a, at 10–11.

     [65].   Tabashneck, supra note 18, at 13.

     [66].   Id. at 13, 16.

     [67].   Juveniles housed in adult detention facilities require housing in supermax facilities that cost about $100,000 per year. See N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 15.

     [68].   See id., app. a, at 11 (“Much of the estimated cost savings would result from reduced recidivism, which ‘eliminates future costs associated with youth “graduating” to the adult criminal system, and increased lifetime earnings for youth who will not have the burden of a criminal record.’”).

     [69].   A 2009 study projected net benefit of $7.1 million dollars. Later, a 2011 study projected benefits of $52.3 million. Therefore, savings could be projected to be $7.1 million or more. See id.

     [70].   See Tabashneck, supra note 18, at 13, 18 (discussing the various parts that contribute to a functional juvenile system).

     [71].   Id. at 13.

     [72].   N.C. Comm’n Admin. Law & Just., supra note 13, app. d, at 43–45.

     [73].   Id., app. a., at 11.

     [74].   Langberg & Robinson, supra note 37, at 1, 7.

     [75].   John Hinton, Forsyth County Hall of Justice Will Undergo a Deep Cleaning This Weekend, a County Official Says, Winston-Salem J. (Apr. 24, 2020), https://journalnow.com/news/local/forsyth-county-hall-of-justice-will-undergo-a-deep-cleaning-this-weekend-a-county-official/article_98c4f954-6e60-5522-8eb4-958f75ec2e73.html (noting that it costs around $9,000 to deep clean a courthouse).

     [76].   Juv. Jurisdiction Advisory Comm., supra note 47, at 7.

     [77].   See supra Subpart II.C (providing more information on these technology and transportation changes).

     [78].               See Act of Oct. 14, 2019, § 3(a), 2019-229 N.C. Sess. Laws 7 (noting seven deputy clerk positions will be created and they will specifically be assigned to Alamance, Burke, Davidson, Johnston, McDowell, Randolph, and Yadkin counties).

     [79].   This figure comes from adding the 2019-2020 and 2020-2021 recurring and nonrecurring funds. Id.

     [80].   Juv. Jurisdiction Advisory Comm., supra note 47, at 1.

     [81].   In the most recent appropriations bill, the General Assembly allotted over $13 million for the creation of ninety-seven court counselor positions throughout the 2019-2020 fiscal year. 2019-229 N.C. Sess. Laws 9.

     [82].   Juv. Jurisdiction Advisory Comm., supra note 47, at 10–11.

     [83].   Since the same number of prosecutors are still needed elsewhere in the court system, district attorney’s offices cannot simply move prosecutors from one area prosecution over to the juvenile courts system. Therefore, new positions must be created to handle the increased juvenile caseload.

     [84].   Juv. Jurisdiction Advisory Comm., supra note 47, at 8–9.

     [85].   These new positions will be gradually created as follows: nine in 2019, seven in 2020, eight in 2021, and one in 2023. Id. at 7.

     [86].   Based on current projection data, the JJRC recommends creating thirty-five new assistant district attorney positions. However, the North Carolina General Assembly only approved funding measures to create twenty-five new positions between 2019 and 2023. Therefore, there will still be a need for ten additional assistant district attorneys even after the year 2023. Id. at 7–9.

     [87].   The other ten states are: Indiana, Louisiana, New York, Pennsylvania, Delaware, Montana, Massachusetts, Wisconsin, Vermont, and Washington. Nat’l  Juv.  Def.  Ctr., Access  Denied: A National  Snapshot of  States’ Failure to  Protect  Children’s Right to  Counsel 10 (2017).

     [88].   Compare N.C. Gen. Stat. § 7B-2000(b) (2019) (“All juveniles shall be conclusively presumed to be indigent, and it shall not be necessary for the court to receive from any juvenile an affidavit of indigency.”), with Ind. Code. § 33-40-3-6(a) (2017) (providing that a guardian may be charged for the representation if it is later determined the guardian is financially able).

     [89].   One major benefit of this standard is that it allows a juvenile to receive appointed counsel without considering the financial status of the juvenile’s parent or guardian. In some instances, a juvenile’s parent or guardian could finance the juvenile’s counsel, but refuses to do so. Juveniles in North Carolina, however, avoid this scenario through the juvenile indigency standard. Therefore, while reliance on appointed counsel poses its own unique set of problems, North Carolina’s juvenile indigency standard still ensures every juvenile can exercise the right to counsel.

     [90].   With only three attorneys on the Office of Juvenile Defender staff, it is impossible for OJD attorneys to regularly observe and assess appointed counsel, or to survey juveniles and parents to determine their satisfaction with their appointed counsel.

     [91].   N.C. Comm’n Indigent Def. Servs., Fiscal Year 2018 Annual Report 7 (2019).

     [92].   This position went into effect on October 1, 2019. 2019-229 N.C. Sess. Laws 8.

     [93].   Id.

     [94].   See Youth Development Centers, N.C. Dep’t Pub. Safety https://www.ncdps.gov/Juvenile-Justice/Juvenile-Facility-Operations/Youth-Development-Centers (last visited Aug. 18, 2020).

     [95].   These individualized plans outline commitment services, including plans for education, mental health services, medical services and treatment programming. Id.

     [96].   Id.

     [97].   Id.

     [98].   In the 2017-2018 fiscal year, North Carolina’s four YDCs cost $26,997,664 to operate. Memorandum from Erik A. Hooks, Sec’y, and Reuben F. Young, Interim Chief Deputy Sec’y, N.C. Dep’t Pub. Safety, to Chairs of the Joint Legis. Oversight Comm. on Just. & Pub. Safety, Chairs of the Senate Appropriation Subcomm. on Just. & Pub. Safety, and Chairs of the House Appropriation Subcomm. on Just. & Pub. Safety, Fiscal Rsch. Div. (Oct. 1, 2018), https://files.nc.gov/ncdps/Annual%20Report%20on%20Youth%20Development%20Centers-%20October%202018_0.pdf [hereinafter Memorandum from Hooks & Reuben].

     [99].   These facilities were: Chatham, a thirty-two-bed facility located in Siler City, N.C.; Edgecombe, a forty-four-bed facility located in Rocky Mount, N.C.; Lenoir, a forty-four-bed facility located in Kinston, N.C.; and Jackson, a ninety-six-bed facility located in Concord, N.C. See id.

   [100].   See Youth Development Centers, supra note 94; N.C. Comm’n Admin Law & Just., supra note 13, app. a., at 18.

   [101].   This investment could also pose serious monetary consequences as the COVID-19 pandemic continues. Currently, the state is committing fewer juveniles to YDCs, so it is possible that North Carolina may not reach full YDC capacity for years to come, if ever.

   [102].   Memorandum from Hooks & Reuben, supra note 98.

   [103].   Div. of Adult Corr. & Juv. Just., N.C. Dep’t Pub. Safety, Juvenile Justice 2016 Annual Report 10 (2016) (identifying a 48 percent decrease from 2010 to 2016). That decrease continued into 2018 with a 62 percent decrease from 2010-2018. Div. Adult Corr. & Juv. Just., N.C. Dep’t Pub. Safety, Juvenile Justice 2018 Annual Report 16 (2018).

   [104].   Juvenile Justice 2016 Annual Report, supra note 103, at 28.

   [105].   This projection reflects the rate of YDC use before the COVID-19 pandemic. While the state is preparing to return to normal operation of its YDCs, it is entirely possible that more counties will continue to move away from YDC use and the number of juveniles committed to a YDC will not rise. Juv. Jurisdiction Advisory Comm., supra note 47, at 10.

    [106].   Ilene Grossman, New Approach to Juvenile Justice: In States Such as South Dakota, Nebraska, and Kansas, Reforms Reduce Reliance on Incarceration, Invest in Proven Intentions, Council of State Gov’ts (May 2015), https://www.csgmidwest.org/policyresearch/0515-juvenile-justice.aspx

   [107].   Off. Juv. Just. & Delinq. Prevention, U.S. Dep’t of Just., Diversion from Formal Juvenile Court Processing 5–7 (2017).

   [108].   These risks are both physical and mental since confined youth are at a greater risk of contracting COVID-19 and new safety measures have decreased the number of visitors and home visits allotted to each juvenile. See All Juveniles in NC Secure Custody Facilities Tested for COVID-19, No Positive Cases Reported, WBTV.Com (July 2, 2020, 4:13 PM), https://www.wbtv.com/2020/07/02/all-juveniles-nc-secure-custody-facilities-tested-covid-no-positive-cases/.

   [109].   Langberg & Robinson, supra note 37 at 7 (“[A] juvenile may be taken into temporary custody – i.e. placed in a detention center – if: . . .

a law enforcement officer or court counselor has reasonable grounds to believe the juvenile is an undisciplined juvenile – i.e., is unlawfully absent from school; regularly disobedient to and beyond the disciplinary control of his/her parent; regularly found in places where it is unlawful for a juvenile to be; or has run away from home for a period of more than 24 hours.”).

    [110].   N.C. Div. Juv. Just., Juvenile Diversion in North Carolina 2 (2013).

   [111].   The annual cost per juvenile for a detention center bed is $57,593. Community programs, however, pose a much lower cost solution at $857, per juvenile, per year. N.C. Comm’n Admin Law & Just., supra note 13, app. a., at 13.

   [112].   Grossman, supra note 106.

   [113].   Id.

   [114].   See Corey R. Steele & Ellen Fabian Brokofsky, Neb. Jud. Branch, Probation Juvenile Justice Reform Efforts March 2019 5 (2019).

   [115].   See Current Operations and Capital Improvements Appropriations Act of 2004, 2004-124 N.C. Sess. Laws 1, 132; Current Operations and Capital Improvements Appropriations Act of 2005, 2005-276 N.C. Sess. Laws 1, 296.

   [116].   In the 2017-2018 fiscal year, 157 juveniles were served by community programs, ninety-nine juveniles exited the program, and seventy successfully completed the program. N.C. Dep’t Pub. Safety, Alternatives to Commitment Programs Annual Evaluation Report 1 (2019).

    [117].   Id. at 2 (“Data analysis from the inception of these services in FY 2004-2005 confirms that that intensive, evidence-based, research-supported services provided to juveniles and their families continue to be effective and cost-efficient.”).

   [118].   Id. at 9.

    [119].   See id.

    [120].   Id.

   [121].   Off. Juv. Just. & Delinq. Prevention, supra note 107, at 1.

   [122].   Juvenile Justice 2018 Annual Report, supra note 103, at 10.

    [123].   Id.

   [124].   From 2013 to 2018, the amount of delinquent complaints decreased by almost 27 percent while the amount of status complaints only decreased by approximately 10 percent. Id. (These percentages were calculated as the percent difference from 2013 to 2018 provided in the annual report).

   [125].   Id.

   [126].   Status offenses are labeled as a class zero offense, indicating they are so lacking in severity that they are not even numbered. See N.C. Div. of Juv. Just., supra note 110, at 7, Table 2.

   [127].   Elizabeth Seigle et al., Council of State Gov’ts, Core Principles for Reducing Recidivism and Improving Other Outcomes for Youth in the Juvenile Justice System 48 (2014).

   [128].   Tabashneck, supra note 18, at 17.

   [129].   Grossman, supra note 106.

   [130].   Langberg & Robinson, supra note 37, at 17–18.

   [131].   As of August 2014, thirty North Carolina counties offered IDS funded “privately assigned counsel” or “contract attorney” as the only option for juvenile defense representation. Id.

   [132].   Id.

   [133].   Some counties have contract attorneys while others have a variety of privately assigned counsel that are paid through IDS. Id.

   [134].   Id. at 9.

   [135].   N.C. Comm’n Admin. Law & Just., supra note 13, app. d, at 42.

   [136].   Id., app. d, at 39-40.

   [137].   For reference, the FY 2019-2020 IDS appropriations were $87,681 in recurring funds, and the FY 2020-2021 appropriations were $109,131. See 2019-229 N.C. Sess. Laws 8.

   [138].   The first point under the Movement for Black Lives’ “Invest-Divest” platform calls for “A reallocation of funds at the federal, state and local level from policing and incarceration (JAG, COPS, VOCA) to long-term safety strategies such as education, local restorative justice services, and employment programs.” Community programs aimed at preventing juvenile crime and rehabilitating juvenile offenders can easily fall under these listed categories.

 Invest-Divest, Movement For Black Lives, https://m4bl.org/policy-platforms/invest-divest/ (last visited Aug. 18, 2020);

 Anthony D. Romero, Reimagining the Role of Police, ACLU (June 5, 2020), https://www.aclu.org/news/criminal-law-reform/reimagining-the-role-of-police/.

   [139].   This funding only includes state allocations and does not encompass the varying levels of local city funding allocated to police. OpenBudget, NC.Gov, https://www.nc.gov/government/open-budget (last visited Aug. 18, 2020).

   [140].   In North Carolina, the city of Winston-Salem is already considering moving $1 million from its anticipated $79 million policing budge to pay for “anti-poverty efforts.” These efforts include a proposed $160,000 towards a summer youth employment program, with a focus of involving juveniles in the community and dissuading them from dangerous or criminal activities. Wesley Young, City Mulls Moving $1M from Police to Anti-Poverty Efforts, Winston-Salem J. (June 8, 2020), https://journalnow.com/news/local/city-mulls-moving-1m-from-police-to-anti-poverty-efforts/article_ba93f491-d8f5-56a4-a860-1a48bd12ec73.html. While this funding is merely a proposal, it may soon gain support as pushes for police divestment take hold in other parts of the country.

   [141].   In 2016 Kansas approved measures to limit the number of juveniles sent to YDCs and the amount of time they spent in those facilities. In that same year, the state implemented its “lockbox mechanism.” The program has worked so well that the state has continuously used it since 2016. See discussion supra Subpart III.B.2. See also  Samantha Harvell et al., Urb. Inst., Promoting a New Direction for Youth Justice: Strategies to Fund a Community-Based Continuum of Care and Opportunity 14 (2019).

By Michael Johnston

           The COVID-19 pandemic has fundamentally reshaped American life.[1] As a result of the potentially high mortality rate of unchecked COVID-19 spread, many state and local governments have implemented orders shutting down various public activities, and 95 percent of Americans are under some form of lockdown as of April 7, 2020.[2] However, perhaps reflecting the partisan divide of our times, some Republican politicians have actively opposed taking those precautionary measures.[3] In North Carolina in particular, Republican Lieutenant Governor Dan Forest, who is challenging Democratic Governor Roy Cooper in the November 2020 elections, opposed Governor Cooper’s executive order banning dine-in service in restaurants in March 2020.[4] Lieutenant Governor Forest opposed the order on both procedural and substantive grounds, claiming that Governor Cooper’s action was taken without legal authority and would devastate the North Carolina economy.[5] Lieutenant Governor Forest claimed that Governor Cooper only had the authority to issue the restaurant order with the support of the Council of State, which opposed Governor’s Cooper restaurant order on partisan lines.[6] While Governor Cooper has since issued a stay-at-home order across North Carolina,[7] it is worth analyzing the legal basis of the order banning dine-in service at restaurants, especially because the legality of that order became a politicized issue.[8]

            On March 17, 2020, Governor Cooper issued Executive Order No. 118, which banned dine-in service in restaurants and permitted only take-out and delivery.[9] This action was taken to slow the spread of COVID-19,“flatten the curve” of infection, and reduce strain on the healthcare system.[10] The Governor cited several statutory provisions in support of his authority to issue the order.[11] Specifically, the Governor cited statutes authorizing executive action for the Governor’s Office, the State Health Director, the Emergency Management Division, and the North Carolina Secretary of Health and Human Services.[12]

            Regarding the Governor’s authority, Governor Cooper’s order[13] cited section 166A-19.10 of the North Carolina General Statutes, which provides the general authority of the Governor of North Carolina,[14] section 166A-19.30 of the North Carolina General Statutes, which provides the emergency authority of the Governor of North Carolina,[15] and section 166A-19.31 of the North Carolina General Statutes, which provides further emergency authority for the Governor if a state of emergency is declared pursuant to section 166A-19.30(c) of the North Carolina General Statutes.[16] Section 166A-19.10(b)(4) empowers the Governor to coordinate with the President of the United States during emergencies,[17] and Governor Cooper’s order cited President Trump’s March 16, 2020, guidelines to limit all social gatherings to ten people.[18] Section 166A-19.30(a)(1) empowers the Governor to declare a state of emergency and “utilize all available State resources as reasonably necessary to cope with an emergency.”[19] Section 166A-19.30(c) empowers the Governor to use municipal authority under section 166A-19.31 if the emergency is a statewide issue and local governments have not done enough to address the emergency.[20] Therefore, section 166A-19.31(b)(2) empowers the Governor, during times of statewide emergency, to order restrictions upon the operations of businesses statewide. Governor Cooper declared a state of emergency for COVID-19 on March 10, 2020,[21] and given the statewide threat posed by COVID-19,[22] it is likely that these statutes provide sufficient authority for Governor Cooper to order the closure of dine-in restaurant services.

            Regarding the State Health Director’s authority, Governor Cooper’s order[23] cited section 130A-145 of the North Carolina General Statutes, which provides the State Health Director with broad quarantine and isolation authority,[24] and section 130A-2 of the North Carolina General Statutes, which defines quarantine authority and isolation authority.[25] Section 130A-2(7a) defines quarantine authority as the authority to limit the freedom of movement of persons who have been exposed or are reasonably likely to have been exposed to a communicable disease, while section 130A-2(3a) defines isolation authority as the authority to limit the freedom of movement of persons who are infected or are reasonably likely to be infected with a communicable disease.[26] Section 130A-145(a) empowers the State Health Director to use both quarantine and isolation authority, which the Director used in Governor Cooper’s order to ban dine-in restaurant services.[27] Again, given the rapid spread of COVID-19 around the world[28] and that health officials had identified at least one case of COVID-19 within North Carolina at the time,[29] it was reasonably likely that large gatherings in dine-in restaurants would contribute to the spread of COVID-19. Therefore, the State Health Director used their statutory authority to ban dine-in services.

            Regarding the Emergency Management Division’s authority, Governor Cooper’s order[30] cited section 166A-19.12 of the North Carolina General Statutes.[31] This statute provides the Division with the authority to coordinate with the State Health Director to determine “[t]he appropriate conditions for quarantine and isolation in order to prevent further transmission of disease.”[32] After coordinating with the State Health Director, the Emergency Management Division concluded, per Governor Cooper’s order, that dine-in restaurant service should be banned due to COVID-19.[33]

            Regarding the authority of the North Carolina Secretary of Health and Human Services, Governor Cooper’s order[34] cited section 130A-20 of the North Carolina General Statutes, which provides the Secretary and local health directors with the authority to order the abatement of imminent hazards.[35] Section 130A-2(3) defines imminent hazard to include “a situation that is likely to cause an immediate threat to human life, an immediate threat of serious physical injury, [or] an immediate threat of serious adverse health effects[.]”[36] Section 130A-20(a) empowers the Secretary and local health directors to take action to abate an imminent hazard on private property.[37] Given the rapid threat posed by COVID-19,[38] it is likely within the Secretary’s authority to order the closure of dine-in restaurant services.

            Collectively, the authority of the Governor, State Health Director, Emergency Management Division, and North Carolina Secretary of Health and Human Services justify Governor Cooper’s order closing dine-in restaurant services. It is true that section 166A-19.30(b) of the North Carolina General Statutes, which includes provisions about the regulation of food services and congregations in public places during emergencies, implies that the Governor must have the support of the Council of State to issue emergency regulations regarding restaurants and other public activities.[39] That is likely why Lieutenant Governor Forest argued that Governor Cooper lacked the authority to issue the executive order.[40] However, the other statutes provide more than sufficient authority for Governor Cooper’s order, especially when the order was issued at the recommendation of the State Health Director, the Emergency Management Division, and the North Carolina Secretary of Health and Human Services.   

           In short, during health emergencies, the Governor of North Carolina has broad unilateral authority, especially with the support of other emergency and health officials, and Governor Cooper’s executive order banning dine-in restaurant service was within his statutory authority.


[1] State Action on Coronavirus (COVID-19), Nat’l Conf. St. Legis., https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx (last visited Apr. 13, 2020).

[2] Holly Secon & Aylin Woodward, About 95% of Americans Have Been Ordered to Stay at Home. This Map Shows Which Cities and States Are Under Lockdown., Bus. Insider (Apr. 7, 2020, 3:13 PM), https://www.businessinsider.com/us-map-stay-at-home-orders-lockdowns-2020-3; State Action on Coronavirus (COVID-19), supra note 1.

[3] Ronald Brownstein, Red and Blue America Aren’t Experiencing the Same Pandemic, Atlantic (Mar. 20, 2020), https://www.theatlantic.com/politics/archive/2020/03/how-republicans-and-democrats-think-about-coronavirus/608395/.

[4] Editorial Bd., A COVID-19 Order Just for NC Lt. Gov. Dan Forest: Hush, Charlotte Observer (Mar. 18, 2020, 3:21 PM), https://www.charlotteobserver.com/opinion/editorials/article241298386.html; Lt. Governor Forest Questions Validity of Restaurant Ban, N.C. Lieutenant Governor Dan Forest (Mar. 17, 2020), https://ltgov.nc.gov/news/2020/03/17%20/lt-governor-forest-questions-validity-restaurant-ban.

[5] Editorial Bd., supra note 4.

[6] Travis Fain, Lt. Governor Questions Validity of Governor’s NC Restaurant Ban, WRAL.com (Mar. 17, 2020), https://www.wral.com/coronavirus/lt-governor-questions-validity-of-governor-s-nc-restaurant-ban/19016721/.

[7] Governor Cooper Announces Statewide Stay at Home Order Until April 29, N.C. Dep’t Health & Hum. Servs. (Mar. 27, 2020), https://www.ncdhhs.gov/news/press-releases/governor-cooper-announces-statewide-stay-home-order-until-april-29.

[8] For the purposes of statutory interpretation in this blog post, I will adopt a plain meaning framework. This is because plain meaning analysis is frequently thought to be the best starting point when interpreting statutory text, especially in the absence of caselaw or substantial legislative history. See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 626–29 (1990).

[9] N.C. Exec. Order No. 118 (Roy Cooper, Governor) (Mar. 17, 2020), https://files.nc.gov/governor/documents/files/EO118.pdf.

[10] Id.; Brandon Specktor, Coronavirus: What Is ‘Flattening the Curve,’ and Will It Work?, Live Science,

https://www.livescience.com/coronavirus-flatten-the-curve.html (last visited Apr. 13, 2020).

[11] N.C. Exec. Order No. 118.

[12] Id.

[13] Id.

[14] N.C. Gen. Stat. § 166A-19.10 (2019).

[15] Id. § 166A-19.30.

[16] Id. § 166A-19.30(c); id. § 166A-19.31.

[17] Id. § 166A-19.10(b)(4).

[18] N.C. Exec. Order No. 118.

[19] N.C. Gen. Stat. § 166A-19.30(a)(1).

[20] Id. § 166A-19.30(c); id. § 166A-19.31.

[21] Governor Cooper Declares State Of Emergency to Respond to Coronavirus COVID-19, N.C. Governor Roy Cooper (Mar. 10, 2020), https://governor.nc.gov/news/governor-cooper-declares-state-emergency-respond-coronavirus-covid-19.

[22] Julia Belluz, How Does the New Coronavirus Spread? These New Studies Offer Clues, Vox, https://www.vox.com/2020/2/20/21143785/coronavirus-covid-19-spread-transmission-how (last updated Mar. 8, 2020).

[23] N.C. Exec. Order No. 118.

[24] N.C. Gen. Stat. § 130A-145.

[25] Id. § 130A-2.

[26] Id. § 130A-2(3a); id. § 130A-2(7a).

[27] Id. § 130A-145(a); N.C. Exec. Order No. 118.

[28] Belluz, supra note 22.

[29] North Carolina Identifies First Case of COVID-19, N.C. Dep’t Health & Hum. Servs. (Mar. 3, 2020), https://www.ncdhhs.gov/news/press-releases/north-carolina-identifies-first-case-covid-19.

[30] N.C. Exec. Order No. 118.

[31] N.C. Gen. Stat. § 166A-19.12.

[32] Id. § 166A-19.12(3)(e).

[33] N.C. Exec. Order No. 118.

[34] Id.

[35] N.C. Gen. Stat. § 130A-20.

[36] Id. § 130A-2(3).

[37] Id. § 130A-20(a).

[38] Belluz, supra note 22.

[39] N.C. Gen. Stat. § 166A-19.30(b).

[40] Editorial Bd., supra note 4.

By Matthew Hooker

           For the duration of the COVID-19 emergency, North Carolina corporations may conduct shareholders’ meetings completely via remote communication technology, pursuant to an executive order by Governor Roy Cooper.[1] This order temporarily resolves an ambiguity in the North Carolina Business Corporation Act pertaining to remote participation in shareholders’ meetings, allowing North Carolina corporations to address pressing business matters without raising concerns about the validity of actions taken at wholly virtual shareholders’ meetings.[2]

            The global crisis stemming from the COVID-19 pandemic[3] has brought the global, national, and local economies to a collective screeching halt.[4] For those businesses that have sought to continue operations, those operations now look vastly different. In the United States, currently at least forty-two states, the District of Columbia, and Puerto Rico (together representing around 316 million people) are under various forms of “stay-at-home” orders.[5] Now that avoiding even small groups and staying at home have become the new normal, virtual conferencing platforms using video and screen sharing technology have quickly emerged as vitally necessary to businesses’ continued operations.[6]

            Corporations in North Carolina have been forced to deal with the question of whether shareholders’ meetings may be conducted completely remotely and still be valid under North Carolina law. As drafted, the North Carolina Business Corporation Act is not entirely clear on this issue; it can be interpreted as providing that a valid shareholders’ meeting may only be held at a physical location. To illustrate, the Act refers to holding both annual and special meetings “in or out of this State at the place stated in or fixed in accordance with the bylaws”[7] and requires that a valid notice of a meeting include the “place” of the meeting.[8] Under certain circumstances, the Act allows shareholders to participate and vote in those meetings “by means of remote communication.”[9] But the Act is silent as to whether the entire meeting may be held virtually with no physical place of meeting.[10]

            To bring clarity to this issue in light of the COVID-19 pandemic and the need for business to be conducted remotely as much as possible, North Carolina Governor Roy Cooper issued an executive order on April 1, 2020 authorizing and encouraging remote shareholders’ meetings.[11] This order appears to apply equally to annual meetings and special meetings. Under the order, a corporation’s board of directors may determine that all or part of a shareholders’ meeting may be held solely via remote communication.[12] This type of remote shareholders’ meeting is permissible under two conditions: (1) shareholders must be allowed to participate and vote under the existing remote participation and voting statute,[13] and (2) all shareholders must have the right to participate in the meeting via remote communication.[14] Governor Cooper’s executive order resolves the ambiguity of the North Carolina Business Corporation Act by providing that a “place” of a meeting within the meaning of the Act can include a meeting where all shareholders participate through remote communication (i.e., there is no physical “place” of the meeting).[15]

            But the order goes even further. It also permits a corporation’s board of directors to limit the number of attendees physically present at a shareholders’ meeting in order to ensure conformity to other state gathering restrictions.[16] In other words, it appears that not only may a board of directors call for a completely remote shareholders’ meeting, but the board could also hold a meeting at a physical place but then prohibit shareholders from physically attending and force shareholders to attend remotely.

            This executive order provides North Carolina corporations with clarity during the COVID-19 crisis. It enables them to conduct meetings and business that involve shareholders without fear that actions taken at a remotely held shareholders’ meeting will be deemed void.[17] In the midst of a global crisis such as COVID-19, it is important that corporations can continue to operate as best as they can without compromising the health and safety of shareholders, among others.

            However, not only does Governor Cooper’s order resolve this important issue for corporations as long as the COVID-19 emergency lasts, but it also reveals that the North Carolina Business Corporation Act needs updating. The current version of the North Carolina Business Corporation Act was enacted in 1989 and thus does not comprehend many of the vast technological shifts and developments of the 21st century.[18] Although the Act was amended in 2013 to allow shareholders to remotely participate in shareholders’ meetings,[19] the addition of that provision only explicitly allows remote participation; the Act overall still seems to contemplate some sort of physical location where the meeting is actually held. If anything, that 2013 amendment creates ambiguity rather than resolving confusion. Interestingly enough, Governor Cooper’s executive order actually concludes by advising that the order should not be construed or interpreted as suggesting that a shareholders’ meeting held wholly via remote communication would not otherwise be valid if not for the executive order.[20] Thus, even Governor Cooper’s order seems to subtly acknowledge the lack of clarity within the North Carolina Business Corporation Act on this matter.

            The world has changed greatly since 1989—and even since 2014. With key provisions of the North Carolina Business Corporation Act now over three decades old, it may be time for the North Carolina legislature to revisit the Act. Modern technology has opened up a world of possibilities for corporations, and the Act should reflect that. Remote communication options are just one example. These technologies are becoming increasingly prevalent and dependable—even when no global health crisis exists—and the law should not inhibit progress in the corporate context. In fact, Delaware has long permitted shareholders’ meetings to be held solely via remote communication.[21] Amending the North Carolina Business Corporation Act will align North Carolina with other leading states in corporate law. Ultimately, this will enhance North Carolina’s viability as a modern, attractable location for entity incorporation as well as facilitate existing domestic corporation’s continued leverage of the digital world.


[1] See N.C. Exec. Order No. 125 (Roy Cooper, Governor) (Apr. 1, 2020), https://files.nc.gov/governor/documents/files/EO125-Authorizing-Encouraging-Remote-Shareholder-Meetings.pdf.

[2] See id. § 1(A).

[3] See WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020, World Health Org. (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020.

[4] See, e.g., Harriet Torry & Anthony DeBarros, WSJ Survey: Coronavirus to Cause Deep U.S. Contraction, 13% Unemployment, Wall St. J. (Apr. 8, 2020, 10:00 AM), https://www.wsj.com/articles/wsj-survey-coronavirus-to-cause-deep-u-s-contraction-13-unemployment-11586354400.

[5] Sarah Mervosh et al., See Which States and Cities Have Told Residents to Stay at Home, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html (last updated Apr. 7, 2020).

[6] See, e.g., Akanksha Rana & Arriana McLymore, Teleconference Apps and New Tech Surge in Demand Amid Coronavirus Outbreak, Reuters (Mar. 13, 2020, 3:33 PM), https://www.reuters.com/article/us-health-coronavirus-teleconference/teleconference-apps-and-new-tech-surge-in-demand-amid-coronavirus-outbreak-idUSKBN21033K.

[7] N.C. Gen. Stat. §§ 55-7-01(b), 55-7-02(c) (2019).

[8] Id. § 55-7-05(a).

[9] Id. § 55-7-09(a).

[10] Cf. § 55-7-05(a) (requiring notice of the place of the shareholders’ meeting).

[11] See N.C. Exec. Order No. 125, supra note 1.

[12] Id. § 1(A).

[13] See N.C. Gen. Stat. § 55-7-09.

[14] N.C. Exec. Order No. 125, supra note 1, at § 1(A)(1)–(2).

[15] See id. § 1(B)(2).

[16] Id. § 1(B)(3).

[17] See id. § 1(C).

[18] See 1989 N.C. Adv. Legis. Serv. 265 (LexisNexis).

[19] See N.C. Gen. Stat. § 55-7-09 (2019); 2013 N.C. Adv. Legis. Serv. 153 (LexisNexis).

[20] See N.C. Exec. Order No. 125, supra note 1, at § 1(D).

[21] See Del. Code Ann. tit. 8, § 211(a) (2020).

By Emily Yates

In 2012, North Carolina became the thirtieth state to adopt a constitutional amendment refusing to recognize any marriages or civil unions other than those between one man and one woman.[1]  Article 14, Section 6 of the North Carolina Constitution, popularly referred to as “Amendment One,” states that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized by this state.”[2]  Only eight years ago, Amendment One passed with 61% of voters in favor of enshrining this restrictive definition of marriage in our state constitution.[3]  When the passage of Amendment One was announced, proponents “celebrated the win with a tiered wedding cake at a party in the North Raleigh Hilton Hotel.”[4]  Tami Fitzgerald, then the chairwoman of Vote for Marriage NC, the group behind Amendment One, attempted to convince the press that “we are not anti-gay, we are pro marriage.”[5]  She elaborated that “the whole point is simply that you don’t rewrite the nature of God’s design for marriage based on the demands of a group of adults.”[6]  However, LGBTQ+ advocates and opponents of Amendment One recognized that “this is just a skirmish, in a battle in the war that we will win.”[7]

Thankfully, Amendment One was rendered moot three years after its passage by the Supreme Court’s landmark ruling in Obergefell v. Hodges.[8]  In Obergefell, the Supreme Court held that same-sex couples have the constitutional right to “have their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”[9]  This ruling marked the federal legalization of same-sex marriages and overruled all state laws and constitutional provisions outlawing such marriages. 

Unsurprisingly, not everyone agreed with the holding and impact of Obergefell.  Some felt it “fundamentally misunder[stood] the reality of what marriage is,” and that same-sex marriages would degrade the “sanctity of marriage.”[10]  Others felt that the decision was made on fabricated constitutional grounds, and that it deprived states of the ability to define marriage as between one man and one woman, as many had already chosen to do.[11] 

After Obergefell, it seemed as if the same-sex marriage debate had finally ended.  However, some North Carolinians were not ready to give up the fight.  On Valentine’s Day 2019, five Republican state legislators introduced House Bill 65, the short title of which was the Marriage Amendment Reaffirmation Act.[12]  The long title of House Bill 65 was “An Act to Reaffirm the Vote of the People of North Carolina to Adopt Article XIV, Section 6 of the Constitution of the State of North Carolina, Known as the Marriage Amendment, to State Why the Amendment Should be Upheld, to Declare Null and Void for the State of North Carolina the Obergefell v. Hodges Decision of the United States Supreme Court, and to Call on the United States Supreme Court to Overturn the Obergefell v. Hodges Decision.”[13]

Despite its comedically long title, House Bill 65 contains some divisive and scary rhetoric.  The Representatives who drafted the bill assert that Obergefell must be overturned because it violated the Establishment Clause of the First Amendment by imposing upon the American people “Secular Humanism” and its beliefs.[14]  It defines all marriages other than those between a man and a woman as “parody marriages” that “do not follow the scientifically obvious biology of the human species.”[15]  It continues by iterating that “there are thousands of taxpayers living in the State of North Carolina who sincerely believe that all forms of marriages that do not involve one man and one woman are immoral. . . [and] enable immorality and the erosion of community standards of decency.”[16]  House Bill 65 concludes that North Carolina must consider “null and void and unenforceable” the holding in Obergefell as violative of the First Amendment of the US Constitution.[17]

The impact of such a bill, should it be passed, would be the attempted nullification of all same-sex marriages performed since 2015.  Fortunately, despite the fact that the bill was referred to the Committee on Rules, jokingly referred to by some as where “bills go to die,”[18] House Bill 65 is not dead enough.  Two years before House Bill 65 was proposed, the state legislature was presented with House Bill 780, which also attempted to reinstate Amendment One on the grounds that Obergefell incorrectly interpreted “the decree of God.”[19]  Like House Bill 65, House Bill 780 was sent to the Committee on Rules.[20]  However, of House Bill 780, House Speaker Tim Moore released a public statement that the bill “will not be heard.”[21]  No such assurance has been made about House Bill 65. 

Nearly five years ago, the Supreme Court recognized the right of same-sex couples to marry.  This decision should have finally allowed same-sex couples to rest assured in the security of their unions and the protections of their families against government interference.  Unfortunately for same-sex married couples in North Carolina, this has not been the case.  On a biannual basis, legislation has been proposed attempting to undermine the constitutional right to marriage.  Both pieces of legislation relied upon reinstating Amendment One, which would set North Carolina back nearly ten years in the LGBTQ+ rights movement and upend and unknown number of marriages and families.  The North Carolina legislature must act to formally remove Amendment One from the state constitution and finally give same-sex married couples the stability and privacy to which they are constitutionally entitled.


[1] Campbell Robertson, North Carolina Voters Pass Same-Sex Marriage Ban, N.Y. Times (May 8, 2012), https://www.nytimes.com/2012/05/09/us/north-carolina-voters-pass-same-sex-marriage-ban.html.

[2] N.C. Const. art. XIV, § 6.

[3] Karen McVeigh, North Carolina Passes Amendment 1 Banning Same-Sex Unions, Guardian (May 9, 2012), https://www.theguardian.com/world/2012/may/09/north-carolina-passes-amendment-1.

[4] Id.

[5] Robertson, supra note 1.

[6] Id.

[7] Id.

[8] 135 S.Ct. 2584 (2015).

[9] Id. at 2593.

[10] Nathanael Blake, 3 Years of Experience Have Only Proved That Obergefell Was a Big Mistake, Federalist (June 28, 2018), https://thefederalist.com/2018/06/28/3-years-experience-proved-obergefell-big-mistake/.

[11] Ken Connelly, Why Supreme Court Got It Wrong, CNN (June 27, 2015), https://www.cnn.com/2015/06/26/opinions/connelly-same-sex-marriage-ruling/index.html.

[12] H.B. 65, 2019 Gen. Assemb. Reg. Sess. (N.C. 2019).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Colin Campbell, Proposed Gay Marriage Ban Is Dead in NC House, Speaker Says, News & Observer (Apr. 12, 2017), https://www.newsobserver.com/news/politics-government/state-politics/article144169109.html.

[19] Becca Heilman, NC Bill Banning Same-Sex Marriage Will Not Advance in the General Assembly, Daily Tar Heel (Apr. 13, 2017), https://www.dailytarheel.com/article/2017/04/nc-bill-banning-same-sex-marriage-will-not-advance.

[20] Id.

[21] Campbell, supra note 18.

By Paul Fangrow

According to the National Institute on Drug Abuse (“NIDA”), more than 130 people in the United States die every day from overdosing on an opioid drug.[1] The Centers for Disease Control and Prevention (“CDC”) reports that 68% of the over 70,200 deaths by drug overdose in 2017 were from an opioid.[2] Additionally, the CDC estimates the total economic burden per year in the United States is to the tune of $78.5 billion on just prescription opioid abuse.[3] In 2017, the US Department of Health and Human Services (“HHS”) declared that the opioid epidemic was a public health emergency.[4] Since then, over a billion dollars have been granted to community health centers to treat and research opioid addiction through the HHS.[5]

The alphabet soup of federal agencies are not the only actors on this stage attempting to treat the problem; states have also tried to prescribe their own remedies to societies’ new addiction.[6] As states scramble to find ways to staunch the hemorrhage of avoidable deaths via opioid abuse, North Carolina has breathed new life into a specter of the 1980s, leftover from the War on Drugs.[7] On December 1, 2019, North Carolina’s “death by distribution” law went into effect, which attempts to help fix the crisis by imposing felony convictions on illegal distributors of certain categories of drugs, when those drugs result in the death of their user.[8] Unfortunately, this new “death by distribution” law looks to be a very small solution for a very large problem.

To understand why this fix is so small, consider the cause of the epidemic. It has been widely reported and accepted that the opioid epidemic’s “patient zero” was over-prescription of opioid painkillers in the late 1990s, which led to rampant misuse by patients due to the extremely addictive properties of these painkillers.[9] NIDA reports that between 21% and 29% of patients prescribed opioids for pain relief misuse them, and 8% to 12% of that pool of patients develop a “use disorder.”[10] Out of the original 21% to 29% of people who misuse prescription opioids and ostensibly included in the 8% to 12% of “use disorder” cases, 4% to 6% transition to heroin abuse.[11] Roughly 80% of heroin users initially were misusing prescription opioids.[12]

Now consider what this “death by distribution” law criminalizes. First, while one might intuit “distribution,” the elements of both death by distribution[13] and aggravated death by distribution[14] explicitly state “[t]he person unlawfully sells at least one certain controlled substance.” Not any kind of distribution is criminalized, only sales of certain controlled substances.[15] The statute later defines what kinds of drugs are included as “certain controlled substances,”[16] as well as “lawful distribution” in a way to allow medical professionals to issue valid prescriptions for a legitimate medical purpose, and to allow for pharmacies to dispense, deliver, or administer controlled substances.[17]

Second, both regular and aggravated charges require that “ingestion of the certain controlled substance causes the death of the user.”[18] Third, the sale of the certain controlled substance has to be the proximate cause of the victim’s death.[19] Fourth, the seller must not have acted with malice.[20] The aggravated flavor of the charge includes an additional fifth element that essentially requires the seller to have a previous conviction of this or another drug distribution or trafficking crime.[21] What this law does, in essence, is push the illegal sale of certain categories of drugs from a Class I, H, or G felony[22] to a Class C or B2[23] felony if a person dies from overdose. Two questions arise after a review of this law: will North Carolina’s flavor of drug-induced homicide statute have any meaningful impact on the opioid epidemic,[24] and how does a prosecutor even go about proving all the elements of the crime?

Drug-induced homicide statutes began creeping into the criminal codes of various states in the 1980s to combat the growing use of crack cocaine;[25] North Carolina’s death by distribution law even covers cocaine and its derivatives as the sole stimulant in a long list of depressants.[26] The idea behind these statutes was that big distributors and traffickers would be able to be charged for the deaths of their customers.[27] In reality, the people often caught by these drug-induced homicide statutes were friends, family members, or caretakers sharing drugs with one another.[28] The North Carolina statute is thus very clever in specifying a sale of a drug instead of mere distribution, as it ostensibly will avoid this unfortunate outcome. Unfortunately, clever avoidance of an overbreadth problem doesn’t speak to its efficacy as a solution to the opioid epidemic. Remember that the cause is over-prescription and subsequent abuse of painkillers.[29] While this law may help the people who’ve moved on to heroin or other illegal opioids by virtue of closing down the avenues for its distribution, it does nothing to address the problem of abuse with legally obtained opioids.[30]

 The bigger issue with drug-induced homicide laws is proving the actual offense.[31] Drug-induced homicide laws do have two distinct advantages in that category; they do not have a mens rea requirement and operate as a strict liability offense, and they often do not have a proximate cause or foreseeability element.[32] North Carolina’s death by distribution law is similar in that it has no mens rea element in either the standard nor the aggravated offense, but both offenses explicitly incorporate a proximate cause requirement.[33] This introduces concepts of foreseeability and/or intervening or superseding causation into the statute,[34] which can significantly muddy an otherwise straightforward case. What if the buyer of a drug intentionally overdoses as a form of suicide?[35] What if the victim overdosed by taking a mixture of Vicodin and LSD?[36] The explicit statutory language requires that “[t]he ingestion of the certain controlled substance or substances cause[] the death of the user;”[37] what if a drug dealer sells oxycontin to a driver who dies in a car accident while high? This is ignoring the difficulty in locating and proving that a specific dealer sold the specific drug to a specific person who overdosed on that specific drug: what if the victim has more than one dealer of the same product? Ultimately, these are all fact-intensive inquiries for a jury to resolve, which introduces a large degree of unpredictability into any death by distribution case.

Besides unpredictability, there are other factors that make the death by distribution law unworkable. The administrative costs to secure toxicology reports and get experts to testify as to the drugs within the victim’s systems brings with it a higher administrative cost to prosecute.[38] There is also the greater financial burden on the state to incarcerate dealers for four to fifteen years instead of less-than-one to three years. All these costs go to remedy a symptom, not the actual disease underlying the opioid epidemic. People affected by the opioid epidemic deserve better solutions than a stopgap relic from the 1980s. The death by distribution law will be simply ineffective.


[1] Opioid Overdose Crisis, NIH, https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis (last updated Jan. 2019).

[2] Understanding the Epidemic, CDC, https://www.cdc.gov/drugoverdose/epidemic/index.html (last updated Dec. 19, 2018).

[3] NIH, supra note 1.

[4] What is the U.S. Opioid Epidemic?, HHS, https://www.hhs.gov/opioids/about-the-epidemic/index.html (last updated Sept. 4, 2019).

[5] Nathan Yerby, Epidemic, OpioidHelp, https://www.opioidhelp.com/epidemic/ (last edited Oct. 15, 2019).

[6] Prescribing Policies: States Confront Opioid Overdose Epidemic, Nat’l Conf. State Legislatures (June 30, 2019) https://www.ncsl.org/research/health/prescribing-policies-states-confront-opioid-overdose-epidemic.aspx.

[7] Valena E. Beety, Drug Enforcement & Health Policy in Today’s Epidemic: Prosecuting Opioid Use, Punishing Rurality, 80 Ohio St. L.J. 741, 757–58 (2019).

[8] N.C. Gen. Stat. § 14-18.4 (2019).

[9] CDC, supra note 2; HHS, supra note 4; NIH, supra note 1.

[10] NIH, supra note 1.

[11] NIH, supra note 1.

[12] NIH, supra note 1.

[13] N.C. Gen. Stat. § 14-18.4(b)(1) (2019) (“Death by Distribution of Certain Controlled Substances”) (emphasis added).

[14] N.C. Gen. Stat. § 14-18.4(c)(1) (2019) (“Aggravated Death by Distribution of Certain Controlled Substances”) (emphasis added).

[15] N.C. Gen. Stat. § 14-18.4(b)(1), (c)(1) (2019).

[16] N.C. Gen. Stat. § 14-18.4(d) (2019) (“ . . . [A]ny opium, opiate, or opioid; any synthetic or natural salt, compound derivative, or preparation of opium, opiate, or opioid; cocaine or any other substance described in [the list of cocaine derivatives]; methamphetamine; a depressant described in [the list of Schedule IV depressants]; or a mixture of one or more of these substances.”)

[17] N.C. Gen. Stat. § 14-18.4(g) (2019).

[18] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).

[19] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).

[20] N.C. Gen. Stat. § 14-18.4(b)(4), (c)(4) (2019). If they acted with malice, presumably they would be charged with murder instead.

[21] N.C. Gen. Stat. § 14-18.4(c)(4) (2019).

[22] N.C. Gen. Stat. § 90-95(b) (2019) (depending on what schedule the drug is on).

[23] N.C. Gen. Stat. § 14-18.4(h) (2019) (criminalizing death by distribution as a Class C felony and aggravated death by distribution as a Class B2 felony).

[24] Jamie Peck, Why Heroin Addicts Are Being Charged With Murder, Rolling Stone (Aug. 2, 2018), https://www.rollingstone.com/culture/culture-features/heroin-opioid-addicts-charged-with-murder-o-d-703242/.

[25] Valena E. Beety et al., Drug-Induced Homicide: Challenges and Strategies in Criminal Defense, 70 S.C. L. Rev. 707, 709 (2019).

[26] N.C. Gen. Stat. § 14-18.4(d) (2019).

[27] Beety et al., supra note 25.

[28] Id.; see Peck, supra note 24.

[29] NIH, supra note 1.

[30] This may be intentional, however, as the STOP Act of 2017 explicitly targeted legally prescribed opioids and tightened how they are to be prescribed by pharmacists and physicians; the electronic prescription requirement of the act came into effect just this year. Bill Summary, N.C. Medical Board, https://www.ncmedboard.org/images/uploads/article_images/The_STOP_Act_summary-OnLetterhead.pdf (last revised June 30, 2017).

[31] Hailey Varner, Note, Chasing the Deadly Dragon: How the Opioid Crisis in the United States Is Impacting the Enforcement of Drug-Induced Homicide Statutes, 19 U. Ill. L. Rev. 1799, 1824 (2019).

[32] Alex Kreit, Drug Enforcement & Health Policy in Today’s Epidemic: The Opioid Crisis and the Drug War at the Crossroads, 80 Ohio St. L.J. 887, 896–97 (2019).

[33] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).

[34] Beety et al., supra note 25, at 725–27 (explaining the effect of proximate cause and intervening cause doctrine on drug-induced homicide charges).

[35] Kreit, supra note 32, at 897 (noting that at least one federal district court judge stated that suicide through heroin overdose met a death by homicide statute’s terms, which did not have a proximate cause element).

[36] LSD is not covered by the Death by distribution statute.

[37] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).

[38] According to some commentators, the point of these kinds of laws isn’t even to prosecute them; they’re just a scare tactic to force caught dealers into a plea agreement. Beety, supra note 7, at 758–59.

By Kyle Brady

Known for clever cheers and creative school spirit, high school cheerleaders rarely garner national attention, spark protests, or tap into the highly polarized political fabric of our country. One North Carolina squad, however, managed to accomplish this incredible feat with one photo. What was so scandalous and controversial about this photo? The North Stanly County High School cheer team was pictured posing with a flag that read: “Trump 2020 Make America Great Again.”[1]

Putting aside the modern reality that student participation in the political process can cause such a reaction, the school district faced a PR nightmare after the photo was posted online forcing it to toe the line between respecting student speech and enforcing school policy.[2] The day after the photo surfaced on Facebook, the school released a statement claiming that the photo “was not . . . planned or endorsed by the school or its staff” and that “[t]he picture was taken prior to the event starting.”[3] Nevertheless, the North Carolina High School Athletic Association (NCHSAA) placed the cheer team on probation for violating a district policy prohibiting the distribution of political campaign materials at school events.[4] The probation prompted a group of citizens to organize a protest, and elicited a response from U.S. Congressman Rich Hudson (R-NC) who wrote the NCHSAA to voice his discontent over students being punished for “exercising their First Amendment right to free speech.”[5] North Stanly High School even cancelled its next home game due to unspecified student safety concerns.[6]

In a time where the spark of our polarized politics so often meets the jet fuel of social media addiction, a review of First Amendment jurisprudence as it applies to public schools may be in order. First Amendment issues in schools often emerge in times of increased attention to hyper-polarized issues,[7] so naturally this issue has reemerged in the age of Trump. Unsurprisingly, there have been other controversial topics in our Nation’s history that have led to student protests in our schools. In fact, students’ First Amendment rights have been at issue for several decades.

Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969)

In December of 1965, three students decided to wear black armbands to school to protest U.S. involvement in the Vietnam War.[8] A few days before the students participated in the demonstration, administrators discovered their plan and adopted a policy to suspend any student who refused to remove their armband after being asked.[9] The students wore the armbands anyways, did not remove them when asked, and were suspended from school.[10] Eventually, the students sued. The result? Justice Fortas and the Supreme Court authored a landmark opinion addressing the question of student symbolic speech.[11]

The Court held that “where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”[12] It reasoned that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”[13] In subsequent cases, lower courts have used Tinker’s language to bar actual or potentially disruptive student speech from the classroom.[14] Such an analysis seems simple enough, but as time progressed, the Supreme Court added several exceptions to the Tinker doctrine to give schools more control over speech.[15]

Bethel Sch. Dist. No. 403 v. Fraser (1986)

The Supreme Court’s first deviation from the Tinker doctrine came in Fraser. In Fraser, a student was suspended after delivering a sexually charged speech supporting a candidate for student government at a school gathering.[16] The student sued the school under the First Amendment. The Court limited its ruling in Tinker by allowing schools to regulate “offensively lewd and indecent speech.”[17] It held that “[t]he schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct. . . .” Lower courts have struggled to apply this rule consistently.[18] Some courts find its language to apply narrowly to sexually charged speech, while others take the opposite approach and apply the rule broadly.

However the rule is applied, display of a flag supporting the President reelection is not “offensively lewd and indecent speech” because the Fraser court recognized a “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of [Fraser’s] speech.”[19] This brings us to the next exception the Supreme Court adopted.

Hazelwood Sch. Dist. v. Kuhlmeier (1988)

In Hazelwood, student members of a student-run newspaper brought suit after the school deleted two pages exploring student struggles with the issues of pregnancy and divorce from the paper.[20] The school disapproved of the articles because they would potentially allow affected students to be identified and the school thought the topics were inappropriate for some of the younger students.[21] The Court differentiated its decision from Tinker by exploring “whether the First Amendment requires a school affirmatively to promote particular student speech” rather than “whether the First Amendment requires a school to tolerate particular student speech.”[22] The Court found that schools are entitled to greater control over “school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”[23] Additionally, the Court ruled that “[a] school must also retain the authority to refuse . . . to associate the school with any position other than neutrality on matters of political controversy.”[24] The Court reasoned that such control is necessary so that schools may fulfill their duties to the students.[25] The Court employed similar reasoning to create the next, and final, exception to the Tinker doctrine 19 years later.

Morse v. Frederick (2007)

In Morse, a school principal permitted students to watch the 2002 Winter Olympic Torch Relay when it passed by a road in front of the high school.[26] During the event, a student was suspended for unfurling a large banner that read “BONG HiTS 4 JESUS.”[27] The Court held that a school may restrict student speech at a school event that is reasonably viewed as promoting illegal drug use.[28] It reasoned that because of the seriousness of the issue of drug abuse, the government has a compelling interest to regulate its promotion within schools.[29] While such a bright line rule is refreshing in First Amendment jurisprudence, the Court did little to clear up the ambiguities and confusion left in the wake of its former opinions. In fact, the Court refused to extend Fraser “too far” and claimed that “[t]he concern here is not that [the student]’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use.”[30]

  • Considering these cases, how would the current situation play out?

Since the cheerleaders were not promoting the use of illegal drugs and a flag supporting the President of the United States is not “offensively lewd and indecent speech,” Morse and Fraser will not come into play. That leaves Tinker, which broadly protects political speech as long as it is not disruptive, and Hazelwood, which expressly limits speech which can reasonably be interpreted as being sponsored by the school.

Clearly, Hazelwood lends the most support for NCHSAA’s decision to place the North Stanly High School cheer team on probation. Presumably recognizing this, the school district even incorporated the Hazelwood analysis into its public statements.[31] If the circumstances were different and the cheerleaders were not wearing school uniforms as representatives of the school, Tinker would most likely apply to protect their First Amendment rights to political expression. However, since students, parents, and members of the public could certainly “reasonably perceive” that the expression “bears the imprimatur of the school,” and since the photo was taken at a school event, it would seem that the NCHSAA operated within its authority to put the students on probation.[32] Currently, there is no indication that this incident will result in litigation. For now, it acts as a small reminder of a decades-old debate that will not be resolved any time soon.


[1] Caitlin O’Kane, Cheerleaders Held Up a “Trump 2020” Sign During a Football Game. They Were Put on “Probation” for the Rest of the Season, CBS News (Sept. 17, 2019), https://www.cbsnews.com/news/cheerleaders-put-on-probation-for-trump-2020-sign-during-north-stanly-high-school-football-game-north-carolina/.

[2] See Marc Nathanson, North Carolina School Officials Cancel Football Game After Cheerleaders’ Trump 2020 Banner, ABC News (Sept. 21, 2019), https://abcnews.go.com/US/north-carolina-school-officials-cancel-football-game-cheerleaders/story?id=65765969.

[3] Kristy Kepley-Steward, North Carolina Cheerleading Squad on Probation for ‘Political Message’ at Game, WLOS (Sept. 16, 2019), https://wlos.com/news/local/north-carolina-cheerleading-squad-on-probation-for-political-message-at-game.

[4] O’Kane, supra note 1.

[5] Andrea Blanford (@AndreaABC11), Twitter, (Sept. 17, 2019, 1:05 PM), https://twitter.com/AndreaABC11/status/1174006406753783808.

[6] Nathanson, supra note 2.

[7] See generally Morse v. Frederick, 551 U.S. 393 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

[8] Tinker, 393 U.S. at 504.

[9] Id.

[10] Id.

[11] Ronna G. Schneider, General Restrictions on Freedom of Speech in Schools, 1 Educ. L. § 2:3 (2018).

[12] Tinker, 393 U.S. at 509.

[13] Id. at 508.

[14] See Matthew M. Pagett, A Tinker’s Damn: Reflections on Student Speech, 2 Wake Forest J.L. & Pol’y 1, 19 (2012).

[15] See id. at 4.

[16] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 677–78 (1986).

[17] Id. at 685.

[18] Pagett, supra note 14, at 10.

[19] Fraser, 478 U.S. at 680.

[20] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 263 (1988).

[21] Id.

[22] Id. at 270–71 (emphasis added).

[23] Id. at 273.

[24] Id. at 271.

[25] Id.

[26] Morse v. Frederick, 551 U.S. 393, 397 (2007).

[27] Id. at 397–98.

[28] Id. at 403.

[29] Id. at 407.

[30] Id. at 409.

[31] See O’Kane, supra note 1.

[32] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

By Katharine Batchelor

On August 20, 2019, the North Carolina House passed its version of Senate Bill 315, the North Carolina Farm Act of 2019, sending it to the North Carolina Senate for a vote.[1] The bill, intended originally to expand the industrial hemp industry in North Carolina, revises the definition of “hemp product” to exclude smokable hemp, effectively banning smokable hemp.[2] That one revision is currently the source of great debate, with the state’s farmers and agriculture industry on one side and law enforcement on the other.[3] Before explaining the significance of this particular controversy, let me take two steps back and explain the root cause of the conflict.

A Quick Background on Hemp Legislation

In 2014, the 113th Congress passed a bill permitting state departments of agriculture to establish pilot programs for growing industrial hemp, if state law allowed.[4] In 2015, the N.C. General Assembly passed Senate Bill 313 which created the Industrial Hemp Commission to oversee the licensing and regulation of hemp farmers.[5] Since the creation of the Commission, industrial hemp production has boomed, with 634 licensed farmers currently growing on over 8000 acres and 3.4 million square feet of greenhouse space, at a time when the state’s farmers need the bump.[6] The declining demand for tobacco and trade issues with China have hurt North Carolina farmers, who currently produce half of all tobacco in the United States.[7] Hemp production has received another boost on a national-level when President Trump signed the 2018 Farm Bill into law, which reclassified hemp products from a controlled substance to an agricultural commodity.[8]

Is the THC less than 0.3%? Hemp v. Marijuana

Taking one more step back, it is important to understand the difference (and the similarities) between hemp and its closely-related cousin, marijuana. Hemp and marijuana are both part of the cannabis plant family, they are simply two different varieties.[9] There are a few types of hemp, one grown predominately for its seeds, another for its fiber, and another for its floral buds from which CBD is extracted.[10] The latter variety is the kind used for smokable hemp and thus where the problem lies. As the North Carolina State Bureau of Investigation (SBI) put it, “This type looks just like marijuana, including the leaves and buds, and it smells the same as marijuana. In fact, there is no way for an individual to tell the difference by looking at the plant; one would need a chemical analysis to tell the difference.”[11] Indeed, the only difference between hemp and marijuana is the amount of tetrahydrocannabinol, or THC, which is the psychoactive chemical in marijuana that produces a high when smoked.[12] Hemp products must contain 0.3% or less THC; anything greater and it is considered illegal.[13] While the N.C. Department of Agriculture utilizes private labs to test for the percentage of THC, the SBI crime lab currently only tests for the presence of THC and not the percentage of THC.[14] Why does that matter? Two words: probable cause.

The Impact of Hemp on Probable Cause

Under existing North Carolina case law, probable cause only requires law enforcement officers to reasonably believe that there is a “probability or substantial chance” of criminal activity.[15] To seize an item, an officer simply has to believe that it is evidence of a crime.[16] The existence of legal, smokable hemp thus creates a huge issue for the way marijuana is currently policed, investigated, and prosecuted.[17] In State v. Fletcher, the North Carolina Court of Appeals upheld a marijuana conviction based on an officer identifying marijuana visually using her experience and training.[18] Now, however, if an officer cannot distinguish on sight between hemp and marijuana, then that officer does not have probable cause to seize evidence or make an arrest, because the cannabis plant material an officer sees or smells could very well be smokable hemp – a legal commodity people are free to use whenever and wherever.[19]

Law enforcement agencies across the state have acknowledged the impact of smokable hemp on marijuana enforcement.[20] In fact, the SBI stated that at least one district attorney’s office has stopped prosecuting marijuana possession because officers can no longer distinguish hemp from marijuana; thus there is no evidentiary grounds for a conviction.[21] Many have even forecasted that the continued legality of smokable hemp could lead to the legalization of marijuana in North Carolina.[22] While there are tests to determine the amount of THC in a substance, there currently is no field test available to North Carolina law enforcement to use on site and again, the SBI currently only tests for the presence of THC.[23] The visual identification evidence by which so many marijuana cases are prosecuted is no longer available to law enforcement and prosecutors.

Senate Bill 315

In response to law enforcement’s concerns, a Senate subcommittee revised SB 315 to ban smokable hemp on June 6.[24] “Hemp product does not include smokable hemp.”[25] That version of the bill passed the Senate on June 18. Almost immediately, the state’s farmers spoke out in protest with the Industrial Hemp Commission calling on the N.C. General Assembly to keep smokable hemp legal.[26] The smokable hemp bud is more lucrative for farmers and many have already invested in new equipment and seed because the state has been loosening hemp laws since 2015.[27] That single revision, which would go in effect on May 1, 2020, could diminish farmers’ ability to obtain the necessary crop insurance and to compete with other states where smokable hemp is legal.[28]

Nevertheless, SB 315 made its way to the N.C. House where representatives went one step further in response to the impact of smokable hemp on probable cause. Before voting to pass the bill as a whole, the House passed the following amendment to the section titled, “Exclusion or suppression of unlawfully obtained evidence:”[29]

(a1) If evidence was obtained as the result of a search that was supported by probable cause at the time of the search, no evidence obtained as a result of that search shall be suppressed solely on the basis of either of the following:
(1) A subsequent determination that a substance believed to be a controlled substance at the time of the search was not a controlled substance.
(2) A subsequent determination that the presence of a controlled substance at the time of the search was not a violation of law.

In essence, the amendment returns probable cause based on visual identification to law enforcement and allows officers to search and arrest for suspected marijuana using sight and smell alone.[30] Furthermore, the amendment explicitly states that even if officers later determine a substance is a legal hemp product, any evidence found through a search can be used as evidence for other charges: the evidence is not fruit of the poisonous tree.[31] This amendment raises significant constitutional questions regarding legal search and seizure, which at least two Republican representatives highlighted before the House voted on the bill.[32]  The bill was sent to the Senate Committee on Rules and Operations on August 22, which has to approve the current edition before it is sent to the governor.[33]

Whether the current edition[34] of the bill is signed into law remains to be seen. With two of the state’s most influential groups, law enforcement and farmers, on opposing sides, it’s likely that this debate isn’t over quite yet, and SB 315 could evolve once again before it passes into the hands of Roy Cooper.


[1] Dawn Baumgartner Vaughan, NC House Votes for Ban on Smokable Hemp, Reacting to Police Concern Over Pot Arrests, Charlotte Observer (Aug. 21, 2019, 12:12 PM), https://www.charlotteobserver.com/news/politics-government/article234178387.html (quoting Fen Rascoe, a North Carolina Industrial Hemp Commission member and hemp farmer).

[2] S.B. 315 – 10th Ed., Gen. Assemb., 2019 Sess. (N.C. 2019), https://www.ncleg.gov/Sessions/2019/Bills/Senate/PDF/S315v10.pdf.

[3] Vaughan, supra note 1.

[4] Industrial Hemp Pilot Program in North Carolina, N. C. Dep’t of Agric. & Consumer Serv., https://www.ncagr.gov/hemp/index.htm (last visited Sept. 19, 2019).

[5] S.B. 313, Gen. Assemb., 2015 Sess. (N.C. 2015), https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S313v5.pdf.

[6]  Matthew Burns, NC Sees Hemp as Next Big Cash Crop, WRAL (Mar. 20, 2019), https://www.wral.com/nc-sees-hemp-as-next-big-cash-crop/18273125/.

[7] Heather Wilkerson, North Carolina Farmers Embrace Hemp as the Market for Tobacco Dwindles, Green Entrepreneur (June 11, 2019), https://www.greenentrepreneur.com/article/334739; Will Doran, NC Lawmakers See Hemp as the State’s Next Big Cash Crop. But Police are Opposed., Raleigh News & Observer (June 11, 2019, 8:19 PM), https://www.newsobserver.com/news/politics-government/article231439078.html.

[8] John Hudak, The Farm Bill, Hemp Legalization and the Status of CBD: An Explainer, Brookings (Dec. 14, 2018), https://www.brookings.edu/blog/fixgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/.

[9] Industrial Hemp Pilot Program in North Carolina: Frequently Asked Questions, N. C. Dep’t of Agric. & Consumer Serv., https://www.ncagr.gov/hemp/FAQs.htm (last visited Sept. 19, 2019).

[10] Id.

[11] N.C. State Bureau of Investigation, Memo on Industrial Hemp/CBD Issues (May 2019), https://www.sog.unc.edu/sites/www.sog.unc.edu/files/doc_warehouse/NC%20SBI%20-%20Issues%20with%20Hemp%20and%20CBD%20Full.pdf.

[12] Id.

[13] Id.

[14] Id.

[15] State v. Riggs, 328 N.C. 213, 219 (1991).

[16] N.C. State Bureau of Investigation, supra note 11.

[17] Paul A. Specht, Some NC Lawmakers Want to Ban Smokable Hemp. It Looks Too Much Like Marijuana, They Say., Charlotte Observer (July 23, 2019, 7:36 PM), https://www.charlotteobserver.com/news/politics-government/article233012142.html.

[18] State v. Fletcher, 92 N.C. App. 50, 56 (N.C. Ct. App. 1988).

[19] Phil Dixon, Hemp or Marijuana?, U.N.C. Sch. of Gov’t: N.C. Crim. Law (May 21, 2019, 10:14 AM), https://nccriminallaw.sog.unc.edu/hemp-or-marijuana/.

[20] Specht, supra note 17.

[21] N.C. State Bureau of Investigation, supra note 11.

[22] Specht, supra note 17.

[23] N.C. State Bureau of Investigation, supra note 11.

[24] N.C. Senate Comm. on Agric./Env’t/Nat. Resources, PCS 15357 (2019) https://webservices.ncleg.net/ViewBillDocument/2019/4790/0/S315-PCS15357-TQf-5.

[25] Id.

[26] Specht, supra note 17.

[27] Id.

[28] Id.

[29] N.C. House, Amendment A1 to S.B. 315 (2019)  https://webservices.ncleg.net/ViewBillDocument/2019/6292/0/S315-ASA-85-V-1.

[30] Vaughan, supra note 1.

[31] Id.

[32] Id.

[33] Id.

[34] S.B. 315 – 10th Ed., Gen. Assemb., 2019 Sess. (N.C. 2019), https://www.ncleg.gov/Sessions/2019/Bills/Senate/PDF/S315v10.pdf.

by Paul Fangrow

Loss of chance is a hot topic in recent American medical malpractice law. In states where it is accepted, loss of chance is a cause of action in medical malpractice cases that asserts a physician’s negligence reduced a patient’s chance for a better outcome or increased their risk of future harm, when the patient’s existing chance is below 50%.[1] Oregon recently changed sides and accepted loss of chance in 2017.[2] Hawaii, one of the last states remaining where loss of chance had not been addressed, just heard oral argument in the Hawaii Supreme Court on Estate of Frey v. Mastroianni[3] involving loss of chance doctrine.[4] Today, nearly every state has either accepted or rejected the doctrine.[5] North Carolina is now one of only three states that have yet to finally rule on the admissibility of loss of chance claims,[6] but that may change very soon.

Parkes v. Hermann[7] is a North Carolina Court of Appeals case involving loss of chance doctrine with a petition for discretionary review pending before the North Carolina Supreme Court.[8] A patient under the care of Defendant doctor died from a stroke that was misdiagnosed.[9] Proper protocol for a stroke is to administer a type of drug within three hours, which Defendant doctor did not do.[10] Issuing the drug within three hours of a stroke results in a 40% chance of a better outcome.[11] Under current North Carolina law, a patient must have a greater than 50% chance of a better outcome to prove that Defendant doctor more likely than not caused the patient’s injury.[12] The North Carolina Court of Appeals rejected loss of chance as a recognized claim,[13] marking Parkes v. Hermann as the first time a North Carolina court explicitly ruled on the admissibility of a loss of chance claim.[14]

In states that have accepted loss of chance doctrine, an injury resulting in a less than a 50% chance of recovery is still a valid cause of action.[15] Two distinct theories have arisen in the state courts: a causation approach first adopted in Pennsylvania,[16] and an injury approach popularized by professor Joseph King, Jr.[17] This is the approach adopted by Oregon[18] and is under consideration in both Hawaii[19] and North Carolina.[20] The causation approach takes cues from Section 323(a) of the Second Restatement of Torts,[21] and lowers the threshold of proof required to submit the question of proximate cause to the jury.[22] The jury is then called on to decide whether the defendant’s negligence was a substantial factor in bringing about the eventual harm.[23] By contrast, the injury approach recharacterizes the harm that recovery is sought for as the loss of chance itself, not the eventual harm.[24] Under this approach, a plaintiff seeks to prove by a preponderance of evidence that the defendant’s negligence resulted in the plaintiff’s loss of chance for a better outcome, or increased their risk of future harm.[25] In almost all states that have adopted loss of chance in some form, a proportional damages formula is used where if the claim is successful, the plaintiff recovers the percentage of chance lost multiplied by the value of what a full recovery would be.[26] That way, the plaintiff only recovers for the harm that the defendant’s negligence actually caused.[27]

The central reasoning for adopting loss of chance doctrine is to alleviate the harshness of the traditional approach.[28] Under the traditional approach currently followed by North Carolina, a plaintiff cannot recover anything unless they prove a doctor’s negligence more likely than not caused the eventual harm suffered.[29] Put into loss of chance terms, a plaintiff does not recover unless the loss of chance suffered is greater than 50%.[30] Thus, even though the patient in Parkes v. Hermann would have had a 40% chance of a better outcome had Defendant doctor correctly diagnosed the patient’s stroke and followed protocol, the patient is categorically barred from any recovery. If this arrangement seems unfair, many states agree that it is.[31] At present, twenty-five states have accepted loss of chance in either theory.[32] Hawaii may very well make it twenty-six.[33]

North Carolina has the opportunity to become the twenty-seventh[34] state to adopt loss of chance as a compensable claim in medical malpractice cases, but there are troublesome rumblings that suggest an uphill battle for loss of chance advocates. The sheer brevity of the Parkes v. Hermann opinion is one indicator. While the court in Estate of Frey v. Mastroianni took care to analyze both loss of chance theories, debate their merits, and cite case law from dozens of other jurisdictions,[35] the court in Parkes v. Hermann issued a very short and curt opinion comprised of only six paragraphs of analysis.[36] The court only cited a single case with reference to the various approaches adopted in each state.[37] The reasoning given for rejecting loss of chance was that no North Carolina case was cited that recognized such a claim, but this is to be expected when North Carolina courts have never taken any position regarding loss of chance until Parkes v. Hermann, rendering this reasoning entirely circular. While the court points to Gower v. Davidian[38]—a North Carolina Supreme Court case from 1937—to support a broad claim that “[t]he rights of the parties cannot be determined upon chance,”[39] this seems a thin reed upon which to hang the resolution of the loss of chance issue in light of the Gower court’s explicit statement that there was no evidence that loss of chance even occurred.[40] Besides, advances in medical technology made in the last eighty years have enabled expert witnesses to testify to reasonable medical certainty about the chances of recovery are in a wide variety of scenarios, and courts already rely wholly on chance to determine whether a patient had a 51% or more chance of making a recovery to establish proximate cause.

It seems like the court has no desire to seriously engage with the merits of the debate on loss of chance. Both the majority opinion and the concurrence written by Judge Berger cite dicta from Curl v. American Multimedia, Inc.[41] for the proposition that “recognition of a new cause of action is a policy decision which falls within the province of the legislature.”[42] While this is not a new idea even where loss of chance is concerned, [43] the underlying reason given for requiring legislative action is usually the presence of a conflict between loss of chance and a current medical malpractice statute.[44] The Parkes v. Hermann opinion contains no discussion of any conflict with existing North Carolina medical malpractice law.

In the absence of any statutory conflicts, there is no reason for the judiciary to paralyze itself regarding its own common law. Ever since the founding of the country, courts across the United States have interpreted statutes and maintained their common law without legislative handholding. In the wake of rapid technological progress that puts the legal community in a constant state of catch-up, courts cannot afford to tentatively wait for the legislature on every difficult question of evolving legal doctrine. A substantial majority of states that have both accepted and rejected loss of chance did so without any prior legislative direction.[45] Further, nothing stops the legislature from stepping in after the fact and reverting the law back to the traditional approach should it want to. Lord v. Lovett,[46] Jorgenson v. Vener,[47] and Falcon v. Memorial Hospital[48]are all state supreme court decisions that adopted loss of chance and were subsequently superseded by statutes passed by their respective state legislatures.

Parkes v. Hermann is a case of first impression in the North Carolina courts. Hopefully, the North Carolina Supreme Court considers the issues presented with greater care.


[1] See Joseph H. King, Jr., “Reduction of Likelihood” Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. Mem. L. Rev. 491, 508–511 (1998).

[2] Smith v. Providence Health & Servs.-Or., 393 P.3d 1106, 1121 (Ore. 2017).

[3] No. CAAP-14-0001030, 2018 Haw. Ap. LEXIS 327 (Haw. Ct. App. June 29, 2018), cert. granted, No. SCWC-14-0001030, 2018 Haw. LEXIS 255 (Haw. Nov. 29, 2018).

[4] Oral Argument, Estate of Frey v. Mastroianni, No. SCWC-14-0001030 (Haw. argued Feb. 12, 2019), http://oaoa.hawaii.gov/jud/oa/19/SCOA_022119_SCWC_14_1030.mp3.

[5] See Lauren Guest et al., The “Loss of Chance” Rule as a Special Category of Damages in Medical Malpractice: A State-by-State Analysis, 21 J. Legal Econ. 53, 59 (2015).

[6] Id.

[7] 828 S.E.2d 575 (N.C. Ct. App. 2019).

[8] Petition for Discretionary Review, Parkes v. Hermann, No. 241P19 (N.C. filed July 5, 2019), https://www.ncappellatecourts.org/show-file.php?document_id=250145.

[9] Parkes, 828 S.E.2d at 576.

[10] Id.

[11] Id.

[12] Id. at 577.

[13] Id. at 578.

[14] Bennett v. Hospice & Palliative Care Ctr. of Alamance Caswell, 783 S.E.2d 260, 261–62 (N.C. Ct. App. 2016) (pro se plaintiff did not attach Rule 9(j) certification to complaint, among other errors); Curl v. Am. Multimedia, Inc., 654 S.E.2d 76, 80–81 (N.C. Ct. App. 2007) (loss of chance not asserted in the complaint); Franklin v. Britthaven, Inc., No. COA05-1603, 2006 N.C. App. LEXIS 2119, at *12–13 (loss of chance not considered because plaintiff did not raise it at trial).

[15] See Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1364 (1981).

[16] Hamil v. Bashline, 392 A.2d 1280, 1286–90 (Pa. 1978).

[17] See King, supra note 14, at 1365–76 (for an in-depth explanation of the injury approach to loss of chance).

[18] Smith v. Providence Health & Servs.-Or., 393 P.3d 1106, 1112–17 (Ore. 2017) (discussing and rejecting the causation approach while adopting the injury approach).

[19] Estate of Frey v. Mastroianni, No. CAAP-14-0001030, 2018 Haw. Ap. LEXIS 327, at *13–15 (Haw. Ct. App. June 29, 2018) (agreeing with courts that have adopted the injury approach).

[20] Parkes v. Hermann, 828 S.E.2d 575, 577 (N.C. Ct. App. 2019) (“The question presented is whether her loss of this 40% chance, itself, is a type of injury for which Ms. Parkes can recover.”).

[21] Restatement (Second) of Torts § 323(a) (Am. Law Inst. 1965).

[22] Hamil, 392 A.2d at 1286 (“We agree . . . that the effect of § 323(a) is to relax the degree of certitude normally required of plaintiff’s evidence in order to make a case for the jury as to whether a defendant may be held liable . . . .”).

[23] Id. at 1288 (“[S]uch evidence furnishes a basis for the fact-finder to go further and find that such an increased risk was in turn a substantial factor in bringing about the resultant harm . . . .”).

[24] Parkes, 828 S.E.2d at 575 (“[Plaintiff] argues, however, that she has suffered a different type of injury for which she is entitled to recovery; namely, her “loss of chance” of a better neurological outcome.”).

[25] Smith v. Providence Health & Servs.-Or., 393 P.3d 1106, 1114 (Ore. 2017) (“[T]reating loss of chance as a theory of injury does not dispense with causation requirements, but instead shifts the causation inquiry to whether a defendant caused the opportunity of a better outcome to be lost . . . .”).

[26] See, e.g., King, supra note 14, at 1382 (“The value placed on the patient’s life would reflect such factors as his age, health, and earning potential, including the fact that he had suffered the heart attack and the assumption that he had survived it. The 40% computation would be applied to that base figure.”).

[27] See, e.g., Estate of Frey v. Mastroianni, No. CAAP-14-0001030, 2018 Haw. Ap. LEXIS 327, at *14 (Haw. Ct. App. June 29, 2018) (“As such, damages are then limited only to those proximately caused by the medical provider’s breach of duty.”).

[28] See, e.g., King, supra note 14, at 1381 (“In summary, the all-or-nothing approach to the loss of a chance irrationally and unfairly denies the reality of chance as an appropriately cognizable interest in the torts system.”).

[29] Parkes, 828 S.E.2d at 577 (“To establish proximate cause, the plaintiff must show that the injury was more likely than not caused by the defendant’s negligent conduct.”).

[30] Id. at 578 (“Under the “traditional” approach, a plaintiff may not recover for the loss of less than 50% chance of a healthier outcome.”).

[31] See Guest, supra note 4, at 59 (note all the states in the “accepted” category).

[32] Id. (note that since this article was written, Oregon accepted loss of chance doctrine to make 25 states).

[33] See generally Oral Argument, supra note 4.

[34] Assuming Hawaii also adopts the doctrine.

[35] Estate of Frey v. Mastroianni, No. CAAP-14-0001030, 2018 Haw. Ap. LEXIS 327, at *8–18 (Haw. Ct. App. June 29, 2018).

[36] Parkes v. Hermann, 828 S.E.2d 575, 577–78 (N.C. Ct. App. 2019).

[37] Id. at 577 (the cited case is Valadez v. Newstart, No. W2007-01550-COA-R3-CV, 2008 Tenn. App. LEXIS 683 (Tenn. Ct. App. Nov. 7, 2008)).

[38] 193 S.E. 28 (N.C. 1937).

[39] Id. at 30.

[40] Id. at 30–31 (“The evidence discloses that the use of modern equipment and methods by trained and skillful surgeons . . . has availed nothing. . . . Unfortunately, upon this record as it now appears, the plaintiff has suffered an injury that could not then and cannot now be relieved by the medical profession.”)

[41] 654 S.E.2d 76 (N.C. Ct. App. 2007).

[42] Id. at 81. (quoting Ipock v. Gilmore, 354 S.E.2d 315, 317 (N.C. Ct. App. 1987)).

[43] Smith v. Parrott, 833 A.2d 843, 848 (Vt. 2003) (“[W]e are persuaded that the decision to expand the definition of causation and thus the potential liability of the medical profession in Vermont “involves significant and far-reaching policy concerns” more properly left to the Legislature . . . .”).

[44] Id. (“Plaintiff urges us nevertheless to depart from the strict statutory requirements, noting that they were codified in 1976, well before “loss of chance” became a recognized as a viable theory of recovery.”) (emphasis added).

[45] See Guest, supra note 4, at 63–103 (tables showing authority from each state jurisdiction and the reason behind adoption or rejection of loss of chance doctrine).

[46] 770 A.2d 1103 (N.H. 2001) (superseded by a 2003 amendment to N.H. Rev. Stat. Ann. § 507-E:2 (2019)).

[47] 616 N.W.2d 366 (S.D. 2000) (abrogated by S.D. Codified Laws § 20-9-1.1 (2019)).

[48] 462 N.W.2d 44 (Mich. 1990) (superseded by a 1993 amendment to Mich. Comp. Laws. § 600.2912a (2019)).

By Michael Johnston

When Shawn Ellis extended his middle finger while riding in the passenger seat of a vehicle on U.S. Highway 52, he likely did not know that he would become involved in the latest of a string of appellate cases on the First Amendment.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .”[1] Freedom of speech under the First Amendment was incorporated against the states via the Fourteenth Amendment, limiting the ability of the states to restrict freedom of speech under the United States Constitution.[2] Expressive conduct outside of verbal speech can also merit First Amendment protections if there is an intent to convey a particularized message and there is a great likelihood that the message will be understood by those who view it in the surrounding circumstances.[3]

The extension of one’s middle finger, colloquially known as shooting or flipping the bird,[4] has a long history of being used to express emotions ranging from anger and protest to comfort and familiarity.[5] While this gesture can be used to express contempt, several courts have been reluctant to conclude that the middle finger gesture falls into a category of unprotected speech that can be prosecuted.[6] For example, the Sixth Circuit recently determined that a police officer did not have reasonable suspicion or probable cause of criminal activity to stop plaintiff a second time simply because she extended her middle finger after the first stop.[7] The court reasoned that the plaintiff violated no identified law and that “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”[8]

Fighting words, however, are one exception to the First Amendment; they are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[9] The Supreme Court further explained that fighting words are not essential to the discussion of ideas, and any benefit to the social discourse derived from them is outweighed by society’s interest in morality and order.[10] Despite the expressive value of extending one’s middle finger, courts are more willing to conclude that the gesture can support a disorderly conduct charge if there are other disruptive circumstances or if a third party can testify that they felt offended or threatened.[11] For example, the Third Circuit held that a police officer had probable cause to charge plaintiff with disorderly conduct under the totality of the circumstances, namely the plaintiff’s display of his middle finger and aggressive driving directed at another driver on the road.[12] With additional disruptive circumstances, a court is more likely to conclude that the speech constitutes fighting words and that the person using such speech can be charged with disorderly conduct.[13] For expressive purposes, disorderly conduct statutes have been limited by the Supreme Court to the proscription of fighting words.[14]

In State v. Ellis,[15] the defendant was stopped by a police officer after the officer observed the defendant extending his middle finger in the officer’s general direction.[16] The defendant was initially using a waving gesture as his vehicle drove past the stopped officer, but after the defendant’s vehicle passed the officer, the defendant changed his gesture to an extended middle finger.[17] There were other vehicles moving down the highway near the defendant’s vehicle.[18] In its initial opinion, the North Carolina Court of Appeals concluded that this conduct was sufficient for an officer to have reasonable suspicion of disorderly conduct.[19] The panel then withdrew its initial opinion and substituted it with another opinion; the panel majority clarified that the officer had reasonable suspicion of disorderly conduct because there was an objective basis to believe that the defendant’s gesture could have been directed at a third party and that the changing gestures suggested that the potential disorderly conduct was escalating.[20] While the court noted cases concluding that giving a middle finger to law enforcement is protected by the First Amendment, the court distinguished them by concluding that the possibility that defendant’s middle finger could have been directed at a third party was a sufficient basis for reasonable suspicion for disorderly conduct.[21] According to the court, this reasonable suspicion justified the stop and later justified the defendant’s charge and conviction of resisting, delaying, or obstructing a public officer for failing to provide his identification.[22]

The standard for a police officer to conduct a traffic stop is reasonable suspicion of criminal activity,[23] which is a lower standard than probable cause of criminal activity.[24] For reasonable suspicion, the police officer must, under the totality of the circumstances, have specific and articulable facts supporting a suspicion of criminal activity.[25] An innocent explanation for suspicious conduct does not defeat reasonable suspicion,[26] and innocent conduct can contribute to reasonable suspicion under the totality of the circumstances.[27]

However, as the dissenting opinion notes, the majority’s opinion in Ellis seems to disregard the First Amendment protections for defendant’s speech.[28] There is a sizeable amount of authority from around the United States concluding that extending one’s middle finger in the presence of third parties does not constitute disorderly conduct under the First Amendment.[29] Furthermore, there is also authority concluding that simply displaying one’s middle finger is insufficient for reasonable suspicion of criminal activity under the First Amendment.[30] In both Cruise-Gulyas v. Minard[31] and Ellis, for example, an officer stopped someone after they displayed their middle finger in the direction of the officer.[32] While the Sixth Circuit concluded that the officer in Cruise-Gulyas lacked reasonable suspicion to stop the plaintiff in response to the gesture under the First Amendment, the court of appeals in Ellis distinguished Cruise-Gulyas on the basis that it was unclear whom the gesture was directed at in Ellis, even though it seems unlikely that there were no other drivers on the street who might have seen the gesture in Cruise-Gulyas.[33] Just as there was no reasonable suspicion of criminal activity and “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment” in Cruise-Gulyas,[34] the same should be true in Ellis. Furthermore, other courts have viewed the middle finger as sufficient for reasonable suspicion or probable cause of criminal activity only when there are other disruptive circumstances associated with the conduct or a third party can testify that they felt offended or threatened.[35] Unlike in Favata v. Seidel,[36] there were no other disruptive circumstances in Ellis, such as reckless driving, to justify reasonable suspicion or probable cause of disorderly conduct.[37] The Ellis opinion does find some support in North Carolina case law, but one of the more helpful cases for the Ellis opinion is also likely inconsistent with other authorities interpreting the First Amendment.[38]

On a practical note, the Ellis opinion will give law enforcement broader discretion to stop people, even if the stops are only motivated by personal animus. While the motivation of an officer might not be legally relevant when determining whether the officer had reasonable suspicion,[39] such stops can undermine community faith in law enforcement.[40] To justify such a stop, an officer would only need to claim that the offensive conduct of the defendant occurred in the presence of a third party. As in Ellis, the State would not need to provide evidence that the third party was actually offended by the gesture or even observed the gesture.[41] If the analysis of this question focused purely on reasonable suspicion standards under North Carolina law, this outcome might be logical due to the lower standard required for reasonable suspicion. However, in light of the protections for expressive conduct under the First Amendment, law enforcement officers stopping someone simply for using expressive, albeit distasteful, conduct in the presence of others is inconsistent with our constitutional freedoms and history.[42] Given our nation’s long history of protecting dissident speech under the First Amendment even when it happens to be offensive, extending a middle finger should not be a criminal offense, and it should not be treated as reasonable suspicion of a criminal offense simply because a third party might have seen it.

Mr. Ellis is in the process of appealing the panel’s decision.[43] In light of this appeal, the North Carolina Supreme Court should establish that the First Amendment protects expressive conduct in the form of extending a middle finger in public.


[1] U.S. Const. amend. I.

[2] U.S. Const. amend XIV, § 1; see Stromberg v. California, 283 U.S. 359, 368–70 (1931); Gitlow v. New York, 268 U.S. 652, 666 (1925).

[3] See Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 411–12 (1974)).

[4] See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1405–06 (2008).

[5] See id. at 1407–10.

[6] See Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (holding that traffic stop was not lawful because plaintiff giving officer middle finger while riding in vehicle did not create a reasonable suspicion of criminal activity); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) (holding that vehicle passenger’s use of profanity and display of middle finger to police officer protected by the First Amendment); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); Brown v. Wilson, No. 1:12-CV-1122-DAE, 2015 U.S. Dist. LEXIS 88871, at *8–14 (W.D. Tex. July 9, 2015) (holding that plaintiff’s middle finger to police officer while driving was not in violation of Texas’s disorderly conduct statute and did not fall under the fighting words exception to the First Amendment because there was no indication of actual or threatened violence tending to incite an immediate breach of the peace); Corey v. Nassan, No. 05-114, 2006 U.S. Dist. LEXIS 68521, at *23–37 (W.D. Pa. Sept. 25, 2006) (holding that plaintiff’s alleged raising of his middle finger to police officer while driving was protected by the First Amendment in part because of the absence of “some particularized showing that the gesture in the specific factual context constitutes ‘fighting words’ or is otherwise illegal”); Perkins v. City of Gahanna, No. C2-99-533, 2000 U.S. Dist. LEXIS 23209, at *5–11 (S.D. Ohio Sept. 21, 2000) (holding that plaintiff’s display of middle finger to police officer as he was leaving a police station was protected by the First Amendment and not disorderly conduct); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1101, 1110 (W.D. Ark. 2000) (holding that officer improperly charged plaintiff with disorderly conduct after officer observed plaintiff display his middle finger while driving because the disorderly conduct statute, Ark. Code Ann. § 5-71-207(a)(3), was limited to fighting words and the display of one’s middle finger did not constitute fighting words); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Cook v. Bd. of the Cty. Comm’rs, 966 F. Supp. 1049, 1052 (D. Kan. 1997) (holding that “the Court cannot infer that a reasonable police officer would necessarily believe that plaintiff was engaged in disorderly conduct or that — in light of clearly established law and the information known to Officer Drake — a reasonable police officer would have had probable cause to arrest plaintiff and charge him with disorderly conduct in violation of Kansas Law” when plaintiff displayed his middle finger while driving past officer’s parked patrol car); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct under the First Amendment, only criminalized fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); In re Fechuch, No. 2005 AP 02 0012, 2005 Ohio App. LEXIS 3941, at *3–9 (Ohio Ct. App. Aug. 16, 2005) (holding that there was insufficient evidence to support defendant’s conviction for disorderly conduct because defendant’s use of profanity and her middle finger did not constitute fighting words under the First Amendment as they were not inherently likely to provoke a violent reaction from the ordinary citizen); Coggin v. State, 123 S.W.3d 82, 87–88, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[7] See Cruise-Gulyas, 918 F.3d at 497.

[8] See id.

[9] See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (footnote omitted).

[10] See id.

[11] See Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); City of Akron v. Lorenzo, No. 20475, 2001 Ohio App. LEXIS 4327, at *8 (Ohio Ct. App. Sept. 26, 2001) (holding that it was not a manifest miscarriage of justice for a trial court to find defendant guilty of disorderly conduct under fighting words exception because defendant repeatedly shouted profanities at officers and displayed his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words); In re S.J.N-K., 647 N.W.2d 707, 711–13 (S.D. 2002) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct under the fighting words exception after defendant repeatedly displayed middle finger and mouthed profanity to school principal while following principal in car); Estes v. State, 660 S.W.2d 873, 874–75 (Tex. App. 1983) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct after defendant displayed his middle finger to high school principal and principal resisted “animal instinct to retaliate” because the gesture could have constituted fighting words to an average person).

[12] See Favata, 511 F. App’x at 156–57, 159–60.

[13] See, e.g., Wood, 679 N.E.2d at 739–40 (holding that defendant’s conviction for disorderly conduct proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[14] See Gooding v. Wilson, 405 U.S. 518, 527–28 (1972); State v. Summrell, 192 S.E.2d 569, 574–76 (N.C. 1972), overruled in part on other grounds in State v. Barnes, 380 S.E.2d 118, 119 (N.C. 1989).

[15] No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019) petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019). While this case was officially filed for publication by the North Carolina Court of Appeals on August 20, 2019, it has not been given an official reporter designation at the time of this publication.

[16] Id. at *7–8.

[17] Id.

[18] Id. at *6.

[19] N.C. Gen. Stat. § 14-288.4(a)(2) (2017); State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 628, at *6–8 (N.C. Ct. App. Aug. 6, 2019), withdrawn (Aug. 13, 2019), modified, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[20] Ellis, 2019 N.C. App. LEXIS 713, at *9–11.

[21] Id.

[22] See id. at *9–12.

[23] See State v. Barnard, 658 S.E.2d 643, 645 (N.C. 2008).

[24] See State v. Johnson, 803 S.E.2d 137, 139 (N.C. 2017).

[25] See Terry v. Ohio, 392 U.S. 1, 20–22 (1968); State v. Styles, 665 S.E.2d 438, 443–40 (N.C. 2008).

[26] See United States v. Arvizu, 534 U.S. 266, 277 (2002); State v. Williams, 726 S.E.2d 161, 167 (N.C. Ct. App. 2012).

[27] See United States v. Sokolow, 490 U.S. 1, 9–11 (1989); Terry, 392 U.S. at 22.

[28] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *22 (N.C. Ct. App. Aug. 20, 2019) (Arrowood, J., dissenting), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[29] See Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct, only criminalizes fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); Coggin v. State, 123 S.W.3d 82, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[30] See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Sandul, 119 F.3d at 1255.

[31] 918 F.3d 494 (6th Cir. 2019).

[32] See id. at 497; Ellis, 2019 N.C. App. LEXIS 713, at * 7–8.

[33] See Cruise-Gulyas, 918 F.3d at 495–97; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[34] See Cruise-Gulyas, 918 F.3d at 497.

[35] See, e.g., Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[36] 511 F. App’x. 155 (3d Cir. 2013).

[37] See id. at 156–57, 159–60; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[38] See In re V.C.R., 742 S.E.2d 566, 568, 570–71 (N.C. Ct. App. 2013) (holding that officer had reasonable suspicion to seize teenage defendant for disorderly conduct under N.C. Gen. Stat. § 14-288.4(a)(2) after officer began driving away and defendant said, “What the fuck, man?”). It is unlikely that a reasonable person would sincerely believe that a teenager’s use of what was likely rhetorical profanity amongst friends would be plainly likely to provoke violent retaliation and thereby cause a breach of the peace. Furthermore, such speech is likely protected by the First Amendment. Compare id., with Cruise-Gulyas, 918 F.3d at 497 (holding that officer’s second stop of plaintiff after plaintiff extended her middle finger was not based on reasonable suspicion of any criminal act and that plaintiff’s gesture was protected under the First Amendment).

[39] See Whren v. United States, 517 U.S. 806, 813 (1996); State v. Nicholson, 813 S.E.2d 840, 846 (N.C. 2018).

[40] See Albert J. Reiss, Jr., The Police and the Public 175–76 (1971).

[41] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *2–3 (N.C. Ct. App. Aug. 20, 2019); id. at *22 (Arrowood, J., dissenting).

[42] See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989); Cohen v. California, 403 U.S. 15, 25–26 (1971).

[43] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

By Samuel Gilleran

In a sweeping, 357-page ruling released yesterday afternoon, a three-judge panel of North Carolina Superior Court judges unanimously held that partisan gerrymandering violates multiple provisions of the North Carolina Constitution,[1] including the Equal Protection Clause,[2] the Free Elections Clause,[3] and the Freedom of Speech and Freedom of Assembly Clauses.[4]

The panel then proceeded to enjoin the use of the maps in the 2020 primary and general elections, ordered the General Assembly to enact new maps within two weeks, and forbade the use of “[p]artisan considerations and election results data.”[5] The panel further decreed that the General Assembly could not use the current map “as a starting point for drawing new districts, and no effort may be made to preserve the cores of invalidated 2017 districts.”[6] The panel forbade the use of outside consultants without Court approval and demanded that “the entire remedial process” must occur “in full public view. At a minimum, this requires all map drawing to occur at public hearings, with any relevant computer screen visible to legislators and public observers.”[7] Finally, the panel “retain[ed] jurisdiction” to adjust the dates of the 2020 primary elections in the event that such an adjustment was “necessary to provide effective relief in this case.”[8]

The panel noted that the allegations of partisan gerrymandering were essentially uncontested.[9] After all, in the related redrawing of the congressional district lines, Rep. David Lewis (R-Harnett), a leader in the Republican redistricting effort, plainly stated his belief that a “political gerrymander [was] not against the law” in urging the adoption of a map that would “give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”[10] The real question at issue was whether such gerrymandering was both proscribed under the North Carolina Constitution and justiciable by the North Carolina courts. The panel answered both questions affirmatively.

Before the panel expounded its holdings under the state constitution, it first explained why the Supreme Court’s opinion in Rucho v. Common Cause[11] did not control. As the panel noted, the Supreme Court explicitly reserved the issue of partisan gerrymandering for state review. It quoted the high court’s assertion that its opinion in Rucho did “not condone excessive partisan gerrymandering” and did not “condemn complaints about districting to echo into a void.”[12] “Rather, the Supreme Court held, ‘[t]he States . . . are actively addressing the issue on a number of fronts,’ and ‘[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.’”[13] The panel held that such provisions were present in North Carolina’s constitution.

First, the panel examined the Free Elections Clause. It noted that this clause “is one of the clauses that makes the North Carolina Constitution more detailed and specific than the federal Constitution in the protection of the rights of its citizens.”[14] The panel traced the evolution of the Free Elections Clause throughout the history of North Carolina’s legal system and concluded that it provides a justiciable right to North Carolinians; it is not merely hortatory or aspirational language.[15] It specifically pointed to a 1971 revision of the state constitution in which the wording of the clause was changed from “all elections ought to be free” to “all elections shall be free.”[16] “This change was intended to ‘make [it] clear’ that the Free Elections Clause and the other rights secured to the people by the Declaration of Rights ‘are commands and not mere admonitions’ to proper conduct on the part of the government.”[17]

The panel went on to hold that “[t]he partisan gerrymandering of the 2017 Plans strikes at the heart of the Free Elections Clause. . . . Elections are not free when partisan actors have tainted future elections by specifically and systematically designing the contours of the election districts for partisan purposes and a desire to preserve power. In doing so, partisan actors ensure from the outset that it is nearly impossible for the will of the people—should that will be contrary to the will of the partisan actors drawing the maps—to be expressed through their votes for State legislators.”[18]

In holding that North Carolina’s Free Elections Clause proscribed partisan gerrymandering, the panel’s logic tracked that of the Pennsylvania Supreme Court, which in 2018 held that a similar clause in that state’s constitution forbade partisan gerrymandering.[19] In that case, the court overturned a Republican gerrymander of Pennsylvania’s congressional districts; in the ensuing election, Democrats flipped three seats and came within 11,239 votes in three more.[20] Were it not for Pennsylvania’s political geography, in which there are 260,000 excess Democratic votes in the 3rd Congressional District (Philadelphia), Democrats could have won even more seats.[21]

Second, the panel examined North Carolina’s Equal Protection Clause.[22] The panel noted that the state version of the clause has been interpreted more broadly than the federal courts have interpreted the federal clause.[23] And so the panel relied on previous state supreme court precedents to explicate that North Carolina’s Democratic voters were being treated unequally and that because the fundamental right to vote was implicated, strict scrutiny applied.[24]

Third, the panel turned to the Free Speech and Free Assembly claims. The panel held that “the 2017 Plans discriminate[d] against . . .  Democratic voters based on their protected expression and association” and that “[d]iscriminating against citizens based on their political beliefs does not serve any legitimate government interest.”[25] The panel also held that the 2017 plans were unconstitutional under a retaliation theory of the Free Speech and Free Assembly Clauses; because Democratic voters had past protected political activity (i.e., voting for Democratic candidates) and because Republican mapmakers had chosen Democrats for negative treatment based on their protected activity, a retaliation claim was successful.[26]

Finally, the panel had to decide whether the claims were justiciable. After all, the Supreme Court had essentially held just a few months prior that while partisan gerrymandering was bad behavior, it was powerless to stop it due to a lack of judicially manageable standards. The panel held that the question of partisan gerrymandering did not fall within the political question doctrine; it is justiciable.[27] The panel specifically noted that one of the main purposes of the judicial branch of government was to be a check on the legislature’s desire to aggrandize power to itself. Citing a case from 1787, dating all the way back to the founding of the Republic, the panel declared:

“If unconstitutional partisan gerrymandering is not checked and balanced by judicial oversight, legislators elected under one partisan gerrymander will enact new gerrymanders after each decennial census, entrenching themselves in power anew decade after decade. When the North Carolina Supreme Court first recognized the power to declare state statutes unconstitutional, it presciently noted that absent judicial review, members of the General Assembly could ‘render themselves the Legislators of the State for life, without any further election of the people.’ Those legislators could even ‘from thence transmit the dignity and authority of legislation down to their heirs male forever.’ Extreme partisan gerrymandering reflects just such an effort by a legislative majority to permanently entrench themselves in power in perpetuity.”[28]

Notably, the panel rejected the argument that because gerrymandering had a long history, it was therefore constitutional. Citing to the seminal voting rights case Reynolds v. Sims, the panel stated that “widespread historical practices does not immunize governmental action from constitutional scrutiny.”[29] Merely because a practice was longstanding – and even, as in this case, engaged in by one of the Plaintiffs (i.e., the North Carolina Democratic Party) during the many years when it was in power – does not somehow eliminate the rights reserved by North Carolinians under the state constitution. The panel also rejected the idea that it needed to find a bright-line rule for how much partisan gerrymandering was too much, the question that so plagued the Supreme Court in Rucho. Instead, the panel stated the obvious: “[t]his case is not close.”[30] In essence, the panel held that, wherever the line is, this set of facts is so far past that line that Plaintiffs’ entitlement to relief is indisputable.

The reaction to the panel’s decision was swift. Sen. Jeff Jackson (D-Mecklenburg) tweeted that the ruling was “the single best news [he] ha[d] ever heard” during his time in the legislature,[31] while Rep. Graig Meyer (D-Orange) called the ruling “a big win for democracy and a game changer for 2020.”[32] But the biggest news came from Republican Senate Majority Leader Phil Berger (R-Rockingham), who announced that Republicans would not appeal the decision to the state Supreme Court. Although castigating the panel’s decision, Sen. Berger stated that “[n]early a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point. It’s time to move on. To end this matter once and for all, we will follow the court’s instruction and move forward with adoption of a nonpartisan map.”[33] Election law scholar Rick Hasen suggested a few reasons why Republicans elected not to appeal, including the simple facts of sure loss in the North Carolina Supreme Court and the greater precedential value of the inevitable negative decision from that court.[34]

What are the practical ramifications of this decision? For the first time in a long time, Democrats truly believe they can win back majorities in each house of the legislature.[35] Republicans currently maintain a 65-55 margin in the state house, and given the sheer number of districts identified in the decision as unconstitutionally gerrymandered, Democrats have to feel good about the prospects of taking back at least that chamber. Democrats carried a majority of the two-party vote in 2018,[36] and it is historically likely that the electorate in 2020, a presidential year, will be younger and more racially diverse than in 2018, a midterm year.[37]

Judging from the simulations run by political scientists and adjusting for a 2020 political environment, Democrats have a strong chance at flipping House seats in Columbus County,[38] Cumberland County,[39] Franklin County,[40] Pitt County,[41] Guilford County,[42] Forsyth County (possibly two)[43], New Hanover County,[44] Onslow County,[45] Anson County,[46] and Alamance County.[47] If Democrats were able to flip even six of these eleven targets, it would give them a 61-59 majority in the state house, all other things being equal.

Similarly, on the Senate side, Republicans retain a 29-21 majority, so the Democrats would have to flip five seats. The panel’s ruling gives Democrats a reasonable chance at flipping seats in Mecklenburg County[48] and Wake County,[49] but in other gerrymandered districts that would be unwound by the ruling, such as in Guilford County and New Hanover County, Democrats managed to defeat the gerrymander in 2018. That said, unwinding the gerrymander makes the playing field different and, in a good year, could allow Democrats to take Senate seats that they ordinarily would not. In addition, when decennial redistricting occurs in 2021 after the 2020 census, it could be that a few seats will shift from rural to suburban and urban areas, thereby helping Democratic chances moving forward.


[1] Common Cause v. Lewis, No. 18-cv-14001, slip op. at 352–53 (N.C. Super. Ct. [Wake] Sep. 3, 2019), https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf.

[2] N.C. Const. art. I, § 19.

[3] N.C. Const. art. I, § 10.

[4] N.C. Const. art. I, §§ 12, 14.

[5] Common Cause, slip op. at 353–55.

[6] Id. at 355.

[7] Id. at 356.

[8] Id. at 357.

[9] Id. at 23.

[10] Hearing Before the J. Comm. on Redistricting, Extra Sess. 48, 50 (N.C. Feb. 16, 2016) (statement of Rep. David Lewis, Co-Chair, J. Comm. on Redistricting), redistricting.lls.edu/files/NC%20Harris%2020160216%20Transcript.pdf.

[11] 139 S. Ct. 2484 (2019) (holding partisan gerrymandering non-justiciable under the federal Constitution).

[12] Common Cause, slip op. at 299 (quoting Rucho, 139 S. Ct. at 2507).

[13] Id. (emphasis added in Common Cause).

[14] Id.

[15] Id. at 303–04.

[16] Id. at 304 (emphasis added in Common Cause) (quoting N.C. Const.  art I, § 10) (comparing 1868 version to 1971 version).

[17] Id. (quoting N.C. State Bar v. DuMont, 304 N.C. 627, 635, 639, 286 S.E.2d 89, 94, 97 (1982)).

[18] Id. at 305.

[19] See League of Women Voters of Pa. v. Commonwealth, 178 A.3d 737, 804 (Pa. 2018).

[20] Pennsylvania Election Results, N.Y. Times (last updated Dec. 19, 2018, 5:12 PM), https://www.nytimes.com/interactive/2018/11/06/us/elections/results-pennsylvania-elections.html.

[21] Id.

[22] Common Cause, slip op. at 307.

[23] Id. at 308–09.

[24] Id. at 315–16.

[25] Id. at 328.

[26] Id. at 329–31.

[27] Id. at 334.

[28] Id. at 333 (quoting Bayard v. Singleton, 1 N.C. 5, 7 (1787)).

[29] Id. (citing Reynolds v. Sims, 377 U.S. 533, 582 (1964) (invalidating Alabama’s malapportioned legislative districts despite a history of malapportionment that dated back to the founding). North Carolina itself engaged in such malapportionment, which has been documented as early as 1792. See Thomas Rogers Hunter, The First Gerrymander?: Patrick Henry, James Madison, James Monroe, and Virginia’s 1788 Congressional Districting, 9 Early Am. Stud. 781, 819 (2011) (discussing a 1792 map that “severely overpopulated” congressional districts in the northeast corner of the state).

[30] Common Cause, slip op. at 341.

[31] Jeff Jackson (@JeffJacksonNC), Twitter (Sep. 3, 2019, 4:40 PM), https://twitter.com/JeffJacksonNC/status/1168987115637682176.

[32] Graig Meyer (@GraigMeyer), Twitter (Sep. 3, 2019, 4:44 PM), https://twitter.com/GraigMeyer/status/1168988126200705026.

[33] Nick Ochsner (@NickOchsnerWBTV), Twitter (Sep. 3, 2019, 5:27 PM), https://twitter.com/NickOchsnerWBTV/status/1168998919885508608.

[34] See Rick Hasen, North Carolina Republicans Won’t Appeal Gerrymandering Ruling, Promise “Nonpartisan” Map. What’s the End Game?, Election L. Blog (Sep. 3, 2019, 3:13 PM), https://electionlawblog.org/?p=107179.

[35] See Jeff Jackson (@JeffJacksonNC), Twitter (Sep. 3, 2019, 7:03 PM), https://twitter.com/JeffJacksonNC/status/1169023123938824194 (“With fair maps, we have a genuine shot at electing a state legislature that actually reflects the political will of our state.”).

[36] Common Cause, slip op. at 233.

[37] See, e.g., Matthew Yglesias, The 2018 Electorate Was Older, Whiter, and Better Educated Than in 2016, Vox (Nov. 12, 2018, 10:00 AM), https://www.vox.com/policy-and-politics/2018/11/12/18083014/2018-election-results-turnout

[38] Common Cause, slip op. at 153.

[39] Id. at 157–58.

[40] Id. at 161–64.

[41] Id. at 164–69.

[42] Id. at 170–75.

[43] Id. at 181–85.

[44] Id. at 194–99.

[45] Id. at 199–203.

[46] Id. at 203–08.

[47] Id. at 209–15.

[48] Id. at 109–17.

[49] Id. at 117–23.

By Matt Deorocki

As the 2020 census and election cycle draws ever closer, some North Carolinians are looking to the state’s court system to provide guidance on the constitutionality of partisan gerrymandering in Common Cause v. Lewis. Since filing its original complaint on November 13, 2018, Common Cause, a non-profit, “nonpartisan democracy organization with over 1.2 million members and local organizers in 35 states” has sought a ruling striking down partisan gerrymandering within North Carolina’s state legislative districts.[1] While North Carolina has a rather illustrious history regarding gerrymandering, the state’s most recent controversies spur from what Common Cause defines as ill-intended Republican efforts in 2010 and 2017 to solidify power through partisan redistricting.[2]

Common Cause asserts that national Republican leaders targeted North Carolina in a concerted effort with the Republican State Leadership Committee (RSLC) to redraw North Carolina’s state congressional districts to ensure greater Republican representation.[3] Using a plan codenamed “REDMAP,” Common Cause claims that four Republican operatives, including the famed Republican strategist Thomas Hofeller, set forth redistricting maps in 2011 that were completely devoid of any committee or subcommittee influence from either branch of the state legislature[4] After passing party-line votes in the House and Senate, subsequent litigation was brought, ultimately leading to Republican leaders in the General Assembly admitting that “[p]olitical considerations played a significant role in the enacted plans and all alternatives.”[5]

Further challenges on Republican-drawn districts came into light in 2017. Ultimately, anti-gerrymandering enthusiasts emerged with a short-lived victory in Covington v. North Carolina, a case in which 19 House districts and 9 Senate districts were found to be in violation of the federal Equal Protection Clause due to racially motivated redistricting schemes. Nevertheless, victory was short-lived, as Republicans, including Hofeller, found themselves at the helm of remedial redistricting.[6] With racial gerrymandering violations fresh in the redistricting strategists’ minds, Hofeller and the redistricting committee set forth a 2017 plan seeking to maximize Republican partisan advantage.[7] In fact, Republican leaders in the General Assembly plainly admitted they were seeking to maximize Republican advantage. In relation to the similarly gerrymandered congressional map, one leader stated that he wanted to “give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”[8]

Accordingly, the main question in Common Cause v. Lewis is not whether North Carolina Republicans engaged in partisan gerrymandering, but whether partisan gerrymanders violate North Carolina’s Constitution. Given the United States Supreme Court’s recent ruling in Rucho v. Common Cause, a case regarding partisan gerrymandering in federal congressional districts, Common Cause is likely facing an uphill battle in Superior Court, North Carolina’s trial court.[9] In Rucho, the Supreme Court defined the scope of judicial action in partisan gerrymandering controversies, ultimately holding that “[P]artisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”[10] Despite indicating that “such gerrymandering is ‘incompatible with democratic principles,’” Chief Justice Roberts, writing for the 5-4 majority, gave the resounding answer: it’s not our job.[11]

Given this significant precedent, a key question remains: why is Common Cause getting a second chance? In reality, the United States Supreme Court’s overall ruling is binding on all courts interpreting the United States Constitution. In addition, The Supreme Court’s holding on justiciability likely binds any federal court interpreting a state constitution via supplemental jurisdiction. However, a North Carolina court may interpret North Carolina’s Constitution to provide greater rights than are seen in the United States Constitution because its holding would be based solely on state constitutional protections. Thus, because the North Carolina Superior Court has adequate and independent grounds under the North Carolina Constitution to evaluate partisan gerrymandering, Common Cause is free to launch its attack once again under the state constitution. Nevertheless, in order to overcome the significant persuasive authority set forth by the Supreme Court, Common Cause has honed in on three specific counts, each drawing light to “increased” protections held within North Carolina’s Constitution.[12]

Common Cause launched its attack by arguing that partisan gerrymandering violates North Carolina’s Equal Protection clause.[13] The basis of the argument relies on the clause, “[n]o person shall be denied the equal protection of the laws,” extending protection beyond that of the Federal Constitution.[14] While the clause has been interpreted to protect the right of “substantially equal voting power,” it is unclear whether the clause has applicability to partisan concerns.[15] Accordingly, Common Cause reasoned that the argument fits because Republicans purposefully diluted the voting power of Democrats, thereby making it “more difficult for Democratic candidates to be elected across the state, and . . . rendering it virtually impossible for the Democratic Party to achieve a majority of either chamber of the General Assembly.”[16] However, Common Cause’s argument should face significant skepticism, as Democrats are not a suspect class and are not entitled to increased judicial protections.

In their Post-Trial Brief filed August 7, 2019, Defendants in Common Cause v. Lewis addressed these accusations by reasoning that by delegating district map drawing to a political branch, the branch naturally could “consider partisan advantage and incumbency protection in the application of its discretionary redistricting decision.”[17] Furthermore, defendants returned an ill-willed jab stating: “Plaintiffs do not belong to a suspect class. Nor do they suffer an injury to ‘a constitutionally protected right to vote, and to have their votes counted.’ Instead, they complain of the political impact of district lines that will, in all events, have political consequences.”[18]

Given the Supreme Court’s refusal to act on equal protection grounds in Rucho, it would seem unlikely that a North Carolina Superior Court would take the opposite stand. Yet the three-judge panel appointed to hear the case is made up of two Democrats and one Republican, perhaps better odds than the 5-4 Supreme Court split.[19]

Common Cause also attacks Republican redistricting by claiming its partisan considerations violate the Free Elections Clause of the North Carolina Constitution, which provides “All elections shall be free.”[20] Despite this rather ambiguous language, Common Cause has supported its contention by arguing that on February 7, 2018, the Pennsylvania Supreme Court held that a partisan gerrymander of Pennsylvania congressional districts violated Art. I, Sec. 5 of the Pennsylvania Constitution, which provides for elections that are “free and equal.”[21] The Pennsylvania Supreme Court ultimately ruled that Pennsylvania’s Free and Equal Elections Clause requires voters to “have an equal opportunity to translate their votes into representation” and that said requirement is ultimately violated by “extraneous considerations such as gerrymandering for unfair partisan political advantage.”[22] As is easily done when arguing over semantics, the defense answered the attack by pointing to the notion that the Pennsylvania Constitution requires “free and equal” elections while the North Carolina Constitution merely indicates that elections must be “free.”[23] Accordingly, the defense articulates that there simply is nothing violating the North Carolina clause, as there is nothing impeding voting and each vote is being counted.

Finally, Common Cause argues that the Defendants have violated North Carolina’s Freedom of Assembly and Free Speech Clauses “by intentionally burdening the protected speech and/or expressive conduct of Plaintiffs and other Democratic voters, including members of Common Cause and the NCDP based on their identity, their viewpoints, and the content of their speech.”[24] However, the Defendants responded by stating that Plaintiffs’ viewpoints are not being restricted in any manner and there is no prohibition on speaking or associating with one another.[25] Here, it is likely that Common Cause has taken a more abstract view of speech and association by arguing that Republican redistricting techniques have deprived them of being able to assert the political philosophies in an adequate manner. Today, it remains uncertain whether such an argument can stand.

Given the Supreme Court’s ruling in Rucho v. Common Cause and North Carolina Constitution’s limited variance from the federal Constitution, I believe that a ruling in Common Cause’s favor is highly unlikely, despite the partisan makeup of the panel (two Democrats and one Republican). The persuasive authority of the United States Supreme Court may be a significant deterrent for any judge thinking about ruling in Common Cause’s favor. With the Supreme Court already ruling on a similar, albeit different constitution, North Carolina’s Superior Court could readily defer their opinion to the language expressed in Rucho, limiting their political liability. Either way, the Superior Court’s ruling will be short-lived, as the loser will surely appeal the case to the North Carolina Supreme Court in the immediate aftermath.


[1] Amended Complaint at 3, Common Cause v. Lewis, No. 18-cv-14001 (N.C. Super. Ct. [Wake] filed Dec. 7, 2018) [hereinafter Amended Complaint]

[2] Id. at 17

[3] Id.

[4] Id. at 19.

[5] Defendants-Appellees’ Brief on Remand at *16, Dickson v. Rucho, 781 S.E.2d 404 (N.C. 2015) (No. 201PA12-3), 2015 WL 4456364.

[6] Covington v. North Carolina, 316 F.R.D. 117 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017)

[7] Amended Complaint, supra note 1, at 28, (citing Covington, ECF No. 187-3 at 2)

[8] Hearing Before the J. Comm. on Redistricting, Extra Sess. 48, 50 (N.C. Feb. 16, 2016) (statement of Rep. David Lewis, Co-Chair, J. Comm. on Redistricting), redistricting.lls.edu/files/NC%20Harris%2020160216%20Transcript.pdf.

[9] See Rucho v. Common Cause, No. 18-422 slip op. at 30 (U.S. June 27, 2019)

[10] Id.

[11] Id. (citing Arizona State Legislature, 576 U.S. at ____ (slip op., at 1)).

[12] Amended Complaint, supra note 1, at 67–74.

[13] Id. at 67.

[14] N.C. Const. art. I, § 19.

[15] Stephenson v. Bartlett, 562 S.E.2d 377, 394 (N.C. 2002)

[16] Amended Complaint, supra note 1, at 68.

[17] Defendant’s Post-Trial Brief at 4, Common Cause v. Lewis, No. 18-cv-14001 (N.C. Super. Ct. [Wake] (Aug. 7, 2019) [hereinafter Defendant’s Post-Trial Brief] (citing Stephenson v. Bartlett, 562 S.E.2d at 390 (N.C. 2002)).

[18] Id. at 7 (citing Reynolds v. Sims, 377 U.S. at 554–55 (1964)).

[19] Order, Common Cause v. Lewis, No. 18-cv-14001 (N.C. Super. Ct. [Wake] (Nov. 27, 2018); Kari Travis, In Common Cause v. Lewis, Courts Will Again Take on Partisan Gerrymandering. Carolina J. (July 15, 2019), https://www.carolinajournal.com/news-article/in-common-cause-v-lewis-courts-will-again-take-on-partisan-gerrymandering/.

[20] N.C. Const. art I, § 10.

[21] Pa. Const. art I, § 5; League of Women Voters v. Commonwealth, 178 A.3d 737, 804 (Pa. 2018).

[22] League of Women Voters, 178 A.3d at 814, 817.

[23] Defendant’s Post-Trial Brief, supra note 16 at 19 (citing Pa. Const. art I, § 5; N.C. Const. art I, § 10).

[24] Amended Complaint, supra note 1, at 72.

[25] Defendant’s Post-Trial Brief, supra note 16 at 19.

man-886601_1920

By Mikhail Petrov

On July 23, 2015, in the criminal case of United States v. Parral-Dominguez, the Fourth Circuit issued a published opinion vacating the sentence of foreign national Edgar Parral-Dominguez (“Dominguez”) and remanding the case back to the district court. This case examined whether Edgar Parral-Dominguez, a Mexican citizen, was properly subject to a sentencing guidelines enhancement. After Dominguez plead guilty to illegally reentering the country, the district court applied the enhancement because, in its view, Dominguez’s previous conviction in North Carolina for discharging a firearm into an occupied building is a requisite “crime of violence.” The Fourth Circuit found this decision was in error.

The Facts

In 2000, at the age of 14, Edgar Parral-Dominguez left Mexico with his father and entered the United States. Although his father went back, Dominguez remained. On New Year’s Day, a firearm was discharged toward a woman’s residence in Winston-Salem, North Carolina. A year later, Dominguez was arrested and charged for the incident. He was convicted for an aggravated felony–discharging a firearm into a building under N.C.G.S.A. § 14-34.1(a) (“the State Offense”).

During his post-arrest processing, state authorities found that Dominguez was unlawfully present in the country. Thus, after he plead guilty to the State Offense he was deported to Mexico. Within months, however, Dominguez returned to North Carolina, and settled in Wilmington.

Three years after his deportation, Dominguez was arrested with more than an ounce of cocaine. He was convicted for trafficking and state authorities again discovered that Dominguez was previously deported and was unlawfully present in the country. In December 2013, a federal grand jury sitting in the Eastern District of North Carolina indicted Dominguez under 8 U.S.C. §§ 1326(a) for illegally reentering the United States after being convicted of an aggravated felony.

Before Dominguez’s sentencing, U.S. Probation prepared a presentence investigation report (PSR), which found that Dominguez was a Category IV criminal, that his base offense level was eight, and that he earned a three-point reduction for accepting responsibility. The PSR then proposed a sixteen-level enhancement to Dominguez’s offense level for having been previously convicted of a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Applying this enhancement, the PSR calculated an offense level of twenty one, resulting in fifty-seven to seventy-one months of imprisonment. Dominguez argued that, as a matter of law, the State Offense did not constitute the requisite crime of violence under § 2L1.2(b)(1)(A)(ii).

The district court overruled Dominguez’s objection after concluding that the occupant of a building would feel threatened by the physical force when a defendant shoots at the building. The court then imposed a sixty-five month sentence. The day after sentencing, the district court issued a nine-page memorandum opinion which argued, without binding precedent, that Dominguez’s offense was a crime of violence as anyone would be inherently threatened if their building was shot at. Dominguez appealed.

The Rule of the Case

This appeal centers on whether the state offense of discharging a firearm into an occupied building under N.C.G.S.A. § 14-34.1(a) constitutes a crime of violence for federal sentencing purposes under U.S.S.G. § 2L1.2. The Fourth Circuit first compared the contours of a “crime of violence” under § 2L1.2 with the breadth of conduct proscribed by N.C.G.S.A. § 14-34.1(a). The court applied the so called “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990) (finding that the elements of a statute, not the actual conduct, dictate its interpretation for sentencing purposes). Under the Taylor approach, the court considers only the elements of the statute of conviction rather than the defendant’s conduct underlying the offense.

Reasoning of the Fourth Circuit

Section 2L1.2 states that a 16-level enhancement applies if “the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence.” Although the text of § 2L1.2 does not expressly define the phrase “crime of violence,” the application note clarifies that the phrase contemplates any offense under federal, state, or local law that has, as an element, the use, attempted use, or threatened use of physical force against a person. The so-called “use-of-force clause” was the sole basis with which the Government argued that the State Offense is a crime of violence under § 2L1.2. Still, the use of force clause is limited because first, the plain language of the clause does not encompass acts involving the use of force against property. Second, unlike other sections of the Guidelines, the use-of-force clause does not include “acts that merely pose a risk of harm to another person.”

Although not listed as an element in the statute, the Supreme Court of North Carolina has read a knowledge element into the State Offense which requires the defendant to have had “reasonable grounds to believe that the building might be occupied by one or more persons.” Thus, the State Offense does not require that an offender use, attempt to use, or threaten to use force against another person. Instead, the crime is complete when a person (1) intentionally (2) discharges a firearm (3) toward an occupied building (4) when the shooter knows or has reasonable grounds to believe that the building might be occupied. Therefore, the State Offense cannot be construed as a crime of violence under § 2L1.2’s use-of-force clause and the district court committed procedural error by concluding that Dominguez’s offense under the State Offense is a crime of violence.

Finally, the Fourth Circuit reasoned that the error was not harmless. While in many cases, a judge is unequivocal about what effect any Guidelines miscalculation would have on the ultimate sentence, no such words exist here. It is not clear that Dominguez’s sentencing was unaffected by the court’s error. The Fourth Circuit, looking at the amount of time devoted to calculating the sentence, reasoned that the Guidelines played a large role in the sixty-five month sentence.

Holding

The Fourth Circuit vacated and remanded Dominguez’s sixty-five month sentence. The court held that the State Offense is not a crime of violence, and thus that the district court committed procedural error. Additionally, the procedural error was not harmless. The dissent by Circuit Judge Wilkinson argues that the decision should be upheld because the State Offense is not a crime against property, but a crime against people who occupy the property and is therefore a crime of violence.