2010 LEGISLATION AFFECTING CRIMINAL JUSTICE ISSUES
From the first day of the session, legislative leaders made it clear that the 2010 short session was about budget issues and they had no intention to take up many non-budget issues. With a few exceptions, they remained true to their intent. In the last Update we reported on the wide range of issues that have already been addressed in the budget. In this Update, you can review some key criminal justice issues from 2010. A few were enacted and some that were not may be reintroduced in 2011. Scroll though the headings to find categories that interest you.
COMMUNITY-BASED CORRECTIONS, PRE-TRIAL SERVICES AND RE-ENTRY
Bail Bond - Post Conviction - Snow - S1077 - NOT ENACTED - At the end of the session, language was inserted into a bill that would allow the court to order the posting of a bond after conviction. If a person was convicted of a comunity or intermediate punishment, the bill would allow a judge to order a bond to be posted. If the defendant absconded or failed to appear at a subsequent hearing, a bail bondsman would be given 96 hours to bring the defendant in before forfeiting the bond. This measure would have allowed the profit motive to enter into what is currently a government function handled by probation. It also would have been likely to increase the jail population since a number of offenders are already unable to afford bonds.
DV Cases - Review Criminal Record - H1812, ENACTED - Ensures that when ordering pre-trial release on a domestic violence offense, the court will consider the defendant's criminal record.
Alllow Electronic Parole Notification - H1115, - ENACTED - The Parole Commission is required to notify the media 30 days in advance of considering an offender for parole. This notification may now be made electronically.
COURTS
Determining Senior Resident Superior Court Judge - H1398 - ENACTED The Chief Justice of the Supreme Court will now designate one of the Superior Court judges in each district as the Senior Resident Superior Court Judges. That determination will not longer be made on the basis of seniority.
DNA
Collect DNA Sample on Arrest - H 1403,- ENACTED - The DNA was introduced at the request of Atty. General Roy Cooper and was one of the major bills to be enacted during the session. While the final version passed overwhelmingly and was an improvement over the bill as it was originally introduced, we continue to think it's unwise to takeg DNA samples on felons PRIOR to any determination of guilt. Here's some major provisions in the bill:
*The bill establishes a DNA data base and data bank through which the SBI can search DNA records. The database may be shared with the FBI for the purpose of searching records and the databank contains the actual DNA samples.
*DNA samples will be taken at the time of fingerprinted unless a person is arrested without a warrant. Samples will be taken by cheek swab unless there is a court order to draw blook.
*Records shall be maintained naming when the sample was taken and the name of the person who took it. This appears to be a massive record-keeping task and it remains to be seen how well it can be handled. Jail records are often imprecise already.
*There are procedures specified for expunging the DNA sample. The state will remove the DNA record and sample if: the charge has been dismissed; the person has been acquitted; the defendant is convicted of a specific lesser-included misdemeanor offense; no charge is filed within the statute of limitations and no conviction has occurred after 3 years.
*DNA samples will be taken from people arrested for the following offenses: First and second degree murder; manslaughter; rape and sex offenses; felonious assault with a deadly weapon with intent to kill inflicting serious injury; assualt on various government employeess; kidnapping, first and second degree burglary; breaking or entering a place of worship, arson, armed robbery, cyberstalking, stalking.
*Any person found not guilty by reason of insanity will have a DNA sample taken.
*DNA records shall only be released for law enforcement identification purposes and for criminal defense and appeal purposes.
Funding was required for this initiative.
GANGS
Clarification of Nuisance Abatement Laws - S372 - NOT ENACTED - This bill had a provision which would have created a new civil offense under a nuisance statute for associating with others to "engage in street gang activity." The punishment which would have been obtained through civil contempt would have been less that that imposed after conviction of a criminal offense. Legislators did not move forward with it.
INNOCENCE
Amend Innocence Inquiry Commission - ENACTED - S144 - The bill provides that if there is an allegation of prosecutorial misconduct, there is a provision for appointing a special prosecutor. It also allows a person who is determined to be innocent of all charges to be eligible for compensation without obtaining a pardon of innocence from the Governor. Payments may be equal to $50,000 per year, not to exceed $750,000.
MENTAL ILLNESS
Mental Illness - Death Penalty - S309 - NOT ENACTED - this very important measure would have prohibited the death penalty for a defendant with a severe mental disability at the time of the offense. It would establish a procedure that would track what the state currently uses for determining mental retardation in a capital case. While the bill did not pass, tremendous progress was made by Disability Rights, the lead organization educating lawmakers about the measure. The bill has many more supporters than at the beginning of 2010 and is closer to enactment.
NON-PROFIT GRANTS
Non-Profit Grants - H 1852 - NOT ENACTED - This bill would have taken 2% of the amount of a grant awarded to each non-profit in order to provide oversight for the grant. Oversight, is of course, important, but most - if not all - non-profits are already reporting either to an existing state department or directly to the legislature. They would have been required to give up an additional 2% of funding to do what they are already doing.
A positive aspect of the bill is that it would require all state departments to use the same general guidelines in providing oversight.
Amend Racial Justice Act - NOT ENACTED - H 2010 - Reps. Burr and Tillis (R) introduced a bill to change the Racial Justice Act that was passed in 2009 so that it would only apply after conviction and not at sentencing. A similar bill was introduced by Sen. Graham (D). This is not the time to amend the Racial Justice Act since it was just enacted and hasn't even had a chance to begin to work. The changes were not passed and all claims under the Racial Justice Act must by filed by August 10, 2010.
SENTENCING
Enhance Protection of Victims and Witnesses - H 789 - NOT ENACTED -This bill would have increased the punishment for intimidating a witness from an H to C level felony. That is a very big jump. The Sentencing and Policy Commission found that this offense could also fit under a Class F felony. While this offense is serious, it's probably less common than many think since there were very few convictions for this offense when it was reviewed by the Sentencing Commission. Raising it to a C level felony might actually result in even fewer convictions.
STUDIES
Studies Act of 2010 - S900 - ENACTED - The Legislative Research Commission will be allowed to study the following issues that may have an impact on criminal justice:
Supportive House Initiative - (Rep. Insko) The legislature may study the feasibility and cost-effectiveness of a statewide supportive housing initaitive for people with mental health, substance abuse or developmental disabilities. One of the items under review will be the impact such a system might have on decreased arrest, incarceration and recidivism rates as well as decreased rates of homelessness and shorter stay in hospitals.
Study of Alternatives to Hospitalization of Frequent Users of Psychiatric Hospitals - DHHS will study the cost-effectiveness of supportive housing as an alternative to instiutionalization. The task force will be required to "propose a plan" which will include measures to "decrease the incarceration rate of MH/DD/SA populations" and to determine their incarceration history, recidivism rates, and treatment offered.
Unsecured Bonds - (Rep. (Love) The Joint Legislative Corrections, Crime Control and Juvenile Justice Oversight Committee may study " the factors used in determining the release of defendants with unsecured bonds; the frequency of using unsecured bonds for the release of defendants; the failure to appear rates..; the amount of time it takes and the entity most likely to apprehend the defendant after the bond is forfeited; and the likelihood of converting forfeiture or judgment to revenue.
Raising the Age for Compulsory Public School Attendance - (Reps. Parmon, Bryant, Hurley, Hall) - A Blue Ribbon task force will be established to study the impacts of raising the public school age to 17 or 18.
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