Courts & the Law, COVID-19, News

Court filings: Here’s what DPS says its doing for incarcerated people, juveniles

Most incarcerated people in North Carolina have been given at least two single-ply masks and get two bars of soap per week to help prevent the spread of COVID-19.

Meanwhile, Department of Public Safety officials plan to discuss in the next month how to transition back to normal operations, according to Friday court filings related to a lawsuit filed by civil rights organizations and incarcerated people.

Releasing people from facilities is not part of the agency’s 30-day plan.

Judge Vince Rozier recently asked DPS to provide more facility-specific information about its response to the COVID-19 pandemic and how it was keeping incarcerated people safe. His order was part of a lawsuit alleging DPS isn’t doing enough to protect incarcerated people; the lawsuit asked for the agency to release thousands of incarcerated people to make social distancing in facilities possible.

DPS responded by providing a chart with mostly yes or no answers about whether each adult corrections facility had provided residents with masks, soap and sanitizer, and if they’re following guidance from the Centers for Disease Control and Prevention (CDC) and the World Health Organization (WHO). It also provided affidavits from every facility warden to confirm the information is true.

Commissioner of Prisons Todd Ishee also outlined a 30-day DPS plan in his affidavit, which includes collaborating with the Department of Health and Human Services to develop a plan to move incarcerated people who have recovered from COVID-19 back to the regular population. Other parts of the plan discuss evaluating how to safely distribute alcohol-based sanitizer to the entire population.

Ishee reported as of Thursday, there were 643 incarcerated people who had tested positive for the virus. The DPS website reported 642 positive tests as of 3 p.m. Sunday.

The chart for adult corrections does not specify how each facility’s living conditions prevent the spread of COVID-19, and only states “yes” for every facility stating i does meet conditions. Individual affidavits go into more detail.

DPS also provided a chart for juvenile facilities, which is more detailed than that for adult facilities. There have not yet been any confirmed cases of COVID-19 at a juvenile facility, according to court documents.

In addition to submitting more information about its COVID-19 response, Rozier ordered  plaintiffs and defendants to confer and try to agree on names of potential special masters he could appoint to guide a more specific response to the pandemic. The parties were unable to agree and each submitted their own list of names. Read more

Courts & the Law, COVID-19, News

NC voters backed by Democratic groups file lawsuit over absentee ballot restrictions during COVID-19 pandemic

A group of North Carolina voters backed by funding from two well-known Democratic groups filed a lawsuit today challenging restriction on voting by mail.

The lawsuit, which is supported by the Right to Vote Foundation and the National Redistricting Foundation (NRF), cites the COVID-19 pandemic as creating or exacerbating issues related to North Carolina’s existing absentee voting procedures. Specifically, it challenges the state’s ballot postage requirements, witness requirements, the deadline by which election officials must receive mailed ballots, and the rules and procedures around signature matching.

The case was filed in the Wake County Superior Court making claims under the state constitution of North Carolina.

“This case could not be more urgent,” said said Eric H. Holder, Jr., former U.S. Attorney and current head of the NRF. “The state must begin preparations now to ensure that the procedures necessary for increased vote at home and safe in person voting are in place for the citizens of North Carolina. The voters in this state must not be forced to choose between protecting the community’s health and their right to vote.”

Lawmakers have not yet taken up any voting or election changes this session, despite passing a $1.6 billion COVID relief bill over the weekend. The absentee ballot requirements currently in place were passed after an illegal scheme was uncovered in the 9th Congressional District midterm election in 2018.

J.B. Poersch of the Right to Vote Foundation said Wisconsin, which held an election during the pandemic, has shown that states need to do all they can to ensure the health and safety of residents who want vote.

“We must act now to lift these burdensome restrictions so that North Carolina is appropriately prepared for the influx of absentee voting in November as our nation deals with the COVID-19 crisis,” he said.

The State Board of Elections has said it expects a 40 percent increase in the use of mail ballots and recently made a number of recommendations to the General Assembly to ease the burdens.

The lawsuit asks the court to require the state to provide pre-paid postage on all absentee ballots and ballot request so that voters are not forced to pay for casting a ballot; to enjoin the requirement that a voter must have two witnesses or a notary verify a ballot; to extend the deadline for mail ballots to be received nine days after Election Day, which matches the deadline for military-overseas ballots; and to block election officials from rejecting ballots for signature discrepancies without giving a voter the chance to fix the issue.

The Right to Vote Foundation is a nonprofit that makes grants to support voting rights litigation, and Advance Carolina, a Black-led nonprofit organization with a mission to build political and economic power in Black communities and institutions in North Carolina. It already filed a lawsuit earlier this year over absentee voting restrictions.

Courts & the Law, News

NC Supreme Court rules historically in jury race discrimination case

The North Carolina Supreme Court made history yesterday in a jury discrimination case opinion by giving lower courts guidance for the first time about how to dig deeper and better assess claims of racial discrimination in jury selection.

North Carolina appellate courts have never acknowledged race discrimination against jurors of color; it stands alone in that regard among southern states.

In a 6-1 opinion written by Justice Anita Earls and released Friday, the high court sought to correct that by sending a Cumberland County murder case back down to the trial court for a proper Batson hearing.

 Batson v. Kentucky, where the term “Batson violation” comes from, is the case that set the modern rules for addressing racial discrimination in jury selection. The U.S. Supreme Court ruled in that case that a prosecutor’s use of a peremptory challenge in a criminal case — the dismissal of jurors without reason — cannot be used to exclude jurors based solely on their race.

In the recent case before the state Supreme Court, Cedric Hobbs Jr., a Black man, was accused of robbing multiple white victims and murdering one white victim. He appealed a trial court and state Court of Appeals’ ruling that he did not meet the evidence threshold in his capital case to prove three Batson violations.


The jury pool for Hobbs’s capital trial was divided into panels of 12, which were called up in subsequent rounds of jury selection as the parties progressed through voir dire (the initial examination of potential jurors). Hobbs made his first Batson objection during the third round of jury selection after the state excused jurors Brian Humphrey and Robert Layden, both of whom were Black, according to the court opinion.

“At the time of those strikes, the State had issued peremptory challenges against eight jurors, two of whom were non-Black and six of whom were Black,” the document states. “Of the 31 qualified jurors tendered to the State, the State had excused two out of 20 white jurors (10%) and six out of 11 black jurors (54.5%).”

Hobbs established a “prima facie” Batson case by arguing the above facts; a prima facie case is one made on first impression and is correct until proved otherwise. He also argued that the similarities between the answers provided by the excused Black jurors and the accepted non-Black jurors, and the history of racial discrimination in jury selection in the Cumberland County.

The trial court ruled at the time Hobbs didn’t make his prima facie discrimination case to meet the standard of law, but still asked the prosecutor for their reasons for excusing those jurors Hobbs objected to. The court ultimately agreed that those reasons were not based on race.

Hobbs made another Batson claim during the fourth round of jury selection, but the court made the same decision. The Court of Appeals upheld the rulings.

The trial court erred, Earls wrote in the Supreme Court opinion, when it ruled Hobbs didn’t meet his prima facie showing of discrimination. That is supposed to be one of three factors in assessing a Batson claim, and the standard of law  “is not intended to be a high hurdle for defendants to cross.”

Earls goes into great detail outlining guidance for how a trial court is to proceed on that factor, and the two others, analysis of a state’s race-neutral reasons for striking a juror and pretext.

“Neither the trial court nor the Court of Appeals appropriately considered all of the evidence necessary to determine whether Mr. Hobbs proved purposeful discrimination with respect to the state’s peremptory challenges of jurors Humphrey, Layden, and McNeill,” she wrote.

Making history

The attorney who represented Hobbs at the Supreme Court, Sterling Rozear, assistant appellate defender at the North Carolina Office of the Appellate Defender, said this is the first time that court has granted this type of Batson relief in a published opinion.

“I’m glad to have been able to bring Mr. Hobbs’s case to the Supreme Court’s attention, and I’m gratified the Court recognized that there were errors in the way his Batson claims were handled in the lower courts,” he said Friday in an email. At the time, he had not yet been able to contact Hobbs with the good news.

The Supreme Court opinion orders Hobbs’ case back to the trial court for a hearing on the Batson claims and provides guidance on how the law should be applied. The lower court is also ordered to certify its findings back to the Supreme Court within 60 days “or within such time as the current state of emergency allows.”

David Weiss, a staff attorney at the Center for Death Penalty Litigation, said the court didn’t go as far as erasing its history of not upholding Batson challenges, but the opinion was, nevertheless, encouraging.

“They got the message, They understood what we were telling them,” he said Friday. “It’s a good decision that puts in place stronger protections against race discrimination in jury selection.”

In addition to clarifying that prima facie cases are meant to have a low bar when a defendant shows discrimination, the high court also brought guidance for lower courts in step with newer U.S. Supreme Court cases addressing Batson. That includes considering evidence showing race is still at play when a prosecutor doesn’t strike a white juror for the same reason they struck a Black juror.

James Coleman, a Duke law professor and scholar on race and the law, had filed a “friend of the court” brief in Hobbs’s case and another jury discrimination case heard by the high court at the same time (which has not yet been decided). He also was heartened by Friday’s opinion.

This is an extraordinary decision; historic in light of how NC courts previously ignored the letter and spirit of the Batson v. Kentucky decision,” he said. “It ought to have the desired effect of prompting prosecutors to stop excluding Black citizens from criminal juries and justifying the discrimination with barely disguised pretextual explanations. At the same time, it ought to force trial judges to take this kind of discrimination seriously.”

Justice Paul Newby, the only Republican on the high court, dissented from Friday’s opinion. He noted he believed the trial court already conducted the correct inquiry for a Batson challenge.

Read the full opinion and dissent below.

State v Hobbs Batson Case (Text)

Courts & the Law, COVID-19, News

Judge wants more information about protection of NC incarcerated people

The North Carolina Department of Public Safety (DPS) has one week to answer a lot of specific questions about its COVID-19 response in state prisons, according to an order released today by Wake County Superior Court Judge Vince Rozier.

Civil rights organizations, including the ACLU of North Carolina, Forward Justice and Disability Rights NC, along with some incarcerated people, sued the state and DPS alleging it was not doing enough to protect people behind bars from contracting COVID-19. Rozier heard arguments in the case earlier this week.

The plaintiffs asked Rozier to order a more robust plan with a faster release schedule to reduce the incarcerated population in North Carolina. They suggested the state start with the release of 3,000 incarcerated people who have 60 days or less to complete their sentence.

Attorneys for the state and DPS argued they already have implemented a plan to release some vulnerable incarcerated people and take precautions in prison that are consistent with guidelines from the Centers for Disease Control and Prevention (CDC).

Rozier ordered both parties to confer and recommend the names of three special masters in the case, and he wants a facility-by-facility breakdown of how prison officials are protecting incarcerated people, including the quality and quantity of masks and the conditions of living and sleeping quarters.

Read his full order below.

20CVS500110 Judge Rozier (Text)

Courts & the Law, COVID-19, News

NC judge considering whether to order more robust COVID-19 prison response

Wake County Superior Court Judge Vince Rozier hears arguments Tuesday over video conference.

Two attorneys for several civil rights organizations and incarcerated people alleged in court today that the state is not doing enough to protect detention populations from contracting COVID-19.

They asked Wake County Superior Court Judge Vince Rozier to order a more robust plan with a faster release schedule to reduce the incarcerated population in North Carolina. They suggested the state start with the release of 3,000 incarcerated people who have 60 days or less to complete their sentence.

The hearing for a temporary restraining order was conducted remotely over a WebEx video conference system due to COVID-19 restrictions.

Attorneys for the state argued that releasing 3,000 people from prison would overwhelm the system and not be possible. In the regular course of business, the North Carolina Department of Public Safety (DPS) releases upward of 2,000 people per month.

“The types of arguments that defendants are making about administrative hurdles are arguments that almost always get made when states are ordered to cure constitutional violations, but administrative difficulties do not excuse constitutional violations,” said Leah Kang, an attorney with the ACLU of North Carolina. “We are not, moreover, asking this court to, as the defendants characterize it, ‘open up the doors and let everybody out without any follow-up, any process.'”

DPS reported today that there are 596 incarcerated people who have tested positive for COVID-19, and 1,143 tests have been performed. There have been two reported deaths of incarcerated people related to the virus.

Stephanie Brennan, an attorney representing the defendants — the state and DPS — argued that the prisons already are doing everything they can to protect incarcerated people. They have canceled visitations, reduced the intake of people from jails and implemented the Centers for Disease Control and Prevention guidelines to the extent possible in detention facilities.

She added that DPS is reducing the incarcerated population, it’s just not happening as fast as the plaintiffs would like it to. According to court filings, they have released or “will soon release” about 647 people — roughly 2% of the 33,000 who are in custody.

Kang said it’s not enough, and it consigns tens of thousands of others to dangerous exposure to a highly contagious and sometimes deadly virus. There already are large outbreaks at Neuse Correctional Institution and the N.C. Correctional Institution for Women.

She focused on the fact that social distancing is impossible in prison, and said it makes conditions there unconstitutional. She pointed out that medical and public health experts have uniformly stated that incarcerated people are particularly vulnerable to the disease; Kang submitted an expert affidavit in the case stating it is “necessary and urgent” that state officials reduce the prison population.

“Moreover, the more modest measures defendants say they are taking and on which they heavily rely (providing masks and masks, and doing more cleaning) are insufficient to meet their duty under the constitution to keep the people who are under their custody safe,” she said. “Plaintiffs also submitted multiple affidavits from currently incarcerated people that bring into question whether these other measures (masks, cleaning) have been applied with fidelity and uniformly across DPS prisons.”

Tammera Hill, an attorney for the defendants, argued that running a prison is inherently discretionary. She said the decisions about how to do it should be left up to the “boots on the ground” people who have been making decisions all along, not the court. Releasing incarcerated people, she added, takes time, and they have to consider minimum sentences and reentry information, such where they would go after being released.

Kang told Rozier that there is an expansive reentry network in North Carolina with organizations and community groups offering to step up their efforts to make sure people who are released are not on the streets.

“It is more dangerous for all of us if you just shutter the doors of the prison and try to keep everyone locked inside,” she added. “The bottom line is, your honor, the state has a wide range of tools for release here. They have failed to use them to the extent that they need to make social distancing possible for incarcerated people.”

Whitley Carpenter from Forward Justice also argued for the plaintiffs.

The plaintiffs are seeking a preliminary injunction from the judge ordering the defendants to take any and all steps to allow for social distancing, which means they would have to decrease the number of people in custody. Kang offered to draft a plan for the judge, or she said DPS could come back with a better plan, or the court could appoint a special master to help the parties come up with one.

Whatever the plan, Kang said, it must include a written document with a facility-by-facility approach for reducing the prison population.

Rozier took all the arguments under advisement and said he hopes to make a ruling by the end of the week.