Nicholas Woomer-Deters is an attorney in Raleigh.

When it comes to imprisoning their citizens, dictators have nothing on NC

Over at the UNC School of Government’s excellent new North Carolina Criminal Law blog, they’ve noted that the Tar Heel state actually comes across rather well in the important new report on U.S. incarceration rates from the Pew Center on the States:

The numbers in North Carolina are still large: about 1 in every 110 adults in North Carolina is in prison, and 1 in 58 is on probation. But we rank 29th in incarceration rate, 30th in probation rate, and 31st in overall correctional control rate, all below average. Furthermore, our correctional control growth rate over the past 20 years has been slower than the national average, dramatically so with respect to incarceration.

That’s good news, to be sure, but how good is it really? For some quick and dirty answers, it’s actually helpful to turn to the Pew Center’s report from last year on U.S. incarceration rates. With 620 people incarcerated per 100,000 residents, the 2008 report found, North Carolina has the lowest incarceration rate in the South. Louisiana had the highest rate nationally at 1,138 per 100,000, followed by Georgia (1,021) and Texas (976). The states with the lowest rates nationally were Maine (273 per 100,000 residents), Minnesota (300) and Rhode Island (313). So North Carolina finds itself more or less in the middle of the pack on its rate of incarceration when compared with other U.S. states. What’s the big deal?

Before they shrug their shoulders at the Pew Reports, state lawmakers ought to take a look at other countries’ incarceration rates (way down on page 35 of the 2008 report). Only one nation, Russia, locks more of its citizens up than North Carolina. But at a rate of 628 per 100,000, the Russians only have a tiny lead over the Tar Heels.

Meanwhile, and predictably, European social democracies are putting North Carolina and every other state in the U.S. to shame: Denmark and Italy only incarcerate 67 of their citizens per 100,000, Sweden 79, France 85, and Germany 93. The fun-loving folks in the Netherlands incarcerate a mere 128 per 100,000 and the English are only marginally higher with 148.

Ah, yes, but of course those are all wimpy, sclerotic welfare states! They’re bound to be soft on crime… Not so fast: Take a look at the latest World Prison Population List released by the International Centre for Prison Studies at King’s College London this past January. North Carolina has a far higher incarceration rate than nations run by some of the West’s most hated dictators. As of 2007, Robert Mugabe’s Zimbabwe only incarcerated 136 citizens per 100,000; Muammar al-Gaddafi in Libya was pulling a feeble 209; and Burma’s military junta can barely keep it together with rate of 126.

How about Iran, ol’ Axis of Evil herself? Nope. The freedom-hating Ayatollahs only incarcerate at a rate of 222 per 100,000. For all the (rather oxymoronic) squealing about how Hugo Chavez is a democratically elected dictator, he’s not doing such a good job playing the part: Venezuela only locked up 79 per 100,000 last year. Even the Castro brothers fall well behind North Carolina by imprisoning 531 per 100,000 — giving Cuba a slightly lower incarceration rate than New Jersey.

Maybe there’s hope for North Carolina, though. The International Centre for Prison Studies couldn’t get reliable data on incarceration rates in the Democratic People’s Republic of Korea. Who knows? It could be that Kim Jong-il is running a bigger prison state than Bev Perdue.


Happy International Death Penalty Abolition Day! Six reasons to end NC’s death penalty

Today is International Death Penalty Abolition Day, which occurs on March 1 to mark the day in 1846 that Michigan abolished its death penalty, thereby becoming the first jurisdiction in the English-speaking world to do away with capital punishment. One hundred sixty three years later, however, capital prosecutions remain common in North Carolina. Even with a de facto temporary moratorium on executions, the Attorney General’s office continues to litigate death penalty cases aggressively at the postconviction level.

With the moratorium’s end now on the horizon, and with legislation introduced last month in the General Assembly that would exempt individuals who suffered from severe mental illness from execution, it’s an apt time to take stock of the case to abolish capital punishment in North Carolina:

First, there are innocent people on North Carolina’s death row. Last year alone, prosecutors dismissed all charges against two death row inmates, Levon Jones and Glenn Chapman, in unrelated cases. Jones spent 15 years on death row; Chapman almost 14.

Second, there is no evidence the death penalty prevents crime. While there have been a number of relatively recent studies deploying gee whiz number crunching methods to argue that capital punishment is an effective deterrent, it is impossible to draw sound conclusions from the available data. In a review of the alleged statistical evidence in favor of the death penalty, Yale Law School Prof. John J. Donohue and Wharton School of Business Prof. Justin Wolfers concluded that

The view that the death penalty deters is still the product of belief, not evidence. The reason for this is simple: over the past half century the U.S. has not experimented enough with capital punishment policy to permit strong conclusions. Even complex econometrics cannot sidestep this basic fact. The data are simply too noisy, and the conclusions from any study are too fragile.

Third, the death penalty is applied inconsistently and disproportionately against people of color. While African Americans make up less than 22 percent of North Carolina’s population, they make up more than 53 percent of the inmates on its death row. Nevertheless, the N.C. Racial Justice Act — which would have allowed death row inmates to challenge their sentences if they could show that race played a role in the prosecutor’s decision to seek the death penalty in their case or in the jury’s decision sentence them to death — died in the State Senate last year.

Fourth, the death penalty is very expensive. A study of capital-eligible murder cases in Maryland released last year by the Urban Institute has been getting attention from budget conscious legislators. The study’s authors found that, on average, cases where the death penalty was not sought cost $1.1 million over the course of the case, cases where the death penalty was sought unsuccessfully cost $1.8 million, and cases where the death penalty was sought successfully cost $3 million.

Fifth, many inmates on North Carolina’s death row were represented at trial by inexperienced attorneys. A 2006 study by the Common Sense Foundation (which, full disclosure, was conducted by yours truly) identified at least 37 death row inmates whose trial counsel lacked the minimum level of experience currently required to represent a defendant in a capital trial. Since the data involved self-reporting by the attorneys themselves, the number of death row inmates who lacked adequately experienced capital defense attorneys is probably much higher.

Sixth, many inmates on North Carolina’s death row suffer from severe mental illnesses. A 2008 study, also by the Common Sense Foundation, reviewed “the documented public record for all 162 of the individuals on North Carolina’s death row and found at least 20 cases that featured diagnoses of at least major psychotic or mood disorders. Many of these cases also feature suicide attempts, childhood abuse histories, and even hospitalization for mental illness.” Of course House Bill 137, which would ban the execution of individuals who suffered from serious mental illness at the time of their crime, would go a long way toward remedying this.

North Carolina will join the enlightened world eventually. The question is whether we’ll take the more expensive, incremental route — through reforms such as the Racial Justice Act or House Bill 137 — or if the sorry state of North Carolina’s budget will give legislators the political cover to end capital punishment once and for all.


YouTube’s Salvia freak out tour lands in Raleigh

Are a bunch of college kids posting dopey videos on YouTube going to be making drug enforcement and sentencing policy in North Carolina? If state Sen. Bill Purcell (D-Laurinburg) has his way, they basically will. As reported in Tuesday’s News & Observer, Purcell is sponsoring a bill to make Salvia divinorum — a hallucinogenic herb that is part of the mint family — a Schedule I drug.

Under North Carolina anti-drug statutes, Schedules I and II are supposedly reserved for the worst drugs — like heroin, methamphetamine and cocaine — and prescribe the stiffest penalties for those caught possessing, selling or manufacturing them. (Marijuana is a lowly Schedule VI.) One needn’t support harsh sentences for those who use and sell drugs like crack cocaine to appreciate why these drugs are taken so seriously by the criminal justice system: crack, meth and heroin destroy users’ lives while enriching (often violent) criminal syndicates.

In contrast, Salvia just seems to have added to the proliferation of dumb YouTube videos. Sure, well-meaning, middle class legislators can probably be forgiven if they’re spooked by images of Salvia smokers reduced to incoherent babbling and stumbling about. But it’s also plainly obvious that Salvia is nothing like crack or heroin — either in its effects on users or its impact on communities. In fact, Purcell’s bill threatens to derail promising research. A September New York Times article noted that

[p]harmacologists who believe salvia could open new frontiers for the treatment of addiction, depression and pain fear that its criminalization would make it burdensome to obtain and store the plant, and difficult to gain government permission for tests on human subjects. In state after state, however, including here in Texas, the YouTube videos have become Exhibit A in legislative efforts to regulate salvia. This year, Florida made possession or sale a felony punishable by 15 years in prison. California took a gentler approach by making it a misdemeanor to sell or distribute to minors.

Though research is young and little is known about long-term effects, there are no studies suggesting that salvia is addictive or its users prone to overdose or abuse. Indeed, a salvia experience can be so intense, and at times so unsettling, that many try it just once, and even devotees use it sparingly.

It might be objected that, while Salvia bears little resemblance to drugs like heroin or meth, it is similar to other Schedule I drugs such as LSD or psilocybin (the active chemical in hallucinogenic mushrooms). Yet this argument only exposes how irrational North Carolina’s anti-drug statutes are for treating genuine social scourges like crack in the same manner as common recreational hallucinogens.

Salvia has been legal, largely unregulated, and readily available for years — and no one seemed to notice until YouTube came along. It makes one wonder if there would really be any discernible negative social consequences if North Carolina experimented with decriminalizing other psychedelic drugs. Hey, there are worse ideas out there — like giving high 19 year olds with camcorders the power to push through Senate bills.


A legal black hole at the county jail

A black hole.In response to swelling anti-immigrant hysteria across North Carolina, state law enforcement officials in seven counties and one city have signed up to use their own resources to help the federal government identify and deport undocumented immigrants.  So-called "287(g) agreements" with U.S. Immigration and Customs Enforcement (ICE), authorize certain officers in local police and sheriff's departments to enforce federal immigration laws.

Immigrants' rights advocates have principally criticized 287(g) agreements by arguing that they pose a serious threat to public safety: After all, if the police are going to fight crime effectively, they need the public's trust and cooperation. And it's pretty hard to convince undocumented immigrants to report crimes and assist in investigations if there isn't a clear distinction between the local police and federal immigration officials.  This is to say nothing of the fact that 287(g) agreements effectively commandeer limited state and local resources to enforce brutish federal immigration laws.

Now add this to the case against 287(g) agreements: The prospect of indefinite detention in county jails for people who are merely suspected of being undocumented immigrants.  An article in this week's Independent Weekly reports on the nightmarish bureaucratic limbo that is the Wake County 287(g) program:

Of the 321 inmates processed by Wake County's 287(g) officers since the program began earlier this summer, 201 were held for possible deportation. ICE spokesmen couldn't say how many were kept in custody past the 48-hour deadline… Immigration attorney Ricardo Vasquez, who has a client he says has languished in ICE custody for more than 70 days, says the problem starts at Wake County jail. If ICE places a hold on a prisoner's release, the magistrate may not issue a bond even though it's required by law. And when a bond has been issued, those trying to post it may be told they can't because of the ICE detainer — even if the detainer has expired.

So we have documented cases of people being held in Wake County jail under no lawful authority whatsoever.  This should be intolerable to anyone who thinks the government ought to follow its own laws, regardless of his or her position on U.S. immigration policy and enforcement.  Whether similar problems are occurring in the other counties with 287(g) agreements needs to be investigated.  However, the easiest, fastest, and most cost-effective way to solve this problem is to tell the feds they're on their own when it comes to enforcing ill-considered federal immigration policies.


Lawson plea highlights need to challenge underage drinking laws

On Tuesday, UNC point guard Ty Lawson pleaded guilty to underage drinking and driving.  Lawson, who was 20 at the time of his arrest, blew a .03 on a roadside breath test – less than half the .08 limit for drivers aged 21 and over.  As part of his punishment, Lawson was forced to write a degrading essay reacting to "Smashed," an anti-underage drinking propaganda flick:

It made me think of how lucky I am that nothing bad happened that night to me or to anyone else. Drinking and driving do not mix. Nothing good ever happens when someone drinks and then gets behind the wheel and drives.

Like a defendant in some Stalin era show trial, Lawson goes on to denounce himself for the unbearable shame he's brought upon his family, team and university.  The self effacement is so gratuitous, you would think Lawson came within a hairsbreadth of killing someone.

The reality, however, is that Lawson's drinking never endangered anybody; had he been born just five months earlier, he would just be another adult enjoying alcohol responsibly. Instead, a promising young athlete's name is tarnished – perhaps irreparably.  Amongst those joining the pious carrying-on is the editorial board at The Daily Tar Heel, UNC's student newspaper, which is now calling for
Lawson to face public censure from the University's athletic department and basketball coach.

Thankfully, a powerful voice of reason has emerged amidst the hypocrisy and silliness that passes for serious discourse on underage drinking — and it comes from university administrators, no less. Presidents of more than 100 of the nation's most prestigious colleges and universities, including Duke's Richard Brodhead, recently signed a statement calling for "an informed and dispassionate public debate over the effects of the 21 year-old drinking age."  Predictably, even this modest call for meaningful public dialogue on the legal drinking age has been met with self-righteous yammering and forecasts of doom backed by selective evidence.

The government's own statistics acknowledge that most full-time college students who are not yet 21 drink alcohol.  This means that, under present law, American college campuses are literally teeming with criminals.

As the university presidents' statement suggests, there are serious problems with a law that effectively criminalizes youthfulness.  Perhaps the most compelling of these is that while those who are 21 or over can enjoy alcohol openly in regulated settings like bars or dorm rooms, adults who drink under age have to do so in relative secrecy. Fear of prosecution provides a strong disincentive for students to seek help if anyone's drinking gets out of hand, and it can force students to drive off campus to drink alcohol undetected.

Officials at other North Carolina colleges and universities should join Brodhead's call to reconsider the drinking age.  However, there is no need to wait for a change in federal legislation.  College and university officials can refuse to abet government efforts to enforce underage drinking laws, prosecutors can dismiss underage drinking cases liberally, and police can focus their priorities towards more pressing public safety issues.  Until there is more resistance to wrongheaded underage drinking policies, most college students who aren't yet 21 are Ty Lawsons who just haven't been caught yet.