Courts & the Law, COVID-19, News

During COVID-19 crisis, officials begin reviewing jail population for early release

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North Carolina criminal justice officials have begun reviewing the number of people in jail and releasing nonviolent inmates as a precaution to protect against COVID-19, the disease caused by the new coronavirus, which has become a pandemic.

Reports from across the state indicate that Wake, Durham, Alamance, Orange, Chatham, Forsyth, Guilford, Mecklenburg and Buncombe counties have started releasing individuals from jails or delaying intermittent weekend sentences to prevent the spread of COVID-19 in facilities. Other counties could be doing the same, but those listed have been confirmed.

Durham County District Attorney Satana Deberry said Friday that while community residents are rightly heeding the advice of health officials to stay home and avoid crowds to the extent possible, social distancing for incarcerated individuals is not possible.

For the health and safety of both those incarcerated and employees at the Durham County Detention Facility, Deberry said in a news release that she has worked with defense attorneys and judges to identify people who could be safely released through a modification of release conditions or disposition of their case. Specifically, they have worked to identify individuals who do not pose a public safety risk, people who are over the age of 60, and people with health conditions that put them at high risk of serious illness due to COVID-19.

Durham District Attorney Satana Deberry

“We are also working with local law enforcement to ensure that only those few individuals who do present a danger to our community are brought to the detention facility during this emergency. We ask that defense attorneys notify us if they represent a client who is in custody in Durham and at high-risk of illness.”

The inmate population dropped from 369 a week ago to 332 today, though spokesperson Sarah Willets noted it’s possible some of the inmates could have been released by bonding out or completing a sentence independent of the current push to decarcerate. She didn’t have an exact figure of how many people had been released per that effort.

The News & Observer reported between 2007 and 2018, the average annual jail population at the Durham County Detention Center fell from 629 to 498. It fell to 366 in April 2019.

Jails and prisons are seen as particularly high risk when it comes to COVID-19 because of the close contact inmates have with each other and their limited access to cleaning and sanitizing supplies and medical care.We are concerned about anyone who is incarcerated in any facility across the state. They are incredibly dangerous places at this moment. Click To Tweet

“We are concerned about anyone who is incarcerated in any facility across the state,” said Leah Kang, a staff attorney with the ACLU of North Carolina. “They are incredibly dangerous places at this moment.”

The ACLU of NC along with a coalition of organizations called Thursday for state officials to take action to protect incarcerated people, corrections employees and the general public by reducing the use of imprisonment. They sent letters to Gov. Roy Cooper, the North Carolina Department of Public Safety, the North Carolina Conference of District Attorneys, the North Carolina Association of Chiefs of Police and the North Carolina Sheriffs’ Association.

“We’ve shut down schools, we’ve shut down universities, we need to decarcerate,” Kang said in a phone interview Friday.

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Jail facilities are under local control and usually run by counties and or sheriffs’ offices. The populations there are usually shorter term and pre-trial, which means most inmates have been accused but not convicted of a crime. Prisons, by and large, owned and operated by the state or federal government, and most of the populations have been convicted of felony charges.

Leah Kang

Kang said advocates are concerned about populations in both prisons and jails and are asking for relief for both, but she noted a few difference that could put inmates in jails at greater risk of contracting COVID-19.

Jail populations are more transient, meaning more people are coming in and out of facilities, increasing the risk of exposure, and counties are usually less equipped than state and federal governments when it comes to resources because of the shorter-term nature of inmate stays.

Kang was hesitant to point out the differences, though, because COVID-19 could be a death sentence for any incarcerated individuals whether they are in a jail or a prison. She added, however, advocates believe jails should be releasing all pre-trial populations unless there is an identified harm to a specific person that would be exacerbated by their release.

“In the midst of this crisis, there really should not be anyone languishing in jail because the can’t afford bond,” she said. “We need to get people home.”

Wake County District Attorney Lorrin Freeman said Friday her office is working diligently to reduce the number of individuals in jails “while also ensuring that we are maintaining public safety and protecting victims’ rights under the new constitutional amendment.”

“We have notified law enforcement of our preference that individuals be cited as opposed to arrested when appropriate,” she stated in an email.

She added that they are continuing to operate four courts each day to continue to resolve cases involving individuals who are in custody.

We are operating four courts each day for the purpose of continuing to resolve cases of individuals in custody. Those cases include first appearances daily for both misdemeanor and felony cases (as per usual).

As individuals in custody have their first appearances before a judge, we are asking for unsecured bonds in low level non-violent offenses,” Freeman said. “We are working with the Wake County Sheriff’s Office to identify people who are in custody awaiting trial whose bonds can be unsecured. We will continue to review cases of people in our local jail to determine if release is appropriate.”

She said her office is also awaiting a report from the prisons on incarcerated individuals aged 60 and older to review to see if any of them would be appropriate for early release.

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Some counties, like Alamance, have delayed all intermittent sentences until May 1. Those individuals, who serve their sentences intermittently on weekends or weekdays were ordered there not to report for jail before then.

Attorneys with the North Carolina Justice Center’s Fair Chance Criminal Justice project said they are seeing a large range of jail policies being implemented, and while the efforts are laudable in a time of panic, many are only a first step to preventing and controlling a COVID-19 outbreak in jail and prison facilities. The NC Justice Center is the parent organization for NC Policy Watch.

“Across counties, law enforcement, district attorneys and judges should prioritize the safety of incarcerated people and staff working inside of jails by limiting charges to non-arrestable offenses and issuing citations in lieu of arrest, moving for immediate release of all people held on secured bond except in instances of high safety risk, and suspending all intermittent sentences for people on probation,” wrote Quisha Mallette, a project attorney, in an email.

Daryl Atkinson

The North Carolina Division of Prisons suspended visitation to all the state’s prisons Monday to minimize the health risks from the spread of COVID-19. Todd Ishee, Commissioner of Prisons, also announced a number of screening measures they’ll implement as a precaution.

Daryl Atkinson, Co-Director of Forward Justice, called on Gov. Roy Cooper to do more for the state prison population.

“Just as Governor Cooper has taken bold action to limit public gatherings, he must also take bold action to reduce the number of vulnerable people held in our state’s prisons by utilizing his clemency powers and expediting release and parole to the elderly and chronically ill in our prisons,” he said. “For the sake of our communities, to every extent possible our prisons should not needlessly keep people incarcerated who are especially vulnerable to COVID-19. The lives of these people are quite literally in the governor’s hands.”

Courts & the Law, COVID-19, News

Courts issue new COVID-19 guidance as NC cases continue to grow

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The North Carolina Administrative Office of the Courts issued new guidance Sunday night in the wake of the spread of COVID-19, which includes postponing foreclosures, small claims hearings and evictions.

In a memo released Sunday, North Carolina Supreme Court Chief Justice Cheri Beasley asked judicial officials to drastically reduce operations in courthouses throughout the state. The memo updated several directives delivered in her Friday order limiting court systems operations. She stressed that while courthouses must remain open, officials must drastically curtail trips to local courts to help reduce community transmission of COVID-19, the disease that is caused by the new coronavirus, and further protect employees of the courts who must still interact with the public.

“Put simply, it cannot be business as usual for our court system,” she stated in the memo. “Non-essential court functions that cannot be accomplished through the use of remote technology must be postponed.”

As of Sunday night, the North Carolina Department of Health and Human Services was reporting 32 positive coronavirus cases – 14 cases in Wake, four in Mecklenburg, two each in Johnston, Harnett and Forsyth, and one each in Wayne, Chatham, Durham, Brunswick, Onslow, Craven, Cabarrus and Watauga counties.

North Carolina officials and agencies have been announcing various orders and guidance to stop the spread of the virus as the numbers continue to climb. Gov. Roy Cooper ordered Saturday that all public K-12 schools close beginning today for at least two weeks. On Sunday, governors across the nation announced shutting down restaurants and large gatherings, and California ordered anyone over the age of 65 to self-isolate. A short time later, the Centers for Disease Control and Prevention issued new guidance calling for the cancellation of in-person events of 50 or more people for the next eight weeks to try to prevent the spread of the coronavirus.

“Events of any size should only be continued if they can be carried out with adherence to guidelines for protecting vulnerable populations, hand hygiene, and social distancing,” the CDC website states. “When feasible, organizers could modify events to be virtual.” The guidance does not apply to the day-to-day operation of organizations such as schools, higher education institutions or businesses. “This recommendation is made in an attempt to reduce introduction of the virus into new communities and to slow the spread of infection in communities already affected by the virus,” the site states. “This recommendation is not intended to supersede the advice of local public health officials.”

North Carolina officials have been working since January to try to curb community spread of COVID-19. The memo sent jointly by Beasley and AOC Director McKinley Wooten directed the following for court systems across the state:

  • In-person meetings must be postponed or cancelled to the fullest extent possible.
  • When cases or hearings cannot be postponed for the next 30 days, remote technologies should be utilized as authorized by law and to the fullest extent possible.
  • Involuntary commitment hearings, guardianship hearings, and pressing estate administration matters should be conducted, but other matters before the clerk, such as foreclosures and other special proceedings, must be postponed.
  • Magistrates must conduct initial appearances and, subject to health precautions, should continue to perform weddings, but small claims proceedings, including evictions, must be postponed.
  • All civil and criminal district and superior court matters must be postponed unless they are absolutely essential for constitutional or public safety reasons.

Beasley’s Friday order already directed that all superior and district court proceedings be postponed for at least 30 days, with limited exceptions, including proceedings necessary to preserve the right to due process of law and proceedings for the purpose of obtaining emergency relief (e.g., a domestic violence protection order, temporary restraining order, juvenile custody order, etc.). “Preventing the spread of #coronavirus is requiring us to take unprecedented steps to curtail court operations,” Beasley tweeted Sunday night. “We appreciate the patience and support of lawyers and litigants as we work together through challenging times.” Read Beasley and Wooten’s full memo from Sunday below.

 

Court Coronavirus Memo (Text)

Courts & the Law, COVID-19, News

Most NC district, superior court cases to be postponed at least 30 days in COVID-19 response

North Carolina Supreme Court Chief Justice Cheri Beasley announced a “thoughtful, bold and innovative” response Friday to combating the spread of COVID-19, the disease caused by a new coronavirus, in crowded court houses: local courts will postpone most cases in district and superior court for at least 30 days with limited exceptions.

“Our state courts play a vital role in protecting the public health and safety,” Beasley said during a press conference. “We settle disputes civilly and promote healthy, secure communities by administering fair and impartial justice accessible to all. Unfortunately, in the moment we are facing, we must weigh the benefits of our court services against the need to protect North Carolinians from exposure to coronavirus.”

Her emergency directive to reschedule hearings goes into effect Monday. The district and superior courts will remain open to the public, but Beasley encouraged people to only go when absolutely necessary.

The exceptions to rescheduling hearings include:

• the proceeding will be conducted remotely;
• the proceeding is necessary to preserve the right to due process of law (e.g.,?a first appearance or bond hearing, the appointment of counsel for an indigent defendant, a probation hearing, a probable cause hearing, etc.);
• the proceeding is for the purpose of obtaining emergency relief (e.g.,?a domestic violence protection order, temporary restraining order, juvenile custody order, judicial consent to juvenile medical treatment order, civil commitment order, etc.); or
• the senior resident superior court judge, chief business court judge, or chief district court judge determines that the proceeding can be conducted under conditions that protect the health and safety of all participants.

This directive does not apply to any proceeding in which a jury has already been empaneled or to any grand juries already empaneled. It also does not prohibit a judge or other judicial officer from exercising any in chambers or ex parte jurisdiction conferred by law upon that judge or judicial officer, as provided by law.

Additionally, the superior courts and district courts are encouraged to liberally grant additional accommodations to parties, witnesses, attorneys, and others with business before the courts who are at high risk of severe illness from COVID-19.

“Thousands of people enter our courthouses every day, most often because they have been summoned to be there and will risk legal consequences if they do not appear, and, while the work of our courts must continue, my first priority is the health and safety of the public that we serve and of the employees who provide those services in our courthouses,” Beasley said. “We must be proactive in taking steps to prioritize the health and safety of our fellow North Carolinians while also maintaining the integrity of our judicial system.”

All counties will post a notice at all court facilities directing any person who has likely been exposed to COVID-19 to not enter the courthouse, according to the North Carolina Administrative Office of the Courts (AOC). Any person who has likely been exposed and has business before the courts should contact the clerk of superior court’s office by telephone or other remote means for further instruction.

As the courts work to postpone thousands of cases, court officials will notify parties and their attorneys of new hearing and trial dates.

The Judicial Branch will be providing continuous updated information and answers to frequently asked questions on its website, NCcourts.gov.?The public is encouraged to visit the website as a first resort to determine if a question can be answered without calling the local courthouse.

Online court services are available for handling some court business, including citation services, paying tickets, court payments, signing up for court date notifications and reminders, eFiling court documents for certain courts and case types, and more.

Read Beasley’s emergency directive below. Follow NC Policy Watch for up-to-date information about COVID-19 throughout the day and in the coming week.



SC Emergency Directive (Text)

Courts & the Law, News

Get-out-the-Vote groups to court: Absentee ballot restrictions after 9th district scandal went too far

"Vote" pin

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A new voting rights lawsuit was filed yesterday, this time in an effort to roll back the North Carolina General Assembly’s restrictions on the absentee voting process after a coordinated, illegal ballot scheme was uncovered in the 9th Congressional district last year.

Lawmakers passed a number of election reform measures in Senate Bill 683 in response to the voter fraud scheme perpetrated by Republican operatives, which invalidated the 2018 election in the 9th district. The lawsuit alleges the part of the law that limits who can help an absentee voter fill out their ballots and return them unfairly penalizes those who need assistance.

The lawsuit was filed by the Right to Vote Foundation, 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.

They argue in the suit that the new law infringes on Advance Carolina’s political speech by inhibiting its constitutionally protected right to encourage absentee voting and unfairly penalizes the African-American communities that the organization primarily serves. Before the law passed, third-party groups like Advance Carolina were able to assist voters with absentee ballot applications in support of their get-out-the-vote efforts among African-American voters, older voters and those living in rural communities.

“This law is unconstitutional and blocks North Carolina groups and voters from participating in their civic duty and must be struck down,” said Right to Vote General Counsel Marc Elias. “We will not allow Republican voter fraud to keep North Carolinians from exercising their right to vote.”

McCrae Dowless, a Republican political operative working for U.S. Congressional candidate Mark Harris paid people to help him collect, fill out and turn in absentee ballots in Bladen and Robeson counties leading up to 2018’s midterm election. Evidence about the scheme was unveiled at a State Board of Elections hearing a little over a year ago.

Elias, at the hearing, represented 9th Congressional Democratic candidate Dan McCready. He previously was Hillary Clinton’s attorney during the 2016 presidential election.

The 19-page lawsuit filed in Wake County Superior Court states that SB 683 infringes on the core political speech and association activities of organizations and citizens working to increase voter turnout.

“‘Get-out-the-vote’ (or ‘GOTV’) efforts play an important role — particularly in North Carolina, which ranks in the bottom half of states in voter turnout as a percentage of registration — in ensuring that eligible citizens are able to exercise their right to vote and that elections fairly and truthfully ascertain the will of the people,” the document states.

SB 683 passed the General Assembly with overwhelming bipartisan support; the vote was 111-1 in the House and 49-0 in the Senate. The measure, though, also restored early voting on the last Saturday before Election Day and extended some early voting hours.

Marcus Bass, Executive Director of Advance Carolina, said he believes voters are being blamed and subsequently harmed by measures that miss the root of the cause of ballot theft in the 9th Congressional district.

“In our work across North Carolina, we have seen these changes create confusion and further impediments to our already fragile democracy,” he said.

The lawsuit asks the court to permanently enjoin the law restricting absentee ballot assistance.

Commentary, Courts & the Law

Conservatives ask Supreme Court one more time to scrap Obamacare

President Obama’s signature health care law is under fire from conservatives. Again.

Third time’s the charm?

As multiple outlets reported Sunday, the U.S. Supreme Court will consider the fate of Obamacare again, because eradicating a politically popular law and nullifying health insurance for 20 million Americans is worth doggedly pursuing in the Trump White House and the right fringes of the Republican Party, if nowhere else.

Otherwise, it is a fool’s errand.

From The N.Y. Times‘ reporting:

The Supreme Court agreed on Monday to hear a third major challenge to the Affordable Care Act, setting up likely arguments this fall in a case that could wipe out President Barack Obama’s signature domestic achievement.

The court granted requests from Democratic state officials and House members who wanted to thrust the fate of the Affordable Care Act into the public eye just as Americans prepare to vote this November. The Supreme Court did not say when it would hear the case, but under its ordinary practices, arguments would be held in the fall and a decision would land in the spring or summer of 2021.

Democrats, who consider health care a winning issue and worry about possible changes in the composition of the Supreme Court, had urged the justices to act quickly even though lower courts had not issued definitive rulings. They wanted to focus political attention on the health law’s most popular provisions — like guaranteed coverage for pre-existing medical conditions, emergency care, prescription drugs and maternity care — and to ensure that the case was decided while justices who had rejected earlier challenges to the law remain on the court.

In the meantime, the law remains almost entirely intact but faces an uncertain future.

The case the justices will hear was brought by Republican state officials, who argued that when Congress in 2017 zeroed out the penalty for failing to obtain health insurance, lawmakers rendered the entire law unconstitutional. The Trump administration sided with the state officials, arguing that the rest of the health care law could not survive without a penalty for flouting the requirement that most Americans have health insurance, sometimes called the individual mandate.

A Federal District Court judge in Texas agreed, ruling that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In December, the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.

With a Supreme Court this ideological, with a chief justice this confounding, I won’t attempt to predict the outcome of this case. The state of Texas is hoping the high court will follow the lower courts in scrapping Obamacare, but that’s no certainty. Chief Justice John Roberts rather notably broke from many conservatives in upholding the law in 2012.

 

Much of the reporting has centered on the political implications for conservatives, but its relevancy in this state, a state that has refused at every turn to expand Medicaid, goes without saying. More than 500,000 in NC enrolled for 2020 in the federally-run exchange. And the need, no matter the Trump administration’s attempts to undercut the law, is not in flux. It is only our leaders.

The legal arguments for tossing the law are … questionable. The moral and logical arguments are … preposterous.

Conservatives’ latest attempt to torpedo Obamacare deserves the same fate as the last two.