Say you’re poor, you live in North Carolina, you have a little bit of a record, and you get popped for a smallish felony—perhaps low-end drug-peddling. Bond is set at $5,000. This particular month, you don’t have the 10 percent principal to spare. Now you’re in jail for two months, now three, now four. So now you’re being offered a plea, and it doesn’t sound much like a plea but you take it anyway because you know how they do in Carolina prisons and, more important, you know the prosecutor owns your nuts.
What I’m telling you here is an open secret. North Carolina is the last state in the union where an individual can be arrested and detained indefinitely.
In other states, a quasi-neutral party will arrange the courts’ dockets. Usually this person is a judge’s clerk, or a staffer who ranks just below a clerk. In North Carolina, there is no such pretense to neutrality. Prosecutors control the prosecutorial schedule. They are at leisure to interpret the state constitution and its notions of “denial” and “delay” with whatever elasticity they like.
Imagine that! To keep a defendant dangling in county as long as you want, waiting for a judge with a special grudge against whatever kind of offender you think this detainee might be. Think of the mental game alone, the near-absolute power that prosecutors can leverage toward plea deals that often don’t sound very much like “deals.”
“I practiced law in D.C. for seven years before I came to North Carolina,” says Robert P. Mosteller, the J. Dickson Phillips Distinguished Professor of Law at University of North Carolina-Chapel Hill. “When I learned that DAs had control over the court calendar down here, I was simply shocked. Having one side in control? Come on. Scheduling matters.”
If you pry yourself from the blooper reel of American jurisprudence to focus instead on state penal codes, you’ll notice one corner of the country where antique laws have bred regressive versions of due process.
“It’s unbelievable,” Chetson says, “the shamelessness. We had a prosecutor tell someone from Child Protective Services, over email, mind you, ‘I wanna have the victim’s sister ready to testify at such and such time, because my favorite judge is gonna be available such and such week.’ Very prosecutor-friendly, the judge in question. This case dragged on for years, with the defendant in custody the whole time.”
Mosteller suggests that the higher-profile county seats are less likely to host prosecutorial overreach.
“It’s an awful system, but lawyers contribute to campaigns and vote,” Mosteller says, “so D.A.s came to modify their practices, say 10 years ago maybe, because they didn’t want to alienate the practicing bars too much. Charlotte, Orange, Wake County are full of good prosecutors; other counties where the DA is abusive, the calendar can be manipulated and probably is. It comes down to the electoral context; if [prosecutors] are too high-handed, someone will run and unseat them. Assuming, again, that you’re in one of the big three.”
Many ADAs, defense attorneys, and professors of law acknowledge that abuses against the court calendar were far more terrifying several decades ago, but poor people especially still slip through the cracks, even in Raleigh and Charlotte. An ADA in the eastern part of the state acknowledges improvements in the state’s urban districts but says she remains agog at the scheduling system.
“I had never worked on the state side before,” she says. “So it was eye-opening to see how much power the state really does have. I mean, I think everyone knew to a certain extent, but no other states allow DAs to control the calendar, which is huge. And you know the trouble that Durham has been in in the past—it has a very strong defense bar … even more controlled than other district attorneys in the state. Rural counties and more suburban counties, it’s a lot easier to get away with totalitarianism. ”
“It’s a little disturbing for me how it’s just accepted that every DA has their own style of going about things, not any oversight really,” she continues. “It feels massively arbitrary and of course has huge implications on a lot of these people’s lives. And I’m in the prosecutor’s office.”
THE DILEMMA STEMS FROM what was a rather sensible arrangement—in the 19th century. Judges would ride about from one county seat to the next, and local attorneys (non-itinerant) would deliver the court schedule each week. Now that we have dispensed with horses, buggies, laws about miscegenation, et cetera, it is also probably time to dispense with an antique judicial routine that violates the separation of powers in very clear ways. Technically, North Carolina’s prosecutors are members of the executive branch, yet they exert scarcely mediated control over the judiciary. For a long time, left-leaning North Carolinians have liked to say, “Hey, at least we’re not South Carolina.” It becomes ever harder to assuage one’s conscience with this mantra, especially since the South Carolina State Supreme Court abolished its parallel culture of prosecutorial control in November 2012.
“The Public Defender Association,” wrote the court, “contends section 1-7-330 violates the separation of powers by impermissibly conferring judicial responsibilities upon a member of the executive branch. Our constitution mandates that ‘the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.’ S.C. Const. art. I, § 8.” The court sided with the South Carolina Public Defender Association—leaving North Carolina as the only state in the union where manipulation of the courts is built into the very fabric of our jurisprudence.
One Raleigh ADA frames the problem in simpler, more practical terms: “Scheduling the docket shouldn’t be with the DAs so much because then instead of practicing law, it comes to managing people; so much of my job is organizational rather than legal. Then judges get six figures and they just sit on the bench, twiddling fingers.”
Imagine that! To keep a defendant dangling in county as long as you want, waiting for a judge with a special grudge against whatever kind of offender you think this detainee might be.
On December 1, 2013, the legislature ruled that third-time offenders, regardless of the degree of the crime, are not eligible for public defenders. Even prosecutors don’t seem to like the law.
“Obviously North Carolina has gone off the deep end a bit recently,” says one Charlotte public defender. “Everybody, even DAs, hate that December decision. They’re already challenging it.”
Another ADA in Raleigh adds: “What’s so hard for people to understand, to grasp, is not only is every courthouse totally different, but if you go to a different state, it’s like a foreign universe. I think North Carolina could gain a lot from seeing how other states handle the docket. So many of our senators and reps haven’t even set foot inside a courthouse.”
There is a long and worthy humor book, just waiting to be written, about the absurd persistence of 17th-, 18th-, and 19th-century law in certain states. In Alabama, it’s illegal to play board games on Sunday. In Kentucky, a woman cannot marry a man whom she has already married thrice before. In Connecticut, the penalty for stealing a goat is downright Levitican, and bull semen imports must be screened for indications of anemia. And Bostonians don’t often tell you about that one time in 1659 when Massachusetts outlawed Christmas. We tend to construe such legal residues as quaint, unenforced (or unenforceable), and essentially harmless, unless you were trying to buy whiskey in Connecticut on Sunday before 2012. (That sodomy remains illegal in states such as Mississippi, Idaho, North Carolina—the list goes on—is a long story for another day.)
Yet, if you pry yourself from the blooper reel of American jurisprudence to focus instead on state penal codes, you’ll notice one corner of the country where antique laws have bred regressive versions of due process, a problem less constitutional than cultural, given prosecutors’ control of the calendar and the demonstrated potential for abuse. (The office of the state Attorney General did not immediately respond to questions for this story.) For the usual reasons, victims of predatory court-practices are bashful about coming forward. Still, several have agreed to share their stories with Pacific Standard in the coming months. We’ll do our best to give them a voice.
*UPDATE — MAY 08, 2014: Due to a mix-up with reporting notes, we originally misattributed the words of UNC’s Robert P. Mosteller to Richard Myers.