Menus Subscribe Search

The Law Won

nc-courthouse

A courthouse in Jackson County, North Carolina. (Photo: Terrie L. Zeller/Shutterstock)

A Touch of Guantánamo Off I-95: Detention and Predation in North Carolina

• April 29, 2014 • 5:00 AM

A courthouse in Jackson County, North Carolina. (Photo: Terrie L. Zeller/Shutterstock)

Why the state needs to crack down on its predatory prosecutors—fast.

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 really does. Damon Chetson, a criminal defense lawyer in Raleigh, has been chronicling the state’s regressive, strong-arm judicial culture for years.*

“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.

Ted Scheinman
Ted Scheinman has written for the Los Angeles Review of Books, Slate, the Paris Review, the Oxford American Quarterly, and elsewhere. His first book of non-fiction will appear via Faber in 2014. Follow him on Twitter @Ted_Scheinman.

More From Ted Scheinman

A weekly roundup of the best of Pacific Standard and PSmag.com, delivered straight to your inbox.

Recent Posts

July 29 • 6:00 AM

What Are the Benefits of Locking Yourself in a Tank and Floating in Room-Temperature Saltwater?

After three sessions in an isolation tank, the answer’s still not quite clear.


July 29 • 4:00 AM

Harry Potter and the Battle Against Bigotry

Kids who identify with the hero of J.K. Rowling’s popular fantasy novels hold more open-minded attitudes toward immigrants and gays.


July 29 • 2:00 AM

Geographic Scale and Talent Migration: Washington, D.C.’s New Silver Line

Around the country, suburbs are fighting with the urban core over jobs and employees.


July 28 • 4:00 PM

Border Fences Make Unequal Neighbors and Enforce Social Inequality

What would it look like if you combined Israel, the West Bank, and Gaza, demographically speaking? What about the United States and Guatemala?


July 28 • 2:00 PM

Are Patient Privacy Laws Being Misused to Protect Medical Centers?

A 1996 law known as HIPAA has been cited to scold a mom taking a picture of her son in a hospital, to keep information away from police investigating a possible rape at a nursing home, and to threaten VA whistleblowers.


July 28 • 12:00 PM

Does Internet Addiction Excuse the Death of an Infant?

In Love Child, documentary filmmaker Valerie Veatch explores how virtual worlds encourage us to erase the boundary between digital and real, no matter the consequences.


July 28 • 11:11 AM

NASA Could Build Entire Spacecrafts in Space Using 3-D Printers

This year NASA will experiment with 3-D printing small objects in space. That could mark the beginning of a gravity-free manufacturing revolution.


July 28 • 10:00 AM

Hell Isn’t for Real

You may have seen pictures of the massive crater in Siberia. It unfortunately—or fortunately—does not lead to the netherworld.


July 28 • 8:00 AM

Why Isn’t Obama More Popular?

It takes a while for people to notice that things are going well, particularly when they’ve been bad for so long.


July 28 • 7:45 AM

The Most Popular Ways to Share Good and Bad Personal News

Researchers rank the popularity of all of the different methods we have for telling people about our lives, from Facebook to face-to-face.


July 28 • 6:00 AM

Hams Without Ends and Cats Tied to Trees: How We Create Traditions With Dubious Origins

Does it really matter if the reason for why you give money to newlyweds is based on a skewed version of a story your parents once told you?


July 28 • 4:00 AM

A Belief in ‘Oneness’ Is Equated With Pro-Environment Behavior

New research finds a link between concern for the environment and belief in the concept of universal interconnectedness.


July 25 • 4:00 PM

Flying Blind: The View From 30,000 Feet Puts Everything in Perspective

Next time you find yourself in an airplane, consider keeping your phone turned off and the window open.


July 25 • 2:00 PM

Trophy Scarves: Race, Gender, and the Woman-as-Prop Trope

Social inequality unapologetically laid bare.


July 25 • 1:51 PM

Confusing Population Change With Migration

A lot of population change is baked into a region from migration that happened decades ago.


July 25 • 1:37 PM

Do Not Tell Your Kids That Eating Vegetables Will Make Them Stronger

Instead, hand them over in silence. Or, market them as the most delicious snack known to mankind.



July 25 • 11:07 AM

The West’s Groundwater Is Being Sucked Dry

Scientists were stunned to discover just how much groundwater has been lost from beneath the Colorado River over the past 10 years.


July 25 • 10:00 AM

Shelf Help: New Book Reviews in 100 Words or Less

What you need to know about Bad Feminist, XL Love, and The Birth of Korean Cool.



July 25 • 8:00 AM

The Consequences of Curing Childhood Cancer

The majority of American children with cancer will be cured, but it may leave them unable to have children of their own. Should preserving fertility in cancer survivors be a research priority?


July 25 • 6:00 AM

Men Find Caring, Understanding Responses Sexy. Women, Not So Much

For women looking to attract a man, there are advantages to being a caring conversationalist. But new research finds it doesn’t work the other way around.


July 25 • 4:00 AM

Arizona’s Double-Talk on Execution and Torture

The state is certain that Joseph Wood’s death was totally constitutional. But they’re looking into it.


July 24 • 4:00 PM

Overweight Americans Have the Lowest Risk of Premature Death

Why do we use the term “normal weight” when talking about BMI? What’s presented as normal certainly isn’t the norm, and it may not even be what’s most healthy.


July 24 • 2:00 PM

California’s Lax Policing of the Fracking Industry Has Put the Drought-Stricken State in a Terrible Situation

The state’s drought has forced farmers to rely on groundwater, even as aquifers have been intentionally polluted due to exemptions for the oil industry.


Follow us


Subscribe Now

NASA Could Build Entire Spacecrafts in Space Using 3-D Printers

This year NASA will experiment with 3-D printing small objects in space. That could mark the beginning of a gravity-free manufacturing revolution.

The Most Popular Ways to Share Good and Bad Personal News

Researchers rank the popularity of all of the different methods we have for telling people about our lives, from Facebook to face-to-face.

Do Not Tell Your Kids That Eating Vegetables Will Make Them Stronger

Instead, hand them over in silence. Or, market them as the most delicious snack known to mankind.

The West’s Groundwater Is Being Sucked Dry

Scientists were stunned to discover just how much groundwater has been lost from beneath the Colorado River over the past 10 years.

How Wildlife Declines Are Leading to Slavery and Terrorism

As wildlife numbers dwindle, wildlife crimes are rising—and that's fueling a raft of heinous crimes committed against humans.

The Big One

One in two full-time American fast-food workers' families are enrolled in public assistance programs, at a cost of $7 billion per year. July/August 2014

Copyright © 2014 by Pacific Standard and The Miller-McCune Center for Research, Media, and Public Policy. All Rights Reserved.