The North Carolina Law Review Forum, the journal’s online publication, is a space for speedy dissemination of timely articles and op-eds by academics, judges, practitioners, policymakers, and law students, as well as for lively discussion and responses to articles published in North Carolina Law Review. The Forum is committed to publishing pieces of special importance to practitioners in North Carolina. To that end, we especially invite submissions considering recent developments in the Fourth Circuit and North Carolina law. The Forum prefers submissions between 6,000 and 12,000 words, though will consider longer articles on an individual basis.
Volume 103
Volume 103 of the North Carolina Law Review Forum has published two articles and four case briefs and will continue to publish several articles over the coming year covering various recent developments in the Fourth Circuit and North Carolina. The Executive Forum Editor is Sam W. Scheipers, and the Forum Editors are Taylor Coleman, Jason T. Naulty, and Mia Thillet.
ARTICLES
THE HARDEST THING I’VE EVER DONE: REENTRY REALITIES OF CRIMINALIZED SURVIVORS
Emunah Evans, Marsha Weissman & Deborah M. Weissman | March 2025
Every year, hundreds of thousands of people throughout the United States are released from prison and face the challenges related to what Nelson Mandela called “the small things” required to manage day-to-day life. The vast literature spawned by what some have termed the “prisoner reentry industry” has focused its attention on instrumental needs of people leaving prison—employment, job training, and substance use treatment. Supports for how to manage “the small things,” however, has largely been ignored.
With respect to women returning from incarceration, their needs have been a secondary concern for the larger reentry movement. This is particularly true for basic reentry needs including housing, economic support, and parenting concerns. Women have gender-specific challenges in addressing these issues. And while both men and women experience the trauma of incarceration, for many formerly incarcerated women, the trauma of domestic violence and sexual and physical abuse magnifies their inability to reacclimate to post-prison life.
Reentry arguably has become the most popular of criminal justice reforms. At the same time, there has been mixed reaction on the part of advocates and academics to the so-called reentry movement. On the one hand, reentry as a criminal legal system reform leaves the basic structure of the U.S. system intact, doing little, if anything, to challenge the punitive policies that push people into prisons in the first place. While reentry programs implicitly recognize that social welfare policies and practices are at play in crime and justice, those considerations are placed at the back end, after someone has already spent years in prison. Yet on the other hand, standing side-by-side with these insightful critiques of reentry is the reality that people leaving prison themselves acknowledge the need for support in making the transition from years ensconced in a harsh total institution.
Our discussion of the reentry needs of women has been strengthened by the inclusion of a coauthor, Emunah Evans, who has experienced the criminal legal system and is a leader in North Carolina’s reentry efforts. Her insights throughout this Article on issues that affect women’s pathways to prison, reentry, and the role of directly impacted people in achieving criminal legal system reforms underscores the imperative of listening to the voices of those who have gone through and survived the system.
UNINTENDED CONSEQUENCES: NORTH CAROLINA VICTIM NOTIFICATION LAWS AFTER DOBBS
Catherine Dunham & Morgan Woodward | January 2025
When the United States Supreme Court rendered its decision in Dobbs v. Jackson Women’s Health Organization, the Court restricted a pregnant person’s right to make choices regarding their own bodily autonomy, a restriction that has no parity in the law as it pertains to biologically male persons. In Dobbs, the Court eliminated the distinctions between pre- and post-viability in an unborn fetus, thus inherently determining that all unborn persons are persons for purposes of abortion regulation. This decision effectuates a fundamental change in our understanding of legal personhood which will have multiple effects. For example, states with victim rights laws will need to consider the practical implications of victim notification in cases involving abortions performed in violation of state law. In those cases, states must determine who is the victim for purposes of victim notification. North Carolina’s victim rights laws were codified into a state law titled the Crime Victims’ Rights Act (“CVRA”). The intention of the CVRA was to provide victims with guaranteed rights while involved in the justice system. However, the CVRA was enacted without careful examination of who is the crime victim, a particularly complex issue in cases involving abortion-related crimes.
Since Dobbs, North Carolina and other states have been legislating partial and full abortion bans, consequently criminalizing the actions of pregnant persons who end their pregnancies illegally, without also establishing clarity on which persons are the victims of an abortion-related crime. For instance, if the victim of an illegal abortion is an unborn child, who serves as that child’s family member or guardian for purposes of victim notification? What if the victim of an abortion-related crime is an unborn child’s biological father or other family member? Can victim notification laws create a complex situation wherein the biological father of an unborn child has greater rights under the law than the pregnant person? Victim notification laws like North Carolina’s CVRA may inadvertently transport the complex issue of female bodily autonomy into a further perverted universe wherein the mother of an unborn child not only has limited freedom to choose her reproductive path, but an unborn child’s father has legal rights as the victim of an abortion-related crime.
CASE BRIEFS
Kathryn Turk | December 2024
Determining whether evidence is relevant in criminal proceedings can be a delicate balance. Too stringent a standard could block exculpatory evidence and lead to wrongful convictions. Too lax of a standard could overwhelm juries and derail trials. Under North Carolina law, the standard of relevance for evidence implicating third parties is that the evidence “must (1) point directly to the guilt of some specific person, and (2) be inconsistent with the defendant’s guilt.” In State v. Abbitt, the Supreme Court of North Carolina considered how to apply that standard where evidence suggested that the defendants may have had an unidentified accomplice—introducing the possibility that both the defendants and the implicated third party were involved in the commission of the crime. The Supreme Court of North Carolina deemed the evidence implicating a third party in Abbitt inadmissible because even though it tended to show a third party’s involvement, it was not inconsistent with the defendant’s guilt. In doing so, the court set a high bar for showing that evidence is “inconsistent with the defendant’s guilt” that may require future defendants to offer additional evidence that the third party was not their accomplice.
Sam W. Scheipers | December 2024
Despite parents, advocates, and courts reconceptualizing the termination of parental rights (“TPR”) as the “civil death penalty,” parents in TPR proceedings do not have a constitutionally guaranteed right to counsel. However, in an effort to ensure parental rights are only terminated when a parent cannot provide for their child’s physical and emotional well-being, North Carolina provides parents with a statutory right to counsel in TPR proceedings. This statutory right, codified in section 7B-1101.1 of the General Statutes of North Carolina, includes a requirement that the court appoint counsel to parents who are indigent.
And yet, in In re R.A.F., a mother facing the civil death penalty still found herself without counsel due to the limitations placed on indigent parents’ right to court-appointed counsel in TPR proceedings. After establishing a right to court appointed counsel, section 7B-1101.1 instructs that the court must dismiss a parent’s provisional court-appointed counsel upon a finding that any of several statutorily enumerated grounds exists, including a parent’s failure to appear at the first hearing. In In re R.A.F., the mother’s provisional counsel was dismissed pursuant to the failure-to-appear exception after the mother did not appear at the first hearing. She appealed the dismissal of her provisional counsel, arguing that although she failed to appear, the trial court judge’s single question to her provisional counsel, “[A]ny contact from your client, ma’am?,” failed to ensure the fundamental fairness of the procedures that resulted in the termination of her parental rights.
The Supreme Court of North Carolina disagreed. Rejecting the mother’s argument, the court held that the statutes were “abundantly clear” about the extent that a trial judge must inquire into a parent’s absence before dismissing their provisional counsel: a trial judge only needs to determine whether the parent is present at the first hearing; if they are not present, the parent’s provisional counsel is dismissed. In reaching this conclusion, the court determined that, unlike situations where counsel attempts to withdraw from representation, the unilateral dismissal of provisional counsel by the court does not require considerations of fundamental fairness.
Sam W. Scheipers | December 2024
A defendant’s right not to stand trial in a criminal case unless they are competent to do so is a bedrock principle of American jurisprudence. This right is enshrined in the Due Process Clause of both the Fifth and Fourteenth Amendments of the U.S. Constitution. The General Statutes of North Carolina codify this right as well by providing that a criminal defendant may not be “tried, convicted, sentenced, or punished for a crime” when they are not competent.
In State v. Flow, Scott Warren Flow’s statutory right to stand trial only when competent was arguably violated. After both Mr. Flow and the State had presented their closing arguments, but before the jury had received its instructions and begun its deliberations, Mr. Flow jumped off a second-story mezzanine at the Gaston County Jail. While he was in the hospital receiving surgery for his injuries, Mr. Flow asserted his statutory right not to stand trial because he was incompetent. His defense attorney asked the trial court, pursuant to section 15A-1002(a) of the General Statutes of North Carolina, to delay any further proceedings until it determined whether Mr. Flow had the capacity to proceed. The trial court subsequently conducted a hearing into whether Mr. Flow’s actions were voluntary, concluding that they were and that, therefore, the trial could proceed in his absence. On appeal, Mr. Flow argued that the hearing was insufficient because the trial court inquired into whether his actions were voluntary instead of whether he had the capacity to proceed as required by section 15A-1002(b)(1).
The Supreme Court of North Carolina disagreed. Addressing whether the trial court erred by not inquiring further into Mr. Flow’s capacity to proceed after concluding he had voluntarily absented himself, the Supreme Court of North Carolina held that the trial court’s hearing was statutorily sufficient. In resolving the issue, the court concluded that the hearing requirement in section 15A-1002(b)(1) is satisfied as long as a defendant is given “an opportunity to present any and all evidence” during a hearing.
CAROLINA YOUTH ACTION PROJECT V. WILSON
Megan Mills Rash | December 2024
In late October of 2015, at Spring Valley High, two young, Black high school students were settling into their seats for their algebra class. Both were unaware that they would be leaving school early in handcuffs and each facing criminal charges for “disturbing a school.”
One of the students, Niya Kenny, remembers being a bit late to class and barely noticing that the teacher was conversing with the other young girl, who was being admonished for having her cell phone out during class. Niya’s classmate refused to put her phone away, so the teacher called the school’s administration, which radioed for a school resource officer. As soon as Niya realized the responding school resource officer was Officer Ben Fields—known to the students as “Officer Slam” for his reputation of slamming students to the ground—Niya immediately began filming the interaction and encouraged other students to do the same.
Officer Fields flipped the student’s desk before flinging her out of her seat and onto the ground. As he dragged the student across the floor and out of the classroom, Niya jumped to her feet screaming for him to stop. The rest of the students froze and the teacher looked on while the student on the floor was dragged out, and Niya Kenny was the only one asking what the student had done to deserve this. Officer Fields turned to Niya and said, “[o]h, you have a lot to say? You’re coming too.”
Though the resource officer was later fired, charges were also filed against the two students. At a press conference a few days later, the sheriff was shocked and “almost offended” when asked if the charges against Niya were going to be dropped. According to his department, Niya had violated the law—and compared to the other students, she was the only one making a scene.
Niya Kenny was one of the plaintiffs in the recent class action suit, Carolina Youth Action Project v. Wilson. In Carolina Youth Action Project (“CYAP”), the Fourth Circuit decided the constitutionality of two provisions in South Carolina’s penal code that created misdemeanors for elementary and secondary schoolchildren who act disorderly or disturb schools. The Fourth Circuit held these laws as unconstitutionally vague due to the outlawed conduct being too broad and impossible to distinguish from typical child-like behaviors seen in grade schools.
It is impracticable to characterize the differences between criminal behavior and age-appropriate misbehavior of children due to the ambiguous conduct described in these laws. This lack of distinction forces children to become victims of the criminal justice system. CYAP is an example of how the courts can protect children in school and prevent the school-to-prison pipeline that has become increasingly prevalent in grade schools nationwide.
This Case Brief will provide a brief synopsis of the case, analyze the legal issues, explore these types of laws in other states, including in North Carolina, and conclude by discussing the potential implications of the Fourth Circuit’s decision. Niya’s story is not unique. However, her courage to speak out against police abuse in schools highlighted the issues with intertwining schools’ disciplinary processes with the criminal justice system. In doing so, she became part of the large class of plaintiffs fighting to prevent kids from going to jail for “simply acting their age.”