From December 2020 to July 2021, Volume 99 of the North Carolina Law Review Forum published two articles, an essay, three recent developments, and four case briefs, covering various recent developments in the Fourth Circuit and North Carolina. The Executive Forum Editor was Caitlin S. Bell-Butterfield, and the Forum Editor was Jordan R. Briggs.
ARTICLE
James G. Exum, Jr. | December 2020
North Carolina’s system for imposing the death penalty is arbitrary, infected with racial bias, and error-prone. It is time for our state to abolish it. This Article chronicles how I reached this conclusion after five decades in the law, including nearly thirty years on the bench, eight of which as chief justice of the Supreme Court of North Carolina. Throughout my judicial career, I struggled to ensure the death penalty conformed with the law. But legal safeguards failed to live up to their promise, and I have concluded that a reliable death penalty system is beyond the ability of human beings to devise.
As a state legislator in the late 1960s, I worked unsuccessfully to persuade my colleagues to abolish the death penalty because I thought it was bad public policy that taught the wrong lessons about the value of human life. As a judge, however, I thought the death penalty was constitutional, or could be made so, and that it was my duty to enforce it. But after reviewing hundreds of capital cases, I came to see that, despite our best efforts, the death penalty was not—and will never be—rationally reserved for only the worst defendants who commit the worst crimes. Decades of accumulated evidence now proves that North Carolina’s death penalty is unconstitutional and should be brought to an end.
ESSAY
REFLECTIONS ON THE DACA CASES IN THE SUPREME COURT—THE “ILLUSION OF FREEDOM”
M. Isabel Medina | July 2020
This Essay explores the path that the DACA cases took to the Supreme Court, the dichotomy raised by the “good”-“bad” immigrant narrative—a narrative that President Trump has embraced—and how that narrative impacted the way the cases reached the Court. Although DACA recipients are the quintessential “good” immigrants, their fate is unlikely to be resolved by the Court’s decision in the DACA cases. Congress should act to grant DACA recipients, the living embodiment of the American Dream, a path to permanent residency and citizenship. But Congress should also address reform for those “bad” immigrants who bear the responsibility for deciding to migrate to the United States, in particular, the parents of the U.S. citizen and permanent resident children. The national conversation about immigrants should reflect the reality of human life and abandon simplistic views of choice about migration and work that render those choices, at the heart of the human experience, criminal.
RECENT DEVELOPMENTS
A DEAL WITH THE DEVIL: REEVALUATING PLEA BARGAINS OFFERED TO THE WRONGFULLY CONVICTED
Caroline H. Reinwald | June 2021
Innocent defendants end up in prison at alarming rates, and once convicted, it becomes next to impossible for them to get out. Even equipped with exonerating evidence, defendants face an uncertain, often decades-long quest for freedom. In some cases, though, an alternative path has emerged: prosecutors pressure the wrongfully convicted to make an Alford or no contest plea in lieu of exoneration. Although this allows for their release, it carries grave consequences: their name is never cleared, and significantly, under Heck v. Humphrey, they can never pursue a civil rights claim for their wrongful imprisonment because their conviction was not “favorably terminated.”
These plea deals are a menace to wrongful conviction claims, as this Recent Development explores through the Ninth Circuit case, Taylor v. County of Pima. Yet there is no wonder why prosecutors make them. Heck incentivizes these pleas as a way for municipalities to avoid civil liability for otherwise valid claims, and current ethical rules leave the door wide open to the practice, even though prosecutorial biases in this area are well established. Ultimately, this Recent Development argues that the use of these pleas should be dissuaded in two ways: first, through expansion of prosecutors’ ethical duties in actual innocence claims, and second, through courts’ reexamination of Heck’s favorable-termination requirements for civil rights suits.
A NEW EXPLANATION FOR EQUITABLE TOLLING UNDER § 1983 AND THE PRISON LITIGATION REFORM ACT
Rachel E. Grossman | June 2021
Prison-conditions lawsuits are notoriously difficult for incarcerated litigants to win. Prisoners who challenge the conditions of their confinement must overcome complex procedural barriers to secure their day in court. Among these barriers, the mandatory-exhaustion requirement of the Prison Litigation Reform Act of 1995 can be both confusing and time consuming. Prisoners often spend months pursuing administrative remedies before gaining access to federal court. Recognizing this, the Fourth Circuit decided in 2019 that prisoners who diligently pursue administrative remedies may toll the statute of limitations for 42 U.S.C. § 1983 prison-conditions suits as a matter of federal equitable law. The Fourth Circuit’s decision ensures that compliance with the Prison Litigation Reform Act of 1995 does not diminish prisoners’ access to judicial relief.
But the Fourth Circuit’s opinion also goes further than any other exhaustion-period tolling case decided before, fixing a rule adopted for various reasons by seven other circuits in the federal common-law doctrine of equitable tolling. This Recent Development examines the incoherence of the analyses in the jurisprudence between the Fourth Circuit and other circuits. It identifies two significant complications in the Fourth Circuit’s holding. First, the opinion leaves unaddressed the source of the court’s power to apply federal equitable law. Second, even assuming federal equitable relief was within the court’s power to provide, it is not clear that the Prison Litigation Reform Act of 1995’s exhaustion mandate is the kind of circumstance that would ordinarily warrant relief under the equitable tolling doctrine. By parsing and separately examining these issues, this Recent Development illuminates the Fourth Circuit decision’s strengths while identifying and buttressing its weaknesses.
Alexandra Franklin | February 2021
In the absence of robust federal climate change policies, North Carolina is one of the numerous states that has taken the initiative to thwart future climate change impacts within its own borders. North Carolina’s Clean Energy Plan is a necessary step toward creating a carbon neutral utility sector, but for the Plan to be effective, North Carolina must address the fact that a public utility system designed to function by providing the least expensive energy options does not neatly transition into a clean energy future when it requires additional financial investments.
The Clean Energy Plan’s recommendation to require utilities to include the social cost of carbon into their integrated resource plans is enigmatic of this tension. By its nature, the social cost of carbon involves artificially heightening the cost of fossil fuel resources. Irrespective of one’s feelings toward carbon intensive resources, it must be acknowledged that the least-cost model cannot easily be served in the state when a utility is required to base its energy portfolio off of energy prices that do not reflect the direct and actual cost of the fuel source.
This Recent Development provides a way forward with a solution through which North Carolina’s Utility Commission can legally consider the environmental impacts of a fuel source when evaluating the prudency of a public utility’s future energy investments. By tackling the issue at the source—the statutory parameters under which the Commission must function—this Recent Development proposes a solution that will provide a broader base on which both environmental advocates and the state’s largest utility can pursue their clean energy goals.
CASE BRIEFS
N.C. STATE CONFERENCE OF NAACP V. BERGER
Sarah A. Benecky | January 2021
North Carolina is no stranger to partisan fights and fraught relations between its legislative and executive branches. The 2016 election of Democratic Governor Roy Cooper only added fuel to the fire, prompting an ongoing battle with the North Carolina General Assembly, where Republicans have controlled both houses since 2010. Recently, in North Carolina State Conference of NAACP v. Berger, the Fourth Circuit vacated the Middle District of North Carolina’s order denying North Carolina General Assembly leaders a renewed motion to intervene in an action brought by the NAACP challenging Senate Bill 824 (“S.B. 824”), a recently enacted voter ID law.
Core to the majority’s reasoning was Section 1-72.2 of the North Carolina General Statutes, a statute “express[ing] the public policy of North Carolina that the President Pro Tempore of the Senate and the Speaker of the House represent the State in defense of its statutes.” Writing for the majority, Judge Quattlebaum found that the district court did not sufficiently consider Section 1-72.2 in its analysis of whether to permit intervention. The majority also found that the district court applied the incorrect legal standard in its Rule 24 analysis, and held that the legislators faced only a minimal burden in showing inadequacy of representation by the Attorney General. Notably, the majority declined to follow the Seventh Circuit’s recent decision in Planned Parenthood of Wisconsin, Inc. v. Kaul, a virtually identical case in the context of an antiabortion law. In doing so, the majority disregarded the Fourth Circuit’s own precedent and invited federal courts to become referees of partisan battles in which both parties ultimately share the same objective.
Sarah A. Benecky | January 2021
On August 14, 2020, the Supreme Court of North Carolina changed the course of Marcus Robinson’s life. The court vacated Robinson’s death sentence under the since-repealed Racial Justice Act (“RJA” or “the Act”), reinstating his sentence of life imprisonment without parole. This was not the first time Robinson had been taken off death row. In 2012, Robinson successfully challenged his capital sentence under the RJA and was resentenced to life imprisonment. However, the following year, Republicans strengthened their control over the North Carolina legislature. The legislature repealed the RJA and added a provision to make the repeal apply retroactively. Robinson returned to death row.
In its recent decision in State v. Robinson, the Supreme Court of North Carolina held that the trial court violated Robinson’s rights under the North Carolina Constitution by reimposing his death sentence pursuant to the repeal of the RJA. In the court’s view, the trial court’s 2012 finding that race was a substantial factor in Robinson’s sentencing constituted an acquittal of the death penalty for purposes of double jeopardy. The Robinson decision marked the first time the Supreme Court of North Carolina explicitly recognized the pervasive racial bias evident in the state’s use of capital punishment.
Laura E. Johnson | January 2021
The Fourth Circuit’s en banc review in United States v. Curry, which produced a 9–6 split, two forceful dissents, and four concurrences largely attacking those dissents, serves as a reminder that the majority’s analysis not only decides the outcome of the case at hand, but has the ability to draw attention to deep-rooted issues that divide our society. In Curry, the Fourth Circuit was faced with whether to expand the exigent circumstances doctrine under the Fourth Amendment to justify the suspicionless seizure of Billy Curry, Jr., the defendant. The majority declined to do so by outlining a new rule: officers may conduct suspicionless seizures only when they have specific information regarding a known crime in a controlled geographic area.
Meredith I. Lewis | January 2021
It is no secret that North Carolina courts fall drastically behind other states in regard to addressing racial discrimination in jury selection. The historic U.S. Supreme Court ruling in Batson v. Kentucky prohibited the use of race-based peremptory challenges in 1986, but North Carolina courts have continued to ignore and misapply the proper standard from that case. Notably, North Carolina remains the only state in the Fourth Circuit—and the South as a whole—whose appellate courts have found only one substantive Batson violation, despite having faced the issue over one hundred times. The Supreme Court of North Carolina issued a recent opinion on the matter in State v. Hobbs on May 1, 2020. This case represents the first time in ten years that the high court has heard a Batson challenge.
It is well established that a Batson challenge requires the trial court to conduct a three-step inquiry. First, the defendant must make a prima facie case of discriminatory intent; second, the State must offer a race-neutral justification for the challenge; and third, the trial court must determine if the defendant has proven purposeful discrimination. In Hobbs, the Supreme Court of North Carolina addressed problems with the lower courts’ review and decisions on steps one and three. Hobbs is an important case for North Carolina trial judges and attorneys because: (1) it emphasizes that the burden of proving a prima facie case is lower than that which is applied by North Carolina courts, (2) it clarifies the standard of review for district and appellate courts when reviewing Batson claims, and (3) it provides additional instruction and awareness to prosecutors when using peremptory strikes.