North State Journal for Sunday, June 26, 2016
A7
Guest Opinion | christine mumma
The time is ripe for criminal justice reform in North Carolina
Battleground North Carolina
The N.C. Commission on the Administration of Law and Justice is working to develop proposed reforms for the court system as a whole and criminal justice in particular.
efore the 2008 election, North Carolina’s outcome in the presidential B contest was almost always a foregone
A
t the national level, there is vigorous bipartisan support for significant criminal justice reform. The issues being discussed include overcriminalization, overuse of prisons as a repository for the mentally ill and those with substance abuse problems, a pre-trial release system that results in lengthy periods of incarceration based on lack of money to post bail rather than guilt, and an indigent defense system that fails to provide the basic defense necessary to ensure that poor people are treated fairly by the government. Criminal justice reform is one of the few issues that garners support from groups on both sides of the political aisle, including Koch Industries and the Cato Institute on the right and George Soros and Open Society Foundations on the left. As Mark Holden, general counsel of Koch Industries, has stated, “[w]e need to address issues such as overcriminalization, excessive and disproportionate sentencing, [and] inadequate indigent defense that is inconsistent with the Sixth Amendment.” To the attorneys and others who work in North Carolina’s criminal justice system, it appears that the bipartisan dialogue and support for reform has not reached our great state, even though state-level criminal justice systems touch far more lives and face the same issues as
the federal system. Our jails hold not only dangerous criminals, but also people who suffer from mental illness and drug addiction or who are simply too poor to pay a bondsman. North Carolina is now the only state in the nation that treats all 16- and 17-year-olds as adults in criminal court, often subjecting them to the life-long stigma of a criminal conviction for errors in judgment that are the hallmark of adolescence. And the court-appointed lawyers who provide representation for poor people who are constitutionally entitled to representation at state expense — over half of the people in the criminal justice system — have seen their pay significantly reduced and their caseloads increased while being expected to meet the demands of an increasingly complex body of criminal law. The reduced resources have put an unsustainable strain on both the private lawyers who accept court-appointed cases and full-time public defenders. Not surprisingly, a recent poll conducted by Elon University revealed that 64 percent of North Carolinians believe that low-income people are treated worse by the courts than those with resources. North Carolina needs to join the national, bipartisan effort to improve our criminal justice system. Fortunately, North Carolina Supreme Court Chief Justice Mark Martin has put into motion a vehicle
for real reform — the North Carolina Commission on the Administration of Law and Justice — which is working to develop proposed reforms for the court system as a whole and criminal justice in particular. The NCCALJ is examining the investment that needs to be made to strengthen indigent defense, the need to send 16- and 17-year-olds to specialized courts for juveniles rather than adult criminal court, and the need for a rational pre-trial release system. The commission will hold a series of public hearings in August, and will finalize recommendations in time for the 2017-18 legislative session. The proposals from the commission will represent the result of significant work by a large number of people from a variety of backgrounds, all of whom share a common interest in and commitment to improving the justice system. North Carolina’s citizens need to urge our leaders to take this opportunity to make needed improvements to our criminal justice system. Christine Mumma is executive director of the North Carolina Center on Actual Innocence, and serves on the Commission on Indigent Defense Services as an appointee of the North Carolina Senate. From 2002 to 2007, she was also the executive director of Chief Justice I. Beverly Lake, Jr.’s Criminal Justice Study Commission.
Columnist | Michael Munger
Can we bear arms? ave you read the Second Amendment? It’s short: “A well regulated militia being H necessary to the security of a free state, the right
The N.C. Commission on the Administration of Law and Justice is working to develop proposed reforms for the court system as a whole and criminal justice in particular.
Jonathan Kappler
of the people to keep and bear arms shall not be infringed.” Some read it as being “about” state militias; but then why “right of the people”? Others claim “arms” means muskets, more familiar to the Founders. But then the First Amendment must protect only movable-type hand presses. If the First Amendment protects Twitter, the Second Amendment protects modern weapons. On the other extreme some read only the imperative: “not be infringed.” But then why “well regulated”? The First is imperative: “Congress shall make no law…”; the Second Amendment isn’t. My own view is that the Supreme Court got the Second Amendment right, finally, in the 2008 Heller case, overturning some remarkably dumb aspects of the 1939 Miller decision. Heller recognizes (it was always there!) a presumptive individual private right to own — and “bear,” meaning actually carry — arms. But Heller preserves substantial latitude for legislative assemblies to impose restrictions, rules, and conditions. So the only actual question is which restrictions, rules and conditions? The media isn’t much help. Many have taken to fibbing, decrying “assault rifles” (they aren’t) that “fire eight rounds per second” (maybe three, for semi-automatic guns). At best, the media call these vague “weapons that should be banned” assault-style guns, or AR-15style rifles. Style? Really? If it matters, the gun in Orlando was completely different, a SIG Sauer MCX, more like an AK-47 than an AR-15. But it was not automatic, not a machine gun, not an assault rifle. It looks like a military gun (is that style?), but it’s one round per pull of the trigger. It happens I have a nice 9 mm Beretta pistol. According to the gun-ban zealots, it is an “assault-style rifle.” Yes, really: It is semi-
automatic (one round per trigger pull, just like the gun in Orlando), and it has a magazine that holds more than seven rounds. It’s not surprising that gun defenders go on offense when a ban on “assault rifles” is so vague it includes the forcible confiscation of target pistols. To me, “well regulated” sounds like a driver’s license. No one can be banned from driving, without cause. But behave irresponsibly, or fail to get enough training and skills to drive well, and you don’t get to drive. I think guns ownership is analogous. We can’t impose universal, and foolishly vague, restrictions on the ownership of modern guns. But we can require registration, background checks, classes and tests to show proficiency, and threaten forfeiture if the right is used irresponsibly or to endanger others, even through negligence. Gun ownership is a right that relates to a basic republican duty to participate in the governance, and the defense, of the community, and it is attached to responsibilities. Chicago — with heavy gun control — had nearly 7,000 gun homicides in 2015. Murder is illegal, but if someone wants to commit a crime, committing another crime to obtain a gun is no deterrent. Chicago would likely to do well to expand gun ownership — “well regulated” — rather than try to restrict it. Finally, I understand that none of the rules I’m proposing would have prevented the Orlando attack. Even a total ban wouldn’t stop a determined terrorist from using a pressure cooker or gasoline bomb, or obtaining a gun illegally. But that’s not the point. We can’t prevent individual events after they have happened. We should be developing a comprehensive vision of what the right to keep and bear arms, and regulating it well, would look like. We should go back to the Second Amendment, both parts. Michael Munger is a professor of and director of the Philosophy, Politics, and Economics Program at Duke University.
conclusion. In 2008, the concept of North Carolina as a presidential battleground state was so unfamiliar to the national press that I heard stories saying they kept pulling their reporters out of the state, then sending them back. President Obama ultimately eked out a 0.4 percent win over Sen. John McCain. The 2008 presidential race in North Carolina was the second-closest in the country (just behind Missouri, which McCain very narrowly won). In 2012, North Carolina was more squarely on the electoral radar. While Obama narrowly lost North Carolina in that election, it was once again the secondclosest contest in the country (Florida was a bit closer), and more was spent on TV advertising here — $97 million — than all but three other states (Florida, Virginia, and Ohio). That brings us to 2016. Barring some cataclysmic event, the Republican nominee will be Donald Trump and the Democratic nominee will be Hillary Clinton. It’s time to take stock: is North Carolina a battleground state once again? Several major national media outlets maintain race ratings for each state in the presidential contest. Reporters and analysts aggregate data and talk with sources across the political spectrum in order to come up with their ratings. Of the eight credible organizations that have released race ratings, seven of them have North Carolina a “toss up” and one categorizes the state as “leans Democratic.” At this point, there is broad consensus that North Carolina is competitive.
Clinton’s campaign has spent $3.7 million on ads in N.C. in June and July
And while it’s still relatively early yet, there is enough polling data for two frequently cited websites to have polling averages for the presidential contest in North Carolina. In the Real Clear Politics polling aggregator, Trump has a 1 point lead in the state, and the Huffington Post/ Pollster data set has Trump with a slightly larger average lead of 1.7 points. In polling terms, it’s hard to distinguish that data from a tie, especially at this early date in the political calendar. Perhaps the most valuable asset a campaign has is the candidate’s time. Where a presidential candidate is holding campaign events is an important sign of which states they perceive as winnable with enough effort, and we recently got a couple of good indications that both the Trump and Clinton campaigns see North Carolina as within reach. Donald Trump held a rally in Greensboro on June 14, and Hillary Clinton came to Raleigh on June 22. If we see repeat visits from the candidates, this won’t be because they just love North Carolina barbeque. And along these lines, hallmarks of most modern presidential campaigns are TV ads and large staffs strategically located in campaign field offices around contested states. It’s a bit early yet for General Election campaign advertising to start in earnest and a complete network of campaign offices to be built out, but how many ads you see and how many staffers are hired will give you a good sense if the campaigns believe the state is within reach or not. One clue: Clinton’s campaign has spent $3.7 million on ads in N.C. in June and July, the third most of any state so far. Finally, following the U.S. Supreme Court’s Citizens United decision in 2010, the quickly established new normal in races is for well-financed outside organizations to spend heavily on ads and other activities once reserved for political parties and campaigns. Already we’ve seen one notable Democratically aligned outside organization — Priorities USA — commit to spending $9 million on TV ads in North Carolina through the election. Judging by the actions of the candidates, their campaigns, and the data available to us at the moment, it seems clear that North Carolina begins the General Election phase of the 2016 campaign among the battleground states. However, in the context of modern presidential campaigns, things can change rapidly and conventional wisdom can fall by the wayside quickly. Just because the best information available to us now points in this direction, it’s not locked in that trajectory. For now, it appears both sides are suiting up in the Tarheel State. Jonathan Kappler is a graduate of the N.C. Institute of Political Leadership and earned a master’s degree in public policy from American University and a political science degree from Appalachian State University. He lives in Chapel Hill.