Reducing Penalties For Minor Offenses Could Save Attorney Expenses | Eastern North Carolina Now

    Publisher's note: The author of this post is Barry Smith, who is an associate editor for the Carolina Journal, John Hood Publisher.

    But many offenses remain misdemeanors, so savings may be illusory

    RALEIGH     State officials hope to save $2 million a year in indigent legal services by reclassifying some crimes to either low-level misdemeanors or infractions.

    By reducing the punishment, defendants would not have the right to a state-paid attorney, such as a public defender, because defendants under those reduced charges would not face the potential of jail time.

    "In the past, any time a person could under any circumstance go to prison, he was entitled to legal counsel," said Rep. Leo Daughtry, R-Johnston, who co-chairs a House subcommittee that deals with budget matters for the court system. "We're just trying to make it where we could lessen the impact of appointed counsel."

    The changes were included in the state budget, which passed the General Assembly this summer.

    But Danielle Carman, assistant director of the Office of Indigent Defense Services, questions whether the savings will be as great as anticipated since many of the offenses that were downgraded remain misdemeanors.

    "We're not going to save what they've projected we are going to save," Carman said.

    While people charged with infractions won't be entitled to defense attorneys because there's no possibility of incarceration, people charged with Class 3 misdemeanors could face prison time if they've had four or more previous convictions, Carman said.

    Some boating-safety offenses were changed from misdemeanors to infractions. They include not having a diver's flag on the mast of a boat where there is skin diving or scuba diving, failure to provide safety instruction for operators of leased personal watercraft (such as Jet Skis or Sea-Doos), or failing to obey no-wake rules in a boat.

    Many othere offenses were downgraded from Class 2 to Class 3 misdemeanors. Among them are fishing without a license, failing to carry a driver's license or registration card, failing to sign a registration card, failing to notify the DMV within 60 days of changing addresses, permitting a car to be driven by someone who has no license, driving while a license is revoked (except if it was revoked due to a DWI conviction), and failing to return rental property valued at $400 or less.

    Carman said that her office had recommended changing all those offenses to infractions, rather than low-level misdemeanors, as defendants would remain entitled to hiring a tax-paid attorney.

    Carman said a defendant's previous record normally doesn't come into play in the courtroom until after the defendant is convicted of the offense, long after the presiding judge has decided that the defendant is entitled to an attorney.

    "A lot of judges have already said to us, 'I'm going to err on the side of an appointed counsel,'" Carman said.

    Carman said she didn't know how district attorneys across the state would handle the change.

    Peg Dorer, director of the N.C. Conference of District Attorneys, did not respond to a request for comment.

    "It's probably going to create a lot of inconsistency," Carman said.

    Daughtry said the changes were made because those charged with minor offenses almost always were assessed fines rather than jail sentences. The General Assembly decided it was reasonable to change the law so that there would be no requirement to provide a state-paid lawyer.

    "The people charged with no fishing license would never go to prison," Daughtry said. "The question was, whether you're entitled to free legal advice."

    Keith Acree, a spokesman for the Department of Public Safety, said the changes would have "absolutely no effect on [the] prison population."