Word on the Street in NC

Post from Ron:
I spoke earlier this week with the prosecutors in an urban office in North Carolina about Blakely, and their comments fit in fascinating ways with the observations of the Minnesota Sentencing Commission (background here). As in Minnesota, the basic structure seems to be holding water, and the number of affected cases is pretty small. Basically, these prosecutors were not terribly worried about Blakely in the short run. Although the case will almost surely prevent all “aggravated range” sentences (the North Carolina equivalent of upward departures), those were only 7% of the sentences imposed last year. For high-volume crimes like drugs or property offenses, it is simply not worth the effort right now to move from the presumptive range (say, 16 to 20 months) up to the aggravated range (say, 20 to 24 months). Volume, combined with the limited benefits of upward adjustments, convince most prosecutors not to bother with new techniques to obtain jury findings.

That being said, there are two settings that might prove more worrisome for these prosecutors in the future. First, they anticipate filing superseding indictments and perhaps asking for bifurcated jury proceedings in homicides and serious violents crimes, because the potential upward adjustments to sentences are much larger here. And second (consistent with comments from Minnesota), they believe that the “custody status” point (see background memo by Robert Farb linked here) will be important to them in a fairly large number of cases, where the extra point can bump a defendant into the next highest criminal history category.