Constitutional Claims in the Wake of Montgomery v. Louisiana

Earlier this week, Eric Zogry blogged about the United States Supreme Court decision in Montgomery v. Louisiana, 577 U.S. ___ (2016), which made the holding of Miller v. Alabama, 567 U.S. ___ (2012) retroactive. The upshot of the decision is that approximately 79 inmates in North Carolina need to be re-sentenced. But how should those sentencing hearings work? Just after the United State Supreme Court issued its decision in Miller, the North Carolina General Assembly passed “An Act to Amend the State Sentencing Laws to Comply with the United States Supreme Court Decision in Miller v. Alabama.” By its terms, the Act applies to “any sentencing hearings held on or after” July 12, 2012. So it would appear to apply to sentencing hearings for defendants entitled to relief under Montgomery v. Louisiana. The Act also permits defendants to present mitigating circumstances to the court including, among other things, the defendant’s age at the time of the murder, immaturity, and exposure to familial or peer pressure. The Act then directs the sentencing court to consider the mitigating circumstances and determine whether, “based upon all the circumstances of the offense and the particular circumstances of the defendant, the defendant should be sentenced to life imprisonment with parole instead of life imprisonment without parole.”

Defense attorneys rightfully view the decision in Montgomery v. Louisiana as a victory for defendants who were sentenced to life without parole for first-degree murder convictions that arose when the defendants were juveniles. But the case for these defendants is not that simple. Look carefully at the Act and you’ll see at least two arguments that defendants who are entitled to sentencing hearings after Montgomery v. Louisiana should make before they are sentenced under the Act. These two arguments, which are described below, are also the subject of an appeal that is currently pending in the North Carolina Court of Appeals.

 I. Cruel and Unusual Punishment

The first argument to consider is an Eighth Amendment claim that the Act contains a presumption favoring sentences of life without parole. According to the Act, the sentencing judge must determine whether the juvenile should be sentenced to life in prison with parole “instead of” life in prison without parole. The use of the phrase “instead of” indicates that the default sentence under the Act is a sentence of life without parole. Further, the Act puts the burden on the defendant to demonstrate circumstances that would reduce the sentence. In other words, there is no burden on the State to present aggravating factors that would support the more severe sentence of life without parole – a sentence that the United States Supreme Court has stated should be “uncommon.”

 II. Due Process

The second argument to consider is a claim that the Act violates Due Process because it fails to provide meaningful guidance to sentencing judges on how to choose a sentence. The Act does not indicate how the sentencing judge should weigh the mitigating circumstances before deciding on a sentence. Instead, the judge must simply “consider” the mitigating circumstances in determining the sentence. Additionally, there is a risk that the sentencing judge could use mitigating circumstances to justify a sentence of life without parole. For example, although the juvenile might present evidence of good grades to show the potential for rehabilitation, the sentencing judge might rely on that evidence to support a sentence of life without parole on the ground that the juvenile had the ability to appreciate the risks and consequences of his conduct.

Conclusion

It is imperative that defense attorneys assigned to represent defendants at sentencing hearings under Montgomery v. Louisiana carefully consider these and other constitutional arguments before the hearings are scheduled. Appellate courts routinely state that constitutional issues that are not raised in superior court “will not be considered for the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87 (2001). If these constitutional arguments are not made in superior court and the sentencing judge imposes a sentence of life without parole, appellate courts will not consider these arguments on appeal.

 

David Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent criminal defendants on their appeals to the North Carolina Court of Appeals and the North Carolina Supreme Court. He can be reached by email at David.W.Andrews@nccourts.org.

 

Montgomery v. Louisiana: Retroactivity and Reinforcement

On January 26, 2016 the United States Supreme Court determined in Montgomery v. Louisiana 577 U.S. ___ (2016) that the decision of Miller v. Alabama, 567 U.S. ___ (2012) applies retroactively to juveniles who are currently serving life without parole sentences. Miller held that, even for convictions of first-degree murder, mandatory sentences of life without the possibility of parole are unconstitutional for juveniles (i.e., defendants who were under the age of 18 at the time of the offense). The result of this decision was that many states, including North Carolina,1 changed their statutes to create an opportunity for parole for juveniles serving life sentences. When Miller was first handed down, it was unclear from the Court’s decision whether the holding could be applied retroactively to defendants currently serving sentences of life without the possibility of parole. Montgomery clarified that the Miller decision can be applied retroactively and may lead to the review of sentences for former juveniles currently incarcerated under life sentences in North Carolina and around the country.

Beyond the direct impact of Montgomery, attorneys should take note of the Supreme Court’s consistent theme of adolescent development and criminal culpability. The decision in Montgomery marks the fifth time in ten years the Court has declared “kids are different.”2 Specifically in Montgomery Justice Kennedy contrasts “transient immaturity” to “irreparable corruption,” reinforcing the idea that criminal responsibility for the accused under 18 should be considered on an individual basis.

While Montgomery, Miller, Graham and Roper focus on punishment, the same analysis can be applied further in juvenile and criminal proceedings. Both juvenile and adult defenders should make this contrast a go-to strategy in their playbook. For any clients under the age of 18, defenders should consider how developmental advocacy strengthens their case. For example, does your client’s age and/or development impact capacity to proceed in the case? Is there a specific intent element to the charge that is vitiated due to a lack of ability to form the intent? How is incarceration really “getting the intention” of the youth, while imprinting permanent, negative physical and emotional experiences?

For more information on Montgomery and its potential impact, please see the following link.

1 N.C.G.S. 15A-1340.19A, -1340.19B, -1340.19C
2 Roper v. Simmons, 543 U.S. 551 (2005) (eliminating the death penalty for juveniles), Graham v. Florida, 560 U.S. ___ (2010) (eliminating life without parole for non-homicides for juveniles), J.D.B. v. North Carolina, 564 U.S. ___ (2011) (age is a factor in determining whether a juvenile is “in custody” under Miranda), Miller v. Alabama, 567 U.S. ___ (2012)

 

Eric Zogry is the ‎Juvenile Defender at Office of the Juvenile Defender, Office of Indigent Defense Services in Raleigh. To contact Eric Zogry and learn more about the Office of the Juvenile Defender visit https://ncjuveniledefender.wordpress.com/.

Anti-immigration policy poses a grave threat to the state’s economy and security

Before I begin, I’d like to acknowledge that the only people on this continent who can credibly offer an argument for anti-immigration policy exist primarily on plots of land scattered throughout America specifically reserved for them to remain there as Indians – the ones we found not the ones we sought after.

It’s trapped beneath that inescapable undertow where I hesitantly tread forward.

After President Obama addressed the nation last fall to announce an executive order meant to encourage undocumented immigrants who contribute to America’s labor force to engage the process of naturalization, several state governments made it their mission to convince immigrants who took ungodly risks to flee from their country for a better life to turn around and head back. Under Governor McCrory’s leadership, North Carolina was one of those states. He signed into law HB 318, a bill that prohibits government officials from accepting certain documentation like municipal identification or matricula consulars from immigrants. Such a policy furthers the agenda to make E-Verify mandatory, a program that requires anyone who wants employment in the United States to ask the government’s permission prior to employment with the electronic disclosure of private information. This video from the ACLU does a much better job than I can to explain the potential problems existent in the program. In addition, the inability to use municipal identification decreases the likelihood otherwise undocumented immigrants will seek the help of law enforcement for matters like rape and domestic abuse. That sends a pretty strong message for them to leave.

Now, in the context of recent terrorist attacks in Europe and the rising influence of the self-proclaimed Islamic State, Governor McCrory appealed to the public’s largely uninformed fear of Syrian refugees and their unsubstantiated ties to the very terrorist cells responsible for murdering many of their close relatives and friends. Only three days after the tragic attacks in Paris, he called for an end to a refugee program that allowed entry to the United States through an exhaustive immigration process that already contemplated continuing investigations into the immigrant’s network. The gut reaction Governor McCrory exhibited, which to be fair drew praise from several other state leaders, panders predictively to the exact feelings terrorism is designed to create, as North Carolina singled out Syrian refugees who fled the harsh rule of a faith-based organization. It’s very difficult to take that seriously, most obviously because America is a secular nation the origins of which largely began with a group of people crazy enough to cross the Atlantic in a rackety old ship to precisely avoid the tyranny of divine leadership.

Alas, for a man in the state’s highest political office to make such a declaration, you’d think there was some actual worth to it, so I took the vantage point of his specialty prior to office – business, and forsook against better judgment the limited value of my liberal arts education. Even from that viewpoint, such a policy promises to profoundly harm the state’s economy and security in days to come.

For one thing, a recent case study from Alabama strongly suggests anti-immigration policy fails economically. If Governor McCrory succeeds and undocumented immigrants are forced out of North Carolina, what can we expect? Thomas Morton, a VICE correspondent, reported that Alabama bore witness to an exodus of immigrants in unprecedented amounts after it enacted similar policy in 2011. As a result, Alabama lost an entire workforce necessary to contribute to its GDP. Produce farmers attempted to fill the void left in the wake of Alabama’s immigrant exodus with almost anyone. “They couldn’t hack it, just the sheer physicality of it,” said Jerry Spencer, a produce farmer in Alabama who Morton interviewed in the report. Long story short, immigrants perform jobs no one else wants to perform. You already know that unless your primary residence is under a rock. According to the report, Alabama’s government felt this blow impressively, as it lost over $10,000,000,000, (trump change, I know), in lost income and tax revenues it would have otherwise collected absent the anti-immigration policy. It was devastating for the economy and North Carolina would be wise to pay attention to those results.

So economically it’s a horrible idea, but it must make us safer, right? Wrong. Data suggests crime rates did not drop at all. The drug trade continued in Alabama, probably in large part because the people whose lives depended on drugs continued to depend on drugs after the immigrants left.

As for refugees, the extra screening measures planned for those who hail from targeted nations will likely increase an already excruciating process for refugees to immigrate lawfully to the United States. Such a focus might help fuel political momentum but it comes at the risk of missing entirely the greater danger of the ability of terrorist cells to recruit through their use of the internet. The greater threat to our state and national security lies in the propaganda set forth in the channels of the world wide web. It’s remarkable how well these terrorist networks infiltrate the minds of susceptible youth through the use of 21st century technology. Even the groups steadfast in their belief of 7th century geo-political philosophy understand success is measurably greater through access like that.

On the other hand, history suggests that American lives are much safer directly as a result of its open minds and borders, as anti-immigration policy not only threatens the substantive contribution of immigrants, but it also destroys the friendly, self-confident American identity that sets us apart as leaders, innovators, and progressives – the precise collective makeup that makes us the envy, not the contempt, of the world, and the precise collective makeup that makes America the safest place on earth. If we lose that identity, then we lose that security; if we abandon our principles, then we lose the moral backbone that justifies our substantial defense spending.

One example not nearly distant enough in the world’s historical landscape comes to mind. Within the last century, a man accepted a visiting professorship at Cal-Tech while he and his family fled religious persecution at home. A renowned physicist, this man became a professor at a local university in Germany prior to 1933 when he left Germany for good. His professional rise unfortunately coincided with another man’s ascent to power, Adolf Hitler, who eventually secured Germany’s highest post and began to ethnically cleanse Europe.

This man was Albert Einstein, a Jew, and America accepted him where Germany did not, a decision for which the rest of the world is very thankful. Einstein marveled at the citizenry that contributed to America’s culture. His observations as an immigrant, as someone who might now feel unwelcome, are poignant in context of today’s political rhetoric. When he first came to America, he had this to say about its citizens: “the American is friendly, self-confident, optimistic, and without envy” while “the European is more critical, more self-conscious, less kind-hearted and helpful, more isolated.” He reasoned that America stood in the position to shape the future of international policy because its collective moral compass pointed in the direction of good, not evil – an objective value more so than a religious one. That is what made America secure. Despite Einstein’s contempt for the use of science to pursue evil endeavors (like weapons), he put the strongest one comprehensible to man in the hands of our government. Would he trust us now? Are we that same friendly, self-confident, and optimistic people he once knew? Can we be secure without that identity?

With that in mind, and in the spirit of rampant birther arguments, perhaps its best to look inward for those who pledge to make America great again.  Are you even American?

 

Taylor Hastings is the owner and founder of Hastings Law & Counsel, PLLC, a law firm located in Chapel Hill, North Carolina and serves clients throughout the triangle with a myriad of their legal issues. The firm focuses on providing clients with quality representation while also being aware of the difficulty many face with the cost of legal help. Please call 919-913-4701 or visit www.hastingsnclaw.com to speak with staff or an attorney for more information.

Making A Murderer? How about a Better Criminal Justice System

By the time I received the fourth text asking if I had watched “Making a Murderer,” it was clear I needed to check out the Netflix series. Especially since only one of those four texts came from a friend who is also a fellow criminal defense lawyer. I love it when non-lawyers get interested in what happens inside our seemingly insular world and relish the opportunity to educate others about various realities within the criminal justice system – realities that millions of people will never experience firsthand. And watching this series made me realize that it isn’t just an opportunity each of us has to educate – each of us has an absolute responsibility to explain, to teach and to dismantle the mystery that is the criminal justice system to many.

I promise there are no spoilers in this post – just don’t look at the cover of People Magazine if you haven’t watched the series and you want to be surprised. I will simply say this: “Making a Murderer” is a shocking, raw look at how the criminal justice system can operate. If you are a criminal defense lawyer, you will nod, shake your head and at times yell out loud. You will watch things happen that you have experienced and tried to explain. You will identify with gut-wrenching moments of despair, helplessness and outrage. But anyone who watches the series cannot help but wonder how many of the twists and turns and apparent bad acts could actually happen.

As criminal defense lawyers, we have a unique insight into how the unthinkable can happen. We are often pushed into the role of amateur psychologist when we are reading through discovery, watching witness interviews or selecting a jury. We see human nature firsthand in some of the most intense situations imaginable – and those unimaginable, too. We understand that we are all human beings.   Law enforcement, victims, defendants, prosecutors, ourselves. We understand in an intimate way how each of us sees the world through our own personal prism. The reality we know and inhabit is one in which we understand that each of us has certain ways in which we immediately judge people, ways in which we make assumptions, ways in which we shortcut our thinking process by using previous experiences as a guide, rather than using fact. To know that truth as dearly as we do is a privilege; it also creates a responsibility.

At dinner the other night with two non-lawyer friends, Karen and Steve, who had not yet seen the series but listened intently to our description of the basic details, Karen asked the obvious question when she inquired, “What can we do to change things? I mean, if this can really happen then what can we do?” There are reflexive answers, like make sure law enforcement is properly trained or create basic legal education classes about individual rights and how the system operates. But there are also answers, I think, that require us, as lawyers, to act. Not in a way that attacks law enforcement or reinforces stereotypes about hotheaded criminal defense lawyers, but in a thoughtful, honest manner. A manner that requires us to leave open the possibility our own view might be incorrect. Indeed, I am not sure whether my view of “Making A Murderer” is a fair one or whether I am allowing the series to confirm what I already believe. What I am sure of is this: the series raises significant questions that should not be left unaddressed. Questions about our system of justice and every player within that system. I wonder if we can we find ways to educate others about the system but take the personal out of it so that we are fulfilling our responsibility of being wise counselors to society at large?

I think we can. In Ta-Nehisi Coates’ powerful, recently published book “Between The World And Me,” he honestly and artfully discusses race and race relations. Not simple to do. Yet Coates illuminates the often divisive and uncomfortable topics by writing directly, frankly and without obvious judgment. He writes it like it is.   “Making A Murderer” seems to have become such a cultural phenomenon that it can serve as a starting point for the “like it is” in the criminal justice system. Not like it is always, but certainly how it can be when human nature overwhelms. An example of how our weaknesses as humans can destroy the strength of what might be the best criminal justice system available. And who better to facilitate a discussion on what can we do to make our system be its best than those of us who work within the system every day?

Blog by criminal defense attorney Sonya Pfeiffer, partner at Rudolf Widenhouse www.RudolfWidenhouse.com. Feel free to send feedback to Sonya at spfeiffer@rudolfwidenhouse.com.

 

Protecting Your Rights

As members of the North Carolina Advocates for Justice, we are faithful advocates for our clients and defenders of rights for those journeying through various stressful and difficult periods in life. Here’s what informed my decision to make this my profession, my calling:

Like many, my “aha” moment came at a young age while watching a rerun of the black and white movie, To Kill A Mockingbird. In 1961, it won a Pulitzer Prize, and in 1962, was made into an Academy Award-winning film. Not surprising, it has never gone out of print.  I gave a copy as a gift to one of my own children this past Christmas.

Gregory Peck’s performance as Atticus Finch reminded me of my own Dad in his style of teaching truthfulness and compassion.  Both explained things in a way that helped a child understand the difference between right and wrong.  “There’s been some high talk around town to the effect that I shouldn’t do much about defending this man,” Atticus tells his daughter, Scout, in the 1962 film adaptation. “If I didn’t, I couldn’t hold my head up in town. I couldn’t even tell you or Jem not to do somethin’ again.”[1]  Wow, what a great way to explain the concept of right and wrong to a child!  Example is a grand teacher.

The opportunity to teach my brother and me about standing up for what is right and to not be led by a crowd in the bullying or taunting of any group was on point as the school system in which we were enrolled had just begun desegregation.  Looking back, the lesson was one of not dehumanizing any person, including myself, by being a part of that crowd, and not to dehumanize others by making them less than the humans they are.  Compassion and fairness have stuck with me to this day and I hope to never lose those gifts.

The uniqueness of America is that its laws and Constitution were designed to protect the individual from other individuals, from the state, and from the mob. No other nation or kingdom had ever put the individual above all.

NCAJ members, as Plaintiff’s counsel in civil matters and Defense attorneys in Criminal matters, help people resolve controversies between individuals and corporations or between the government (The State) and its citizens. We protect individuals sometimes against the “collectives”.  Our profession demands our contributions to the protection of our fellow human beings and their rights garnered within the legal framework of our Constitution,  the  Bill of Rights, our State’s Constitution and the Common Law.  As a member of the legal team with Hyler & Lopez, P.A., we have the opportunity to help protect the rights of those accused in civil or criminal actions by defending and protecting the accused by zealous representation and mounting the best defense possible.

Through membership with the North Carolina Advocates for Justice, we touch the lives of North Carolinians through pro bono service, participating in continuing legal education, and by advocating for the rights of workers and families at the legislature.  We stand out in our communities as leaders of civic education and defenders of justice; after all, we are Advocates.

This article is contributed by Susan Sherman Gaddis, a Paralegal IV.  Ms. Gaddis holds undergraduate degrees in Political Science and Philosophy from UNCA and Associates degree in Paralegal Studies/Constitutional Law from Fayetteville Technical Community College, and the pre-law program of Campbell University.  She is employed with the law firm of Hyler & Lopez, P.A., in Asheville, North Carolina.

[1] To Kill A Mockingbird, Harper Lee, 1960.

Are The Roasting Chestnuts Safe to Eat?

As we prepare for the holidays, food is certain to be a central part of our family gatherings. We trust that the food we buy is safe and free of contamination, but that is not always the case. Every year, 48 million people get sick from foodborne illnesses. Of those affected, at least 128,000 are hospitalized and 3,000 will die. These numbers may understate the problem as many cases of foodborne illnesses go unreported.

These statistics are frightening, but what is scarier is that the numbers could be worse if not for trial lawyers. Our government regulators simply do not have the resources to force food corporations to take the necessary measures to protect our food supply. When these companies place profits before safety, the trial lawyers and our civil justice system are essential for the protection of consumers. Taking these food corporations to court has become an important deterrent against the bad acts and practices that create risk of contamination in our food supply.

News reports regarding food contamination are increasing. The recent outbreak of illnesses seemingly related to Chipotle restaurants have dominated the news of late. Most often the source or cause of food contamination is never identified, but we do know some reasons why the number is escalating. Aside from bad corporate practices, another reason for the increased risk of contamination is the advent of new farming strategies. The administration of pharmaceuticals to livestock has exploded. Not only does that use add risk, the waste from these farms filter into the groundwater and crops growing nearby. As such, contamination in leafy greens such as lettuce and spinach is now the second biggest cause of food-related hospitalizations and the fifth most frequent cause of deaths related to foodborne illnesses.

A contamination lawsuit against a food corporation is about much more than compensating the injured consumer. These lawsuits have the opportunity to effectuate change in corporate policy affecting food safety. When food producers and suppliers are held liable for the injuries caused by contamination in their products, these companies have greater incentive to value safety over profits. Sometimes it is these lawsuits that actually uncover the source of the contamination through the discovery conducted. Government regulators simply do not have the time, power or resources to conduct such thorough investigations as can be done through the civil court system. These lawsuits are vital for the protection of consumers.

Written by Jean Sutton Martin of the Law Office of Jean Sutton Martin PLLC.  Attorney Jean Sutton Martin provides focused, personalized legal solutions for people who have been harmed by pharmaceutical drugs and medical devices.

NCAJ Members Assist Eugenics Victims Pro Bono

Lawyers have a professional obligation to donate their services occasionally to legal activities that are rendered pro bono publico – that is a Latin phrase meaning “uncompensated services provided in the public good.”   Several trial lawyers in North Carolina have donated their services to help victims of the state’s eugenics sterilization policy.

From 1933 until approximately 1974, North Carolina pursued a policy of eugenics sterilization.   Generally speaking, any person in the state who was “feeble-minded, mentally diseased, epileptic” or whose “mental, moral or physical improvement” could be furthered by sterilization, or who might produce a child “who would have a tendency to serious physical, mental or nervous disease or deficiency,” would be a proper target of this involuntary sterilization policy.   In 1933, the General Assembly passed P.L. 1933, Sec. 224, which established the “Eugenics Board” to provide a modicum of due process for the targets of the sterilization program.   This public law also established an affirmative duty on the part of each county’s Board of Commissioners, and each county’s Superintendent of Welfare, to go out into their local community and find all of the people under their jurisdiction who “should” be sterilized pursuant to this public policy.  The 1933 Act required these public officials to get it done by filing a petition for sterilization with the Eugenics Board.   The Board would hold a hearing and could order or deny the request for sterilization.  Once ordered, the operation was performed at public expense in the county from which the petition originated.   There were apparently thousands of North Carolinians involuntarily sterilized pursuant to these policies between 1933 and 1974, when the Eugenics Board was finally disbanded.

In 2013, the NC General Assembly did the right thing—it enacted a compensation program “to make restitution for injustices suffered and unreasonable hardships endured by the asexualization or sterilization of individuals at the direction of the State between 1933 and 1974.”  The legislature set aside $10,000,000 to be paid per capita to eligible claimants.   Unfortunately, the legislators were unaware that apparently, county welfare departments had involuntarily sterilized some citizens without going through the mandatory Eugenics Board petition process.    In addition, some sterilization victims were left out of the compensation package due to an arbitrary qualification date established by the legislature.

The Industrial Commission was given the responsibility of reviewing the applications and determining who was a “qualified beneficiary” under the 2013 compensation law.  Anyone who was denied administratively could request a hearing in front of the Commission and appeal an adverse decision to the Full Commission, and then to the appellate division.   Approximately 850 claims were filed with the Commission.

As of November 2015, approximately 250 claims had been determined to be valid, and a first installment of compensation has been paid to those individuals.  However, approximately 19 denied claims remained in litigation, either at the Commission or the Court of Appeals.

The denied claims fell into two categories:   Some individuals could prove that they had been involuntarily sterilized for eugenics reasons at the behest of public officials, such as county “welfare department” or social services case workers, but no documents pertaining to them were found in the Eugenics Board archives held by the State.  The Commission denied these claims because there was “insufficient evidence” to show that the victims had been sterilized by order of the Eugenics Board, which the Commission viewed as an essential element of a claim.   Other denied claimants had clearly been sterilized through the Eugenics Board process and their paperwork survived in the archives, but they did not personally survive to the “living victim” threshold cut-off date established by the 2013 legislation.

In 2013, it came to the attention of Kevin Bunn (then Chair of the Workers’ Compensation section of the NCAJ) that numerous Eugenics claimants needed to litigate their administratively denied claims at the Industrial Commission.   The Workers’ Compensation section members all practiced daily before the Industrial Commission, so Bunn asked his section members to help out.  As a result, members of the section volunteered to represent these claimants pro bono on the denied, disputed claims for compensation.

Lawyers from the NCAJ who handled claims before the Commission included Elizabeth McLaughlin Haddix of Chapel Hill, Leslie Wickham and Valerie Johnson of Durham, Marva McKinnon and Ed Pressly of Statesville, Bob Bollinger of Charlotte and Martza McCarthy of Morehead City.    Elizabeth Haddix of the UNC School of Law’s Center for Civil Rights represented claimants from the very beginning of the claim application process and coordinated the pro bono efforts of the other NCAJ attorneys.   This group of lawyers litigated approximately 18 denied claims all the way through the Industrial Commission and are currently representing 18 claimants on individual appeals pending at the NC Court of Appeals.   On November 18, Elizabeth Haddix and Ed Pressly presented an oral argument to the Court in three “living victim threshold” cases, and on November 30, Bob Bollinger presented an oral argument in a “no documents from the Eugenics Board archives” claim.

The stories of the victims are absolutely compelling—-the November 30 argument involved a 26-year-old mother with no financial resources who was sterilized decades ago under duress applied by a county social worker.  The woman and her two young children were receiving welfare benefits, and the social worker threatened to take away her children if she did not “consent” to a sterilization procedure.   The Industrial Commission found that she was involuntarily sterilized, but that she was not eligible to receive compensation because there was no order from the Eugenics Board.  The question for the Court of Appeals is whether the lack of an order from the Board is dispositive, when the involuntary sterilization could only have been lawful under the 1933 Eugenics Sterilization Act.

These trial lawyers collectively have invested hundreds of hours of uncompensated professional time into this effort to bring justice to each person who was involuntarily sterilized by the State pursuant to its eugenics sterilization public policy.

Blog post author Bob Bollinger practices law at the Bollinger Law Firm, PC.  The Bollinger Law Firm, PC, is based in Charlotte, but takes workers’ compensation cases across North Carolina. Founded in 1999, the firm has a strong reputation as a law firm of advocates for injured and disabled people.