December 1 is approaching, which means that many of the changes enacted by the General Assembly this session will be taking effect soon. Among the pending changes are those enacted by Iryna’s law (H 307), which I covered in greater detail in an earlier blog post. This follow-up post focuses on the new category of “violent offenses.”
Violent offenses are defined in new subsection G.S. 15A-531(9) as including any of the following:
- Any Class A through G felony that includes assault, the use of physical force against a person, or the threat of physical force against a person, as an essential element of the offense.
- Any felony offense requiring registration as a sex offender, whether or not the person is currently required to register.
- An offense under G.S. 14-17, and any other offense listed in G.S. 15A-533(b).
- An offense under G.S. 14‑18.4, 14-34.1, 14-51, 14-54(a1), 14-202.1, 14-277.3A, or 14-415.1, or an offense under G.S. 90-95(h)(4c) that involves fentanyl.
- Attempts to commit any of the listed offenses.
The new classification of violent offenses does not affect the offenses that qualify for violent habitual felon status under G.S. 14-7.7. The status offense sets forth its own definition of “violent felony,” and that statute has not been amended to reflect or otherwise reference “violent offenses” as created by H 307. The category of “violent offenses” created by H 307 applies only to conditions of pretrial release.
List of qualifying offenses
It may be useful for judicial officials setting conditions of release to have handy a list of qualifying offenses. I have created such a list, which is available here. The document does not list all North Carolina criminal offenses. Rather, it includes only those that fall within the new violent offense category. It also notes the applicable subdivision(s) for each offense, though it is not necessary for judicial officials to identify the appropriate subdivision when applying the relevant laws.
Offenses in subdivision a.
There may be some question as to what offenses properly fall within the subdivision of offenses that include assault or the use or threat of force against a person as an essential element of the offense. Particularly, it is unclear whether the legislature intended that subcategory to include only offenses that are committed intentionally, or whether offenses that can be committed recklessly or negligently may qualify. One case worth considering in connection with this issue is Borden v. United States, 593 U.S. 420 (2021), in which the U.S. Supreme Court reasoned that the phrase “against another,” when modifying a volitional action like the “use of force,” necessarily requires that the perpetrator direct the force at another individual, thus suggesting a higher degree of intent than recklessness and negligence. Applying this reasoning, “violent offenses” would appear to exclude offenses where the defendant “unintentionally causes” the harm, like the death and serious injury by vehicle crimes in G.S. 20-141.4.
Additionally, offenses with assault or the use of force as alternative elements are excluded. For example, although G.S. 14‑50.19(a) (intimidation to deter from gang withdrawal) can be committed by the threat of injury to a person, it can also be committed by damage to property of another, and thus the threat of force against a person is not an essential element.
Defendants charged with violent offenses are subject to specific conditions of release and may be subject to or excluded from other proceedings, as described in my earlier post and in this AOC memo. If you have any questions about the inclusion of offenses on this list, or the exclusion of offenses from the list, please let me know.
Today’s post is the last for the week since the School of Government is closed Thursday and Friday for the holiday. Happy Thanksgiving to you all!