Sentencing Reform Divides Charlotte DA Race

In November 2019, Spencer Merriweather, the district attorney for Mecklenburg County, North Carolina, issued a news release heralding the conviction of a 54-year old man for “habitual larceny.” The release described how the DA’s “habitual felon” unit had scored a six to nine year prison sentence after a jury found the man guilty of trying to steal three pairs of headphones from a local Target. While such low-level theft is usually punishable by up to 120 days behind bars, the state’s habitual larceny law allowed Merriweather’s office to seek steeper punishment because the defendant, who was Black, had a long record, including other misdemeanor thefts stretching back to the 1980s. 

Merriweather, a Democrat and the county’s first Black DA, has issued numerous news releases on his website touting habitual offense cases since taking office in November 2017. On May 17, he will face criminal defense lawyer Tim Emry, who takes issue with the incumbent’s approach to sentencing, in the Democratic primary for DA of Mecklenburg County, which is home to the city of Charlotte. Emry has vowed to never bring habitual offense charges, saying such sentencing enhancements balloon prisons and  exacerbate racial disparities in the criminal legal system. “They grow overall numbers by keeping people in prison for too long,” Emry told Bolts.

Emry has been an outspoken critic of Merriweather’s use of habitual offense laws, having represented what he estimates to be 300 people facing such charges over his 20 year career. On the campaign trail, Emry tells a story about a man who broke into his brother’s home and stole a television to sell for money to buy drugs. Prosecutors who predated Merriweather’s tenure sought to convict him as a habitual felon, and he was eventually sentenced to 10 years in prison.

“My attitude is I don’t care who you are or what you’ve done, no one should do 10 years for stealing your television,” Emry told Bolts. “Let’s look at individual harms, let’s look at individual crimes.”

During a virtual debate last month, both the incumbent and challenger positioned themselves as reformers. Merriweather spoke of “continuing to move towards transforming our justice system to one that operates more effectively and more fairly,” while Emry declared, “We need systematic change to remedy this diseased system.” Underneath this shared language, though, the two candidates are split on a range of major issues. 

Emry has been part of Decarcerate Mecklenburg, an advocacy group that has called on public officials like the DA to shrink the county’s troubled jail during the pandemic. He has also criticized Merriweather for his handling of police shootings cases that have rocked the county. At a recent debate, they also disageed on the death penalty, with Emry pledging to never seek it and Merriweather saying he would keep the option open. But it’s their approaches to sentencing and the state’s habitual offender statutes that are setting them apart most starkly.

Before it became a dividing line in this year’s DA race, Mecklenburg County’s use of habitual charging laws has long been the subject of local debate. In 2009, the Charlotte Observer published an analysis showing that reforming the state’s habitual-felon law could save the state nearly $190 million over 5 years in reduced prison costs. The authors credited Mecklenburg County for sending far fewer people to prison on habitual-felon charges than a number of other large jurisdictions around the state. After the story ran, then-DA Peter Gilchrist, a Democrat, wrote a letter to the paper explaining that he had established a new team of four prosecutors to review every case in which someone qualified for habitual-felon charges. “The new team’s primary goal is to increase consistency in the application of the habitual felon law,” Gilchrist wrote. “This office has tried to apply the harsher penalties of that statute only when the defendant is a repeat offender who has committed crimes that impact others in the community, not addicts whose only offenses have been possession of drugs.”

Two years later, Gilchrist’s successor, Republican Andrew Murray, rallied behind aggressive prosecutions of people accused of repeated crimes. At a press conference marking his first 100 days in office, Murray said that he had won 137 habitual sentences. Gilchrist’s office had 78 sentences in that same time period, according to the Observer. “Our resolve is strong,” said Murray, who was years later nominated for a U.S. attorney position by then-President Donald Trump. 

As North Carolina’s prison population grew, legislators in 2011 scaled back sentencing under habitual laws with the passage of the Justice Reinvestment Act. The changes meant that people charged habitually would receive lesser sentences. “The idea generally, was to try to reduce prison populations without compromising community safety and to reinvest the savings,” said Jeffrey Welty, professor of public law and government at the University of North Carolina school of government. 

Merriweather, who last year vowed to stop prosecuting most drug possession cases, said that the majority of prosecutions in the habitual felon unit are for violent crimes. “It’s not a situation where we’re seeking enhanced sentences for nickel and dime things,” he told Bolts. 

The vast majority of habitual charges touted on the DA’s website since 2019 involved Black people—85 percent of nearly 100 defendants named press releases about habitual felony unit cases, according to an analysis by Bolts, compared to an overall county population that is 33 percent Black. Merriweather said those press releases aren’t representative of the overall demographics of people facing habitual felony charges; Merriweather also said his office doesn’t track those details.

“We usually try to highlight those folks who have been some of the worst, either repeat or violent offenders in our community,” Merriweather told Bolts. “We work really hard within our office to make sure that those disparities aren’t ones that are created by this office.”

In 2020, a task force made up of judges, law enforcement, public officials, and advocates formed to develop strategies for racial equity in North Carolina’s criminal justice system released a report hailing Merriweather’s office’s approach to habitual cases. The report said that district attorneys across the state should make habitual charging decisions through working groups similar to the process in Mecklenburg County. 

Merriweather says his office currently seeks habitual status indictments for everyone who qualifies. After indictment, prosecutors then discuss whose sentences they actually want to enhance or consider for plea agreements, looking over their case files, talking with alleged victims, and considering mitigating factors provided by defense lawyers. The vast majority of cases in the habitual felon unit end in plea deals that avoid a habitual felony conviction, yet often still result in long prison sentences; Merriweather says that 14 percent of defendants handled by his habitual felony unit are eventually convicted under habitual felony laws and receive enhanced sentencing. 

Merriweather said his office’s screening process has led to at least a 20 percent decrease in habitual sentences each year he’s been in office. “I think that speaks to the thoughtfulness we bring to it,” he said. 

But Emry thinks this is not sufficient. If elected, he says he will disband the office’s habitual felony unit and never seek to indict someone with habitual felony charges.

Even if prosecutors say they apply them thoughtfully, Kristie Puckett-Williams, deputy director for engagement and mobilization at the ACLU of North Carolina, lives under the cloud of  habitual sentencing laws. Puckett-Williams says she was convicted of three felonies stemming from trauma-induced drug use when she was younger. Even though those days are behind her, another conviction, for even a minor crime, could mean a long prison sentence. She says habitual offender laws are part of a larger system that puts immense pressure on defendants to plead guilty to avoid the possibility of steeper punishment at trial. 

“I would say the entire pretrial system itself is something that puts pressure on people to plead guilty,” Puckett-Williams told Bolts. “The pretrial system, coupled with habitual offender laws, puts an ordinate amount of pressure on mostly Black and poor people to take pleas so that they can move through the system more efficiently.”