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| Brandon Garrett |
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| Karima Modjadidi |
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| William Crozier |
Although these large numbers may suggest widespread lawlessness such that people choose not to pay or appear, we believe a more troubling cause may be at play. Many of these people may simply be unaware their license is imperiled. The results raise questions about the ways that people are punished for failure to respond to similar notices across the country.
In 44 states, driver's licenses are suspended for such nondriving reasons. Increasingly, litigation, legislation and policy efforts have focused on changing these harsh rules. In a study earlier this year, we showed how those suspensions disparately affect people based on race and poverty.[1]
In a followup to that work, we wanted to hear from people about how suspensions have impacted their lives.[2] After all, as the U.S. Supreme Court put it in Wooley v. Maynard, driving is "a virtual necessity for most Americans."
When the North Carolina Department of Motor Vehicles sends out notices telling people that their license is suspended, they do so by mail to the address on a person's license. The notices read, for example:
We surveyed a randomly selected 300 people in Wake County, N.C, who had their licenses suspended in the past two years. In summer 2019 we sent these surveys by mail and found something unexpected: The addresses on file for these people were extremely inaccurate. Over one-third had these mail surveys returned.WE REGRET TO INFORM YOU THAT EFFECTIVE [time and date], YOUR NC DRIVING PRIVILEGE IS SCHEDULED FOR AN INDEFINITE SUSPENSION IN ACCORDANCE WITH GENERAL STATUTE 20-24.1.
Specifically, out of the 107 returned envelopes, 32 were returned because of an insufficient address, 22 were not deliverable as addressed, 15 were "attempted to forward" but forwarded address was not known, 11 were unclaimed, 8 were listed as having no such street or number, 5 did not have a mail receptacle and 5 were returned because the time to forward to a new address had expired.
Our returned mailings suggest that large numbers of people, numbering perhaps in the hundreds of thousands, never receive actual notice of either their court date or the drastic consequence for nonappearance. Indeed, only eight people responded to the survey.
Many of the other 185 people may have also had undocumented mail delivery problems. And some of the few people who did respond to the survey stated that they did not know their license was suspended. They may have no idea the state suspended their license, and as a result, may suffer severe consequences if they are later stopped for driving with a revoked license. Indeed, about one-quarter of suspended drivers face a charge for driving with a revoked license in North Carolina.
This raises due process questions regarding the state taking action that infringes upon liberty and property without giving people adequate notice. Last year, in the U.S. District Court for the Middle District of North Carolina, the American Civil Liberties Union of North Carolina, the Southern Poverty Law Center, the Southern Coalition for Social Justice and other groups brought a due process challenge to the North Carolina law that permits a license to be suspended for nonpayment of a traffic fine, highlighting the problem.[3]
The judge "recognize[d] the hardships often attendant to the loss of a driver's license." However, the court emphasized that the state provided an adequate process for people to show that they were unable to pay those fines and did not willfully fail to do so. The judge found "this crucial opportunity for a hearing" decisive in finding no due process violation.
Yet a person can request a hearing only after receiving notice of a revocation. The judge discussed at length the typical notice sent to individuals in North Carolina when a license is suspended, and whether its text was sufficiently clear. The judge never considered that many individuals may not receive such a notice in the mail.
The North Carolina DMV must receive untold thousands of returned letters, if we received over a hundred in our small mailing. That means the state is itself on notice that it failed to provide notice. As Chief Justice John Roberts wrote in Jones v. Flowers, a ruling regarding the notice requirement of the due process clause, where a person's home was foreclosed without actual notice:
While our survey results are from just one county, they suggest that the assumption of the judge in the North Carolina litigation — that individuals have a meaningful opportunity to be heard at a post-revocation hearing — may be misplaced. To be sure, individuals have a statutory obligation to update their address with the DMV within 60 days of a change in address. Yet people may have no idea they could lose their license or be charged with a crime for failing to do so.We do not think that a person who actually desired to inform a real property owner of an impending tax sale of a house he owns would do nothing when a certified letter sent to the owner is returned unclaimed.
Low-income individuals disparately affected by driver's license suspensions may also be more likely to change addresses. Indeed, court debt may contribute to evictions, making their mailing addresses less stable.
At minimum, states should reconsider imposing serious consequences for driving with a revoked license when a person has not received notice that the license was suspended. More broadly, we need better ways to ensure people actually know about important court dates and consequences.
North Carolina has a new text-based notification system, launched in fall 2018, but it sounds as if very few people are currently using it. Given advances in communication technology, we can surely rely on a better system than a snail mailed letter. We should not be depriving millions of people of their rights using mass mailings that are returned as undeliverable.
Unlike doctors or the cable company, courts do not let people reschedule appointments. Instead, they issue warrants, arrest and jail people, impose large fines or remove driver's licenses. Rather than punish vast numbers of people for failure to respond to mail, we should rethink these automatic and inaccurate systems.
Brandon L. Garrett is the L. Neil Williams Professor of Law at Duke University School of Law and the director of the Duke Center for Science and Justice. He is the author, most recently, of "End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice."
William Crozier and Karima Modjadidi are post-doctoral fellows at Duke Law and at the Duke Center for Science and Justice.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3355599.
[2] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3489255.
[3] https://www.journalnow.com/news/local/federal-judge-rejects-temporary-block-of-law-that-allows-suspension/article_3ac2c45c-2731-5a13-b34a-bc06420da889.html.