by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Jon Guze submits the following:
In recent years, North Carolina’s criminal code has undergone a period of rapid, unplanned, and uncontrolled growth. Chapter 14 of the North Carolina General Statutes, which deals specifically with “Criminal Law,” now includes over 840 sections defining hundreds of separate criminal offenses, including many that are redundant, inconsistent, unconstitutional, or just plain nuts. Under Section 14?159.22, “Sale of Speleothems,” for example, it is a crime to sell or offer for sale stalagmites, stalactites, helectites, anthodites, gypsum flowers, needles, angel’s hair, soda straws, draperies, bacon, cave pearls, popcorn (coral), rimstone dams, columns, palettes, and flowstone or any other “natural mineral formation or deposit occurring in a cave.”
The growing size and complexity of Chapter 14 is a problem in itself, but, from the point of view of a citizen who wants to avoid breaking the law, it’s by no means the only problem. Hundreds of additional crimes have been added here and there throughout more than 140 other chapters of the General Statutes. And, making matters worse, numerous “catchall” provisions have been added that criminalize the rules and regulations promulgated by various administrative agencies, by professional licensing boards, by county and municipal governments, and even by metropolitan sewer districts. These criminalized rules and regulations do not appear in the General Statutes at all. Instead, a citizen who wants to learn about them must comb through hundreds of pages of the N.C. Administrative Code and other compilations.
The result is patently unjust. Because there are so many of them and because they have been documented in such a haphazard fashion, it is impossible for ordinary citizens to learn about and understand all the criminal laws and criminalized regulations that govern their everyday activities. Moreover, because so many of those laws and regulations criminalize conduct that is not inherently evil and does not cause harm to any identifiable victim, ordinary citizens cannot rely on their intuitive notions of right and wrong to alert them to the fact that they may be committing a crime.
Rep. Riddell has introduced a bill that responds to the problems identified above by creating a “criminal code recodification commission” along the lines recommended by Professor Jessica Smith of the UNC School of Government. The bill states that, “In conducting its work … the Commission shall do all of the following”:
(1) Include necessary provisions not contained in the current code, such as mental states, defenses, and definitions of offenses and key terminology.
(2) Eliminate unnecessary, inconsistent, or unlawful provisions in the current code.
(3) Revise existing language and structure to make the law easier to understand and apply.
(4) Ensure that criminal offenses and legal rules are cohesive and relate to one another in a consistent and rational manner.
(5) Incorporate within the proposed new code all major criminal offenses contained in existing law.
(6) Make recommendations regarding whether any existing offenses should be reclassified as infractions punishable only by a fine.
(7) Make recommendations regarding whether any limitations should be placed on the ability of administrative boards, agencies, local governments, or other entities to create crimes.
(8) Seek to preserve the North Carolina General Assembly’s substantive policy judgments as reflected in the existing code and legal principles established in the case law.
(9) Address any other matter deemed necessary to carry out the work of the Commission.
Three of these provisions are particularly welcome. Section (1) calls for mental states to be defined for each crime, thereby addressing the fact that for many of the obscure, newly created crimes no mental state element is required for prosecution. The lack of a mental state requirement means, for example, that a person could be found guilty of selling a speleothem even if he or she had no knowledge of what it was or where it came from. Sections (6) and (7) address the catch-all provisions that criminalize the rules and regulations promulgated by agencies and licensing boards. Does anyone really think it should be a crime for a dentist to run an ad that doesn’t specify whether he or she is a general dentist or a specialist?
This is an auspicious beginning to a much-needed reform. Recodification as called for in this bill would not only go a long way toward protecting North Carolinians from unjust prosecution; it would establish North Carolina as the clear leader in criminal justice reform and make us an example for the rest of the country to follow.