by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
In the N.C. Senate Judiciary Committee Thursday, Andy Wells (R-42) presented an important and valuable piece of legislation in the form of a proposed committee substitute for House Bill 379. The substitute bill, which is called “An Act to Assist the Criminal Law Recodification Working Group,” includes the following provisions:
All state agencies, boards, and commissions that have the power to define conduct as a crime in the North Carolina Administrative Code shall create a list of all crimes defined by the agency, board, or commission that are in effect or pending implementation. …
[T]he Administrative Office of the Courts (AOC) shall compile a list of North Carolina common law crimes and a list of crimes defined in the North Carolina General Statutes, organized by chapter. AOC shall identify and list any North Carolina General Statute that meets one or more of the following criteria:
(1) The statute is duplicative.
(2) The statute is inconsistent with other statutes, rarely charged, fails to state a mens rea, or contains undefined terms.
(3) The statute appears to be obsolete.
(4) The statute has been held to be unconstitutional by an appellate court. …
Every county, city, town, or metropolitan sewerage district that has enacted an ordinance punishable [as a crime] shall create a list of applicable ordinances with a description of the conduct subject to criminal punishment in each ordinance.
Collecting this information is something the General Assembly should do as a matter of responsible due diligence; however, it has the potential to be much more than that. It could be the first step towards solving what is becoming an increasingly serious problem in North Carolina—a problem known as “overcriminalization.”
At the John Locke Foundation, we’ve been talking about the problem of overcriminalization for years. (See, e.g., here, here, and here.) Here’s how we describe it in the current edition of our Policy Guide:
In North Carolina, the list of activities that can result in a criminal conviction has grown rapidly in recent years, and without much planning or oversight. Every year, dozens of new crimes are added to the statute book, and dozens of new rules and regulations that are subject to criminal penalties are put in place outside the statutory context. The result is a sprawling, incoherent, and unintelligible body of criminal law that places individuals and small businesses in constant legal jeopardy. …
Chapter 14 of the North Carolina General Statutes, which deals specifically with criminal law, now includes over 840 sections defining hundreds of separate crimes. Hundreds of additional crimes are defined here and there throughout more than 140 other chapters of the General Statutes.
Hundreds more crimes exist under various statutory provisions that criminalize the rules and regulations promulgated by administrative agencies, by professional licensing boards, by county and municipal governments, and even by metropolitan sewerage 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.
Many of the crimes now on the books are obsolete, unnecessary, redundant, or unconstitutional, and the definitions are riddled with inconsistencies.
The definitions of many crimes are incomplete, and the mens rea or mental state requirement is among the most commonly missing elements. Incomplete definitions cause uncertainty and raise the cost of adjudication. Moreover, when the mens rea requirement is missing, it exposes citizens who never knowingly or intentionally broke the law to the risk of unjust prosecution and conviction.
In the Policy Guide, we suggest that the ultimate way to solve the problem of overcriminalization, and ensure that it doesn’t recur in the future, is to create an independent recodification commission to perform the following tasks:
Eliminate all crimes that are obsolete, unnecessary, redundant, or unconstitutional; resolve all inconsistencies; and, where appropriate, downgrade minor regulatory offenses from crimes to infractions.
Ensure that the definition of each crime is clear and complete and that it states explicitly what level of mens rea [criminal knowledge or intent] is required for conviction.
Consolidate the entire body of revised criminal law into a single, well organized, easily intelligible chapter of the General Statutes.
Impose suitable limitations on the power administrative boards, agencies, local governments, and other entities to create crimes.
Provide a default mens rea standard for all crimes created subsequent to recodification, and require that strict liability crimes can be created only by explicit statutory enactment.
Make “mistake of law” a defense for any crime created subsequent to recodification that is not clearly defined in the “criminal law” chapter of the General Statutes.
However, completing all these tasks, and incorporating them into the General Statutes is a big undertaking. Before it can begin, the General Assembly and the public need to have a clear understanding of the nature and extent of the overcriminalization problem and of what needs to be done in order to solve it. Ironically, the current sprawling, incoherent, and poorly documented state of North Carolina’s criminal law makes it almost impossible to achieve that understanding.
Thanks to Sen. Wells, that could soon change. If his proposed committee substitute for HB 379 is enacted into law, we will soon know exactly how bad the problem of overcriminalization is in North Carolina, and we will have taken a major step towards its ultimate solution.