Criminal Code Reform

Introduction

In The Federalist No. 62, James Madison warned,

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

More than 230 years later, Madison’s warning has become more relevant than ever in North Carolina. The list of activities that can result in a criminal conviction has been growing rapidly for decades in our state, and without much planning or oversight. Every year, dozens of new crimes are added to the statute books, and dozens of new rules and regulations that contain 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.

The sheer number of criminal laws and regulations, and the fact that their definitions are so haphazardly documented and so inaccessible, make it impossible for ordinary citizens to learn about and understand all the rules that govern their everyday activities and expose them to criminal liability. Moreover, because so many of those laws and regulations criminalize conduct that is not inherently evil and does not harm any identifiable victim, citizens cannot rely on their intuitive notions of right and wrong to alert them to the fact that they may be committing a crime. And yet for many crimes, including most regulatory crimes and many ordinance crimes, no mens rea (mental state) element is specified in the definition. As a result, citizens can be – and often are prosecuted and punished for unintentionally breaking laws they did not even know existed.

This state of affairs, commonly referred to as “overcriminalization,” is patently unjust, but that’s not the only reason it is unacceptable. It discourages entrepreneurship and innovation. It reduces consistency in enforcement. It erodes confidence in the rule of law. Finally, it wastes scarce law-enforcement resources that could otherwise be devoted to preventing and punishing serious crimes against persons and property.

We must take steps to reduce the current level of overcriminalization in North Carolina and ensure that it does not rise to this level again in the future.

Key Facts

• More than 2,700 separate crimes are defined in the North Carolina General Statutes. Only about a thousand are where one would expect to find them: Chapter 14, under the title “Criminal Law.” Definitions of the other crimes — more than 1,700 in all — are scattered across more than 140 chapters of the statutes.
• Making matters worse, many crimes do not appear in the General Statutes at all. For years a variety of “catch-all” statutes made it a crime to violate ordinances promulgated by counties, municipalities, and metropolitan sewerage districts and rules and regulations promulgated by administrative agencies and occupational licensing boards. Despite the reforms discussed below, anyone who wants to be fully informed about what is and is not a crime in North Carolina must find and peruse hundreds of separate, inconsistent local codes.
• 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, encourage mistakes, and raise the cost of adjudication. Moreover, when the mens rea requirement is missing, it exposes citizens to the risk of unjust prosecution and conviction even though they never knowingly or intentionally broke the law.
• Legislation enacted in 2021 addressed some of the problems listed above. Session Law (S.L.) 2021-84 repealed statutory provisions criminalizing the violation of rules promulgated by licensing boards. S.L. 2021-138 repealed provisions automatically criminalizing the violation of local ordinances and provided for criminal penalties only when such penalties are explicitly specified in the ordinance itself. The law also identified types of ordinances for which no criminal penalty may be imposed and created new statutory defenses for ordinance crimes.
• S.L. 2021-138 also created a bipartisan legislative working group to study all of the problems listed above and make recommendations regarding how to achieve a “streamlined, comprehensive, orderly, and principled criminal code.”
• Unfortunately, the legislative working group created by that law has not been meeting and has not made any recommendations.

Recommendations

1. Clean up, streamline, and recodify the criminal code.

• To address current overcriminalization in North Carolina, policymakers should eliminate all crimes that are obsolete, unnecessary, redundant, or unconstitutional; resolve all inconsistencies; and where appropriate, downgrade minor regulatory and municipal offenses from crimes to infractions.
• They should also codify all common-law offenses and defenses, ensuring that the definition of each crime is clear and complete and that it states explicitly what level of mens rea, if any, is required for conviction.
• Finally, they should consolidate the entire body of revised criminal law into a clearly identified, well-organized, and intelligible criminal code that can be easily found within the General Statutes.

2. Create stronger safeguards for victims of overcriminalization.

• Policymakers should pass a default “criminal intent” standard for all crimes created subsequent to recodification and require that strict-liability crimes can be created only by explicit statutory enactment. They should also make “mistake of law” a defense for any crime created subsequent to recodification that is not clearly defined in the General Statutes and explicitly identified as a part of the criminal code.

3. Provide stronger oversight of the criminal code.

• To prevent future overcriminalization in North Carolina, policymakers should create a formal oversight body to review proposed crimes and periodically to audit existing crimes. They should also create a law requiring that any criminal penalty concerning violation of a regulation must be reviewed and approved by the General Assembly.