Comments Regarding the General Statutes Commission’s Responsibilities Under Session Law 2019-198 (Senate Bill 584)

April 3, 2020

Thank you for being so diligent about fulfilling your responsibilities under Session Law 2019-198 and for the interest you’ve taken in the overall topic of criminal law reform. And thank you for giving me this opportunity to comment on behalf of the John Locke Foundation.

I want to begin by reminding everyone that the task assigned to the Commission by Session Law 2019-198 is very specific. Section 6 requires you to study the crime reports submitted by local governments and regulatory agencies and then respond to a single question, namely, “whether any conduct currently criminalized … by an ordinance of a county, city, town, or metropolitan sewerage district or … [by rules promulgated] by an agency, board, or commission, should have criminal penalties provided by a generally applicable state law.”

At your March meeting, the local government representatives who testified spent most of their time discussing matters that aren’t directly relevant to the question posed by S.L. 2019-198. They wanted you to know that there are absolutely no problems with the status quo regarding local authorities’ power to create and enforce ordinances with criminal penalties. Now, of course, nothing in this world is perfect, and there definitely are problems with the status quo regarding ordinance crimes, as I’m sure some of today’s other speakers will attest.

However, in my comments, I’d like to stick to S.L. 2019-198 and the question it asks this commission to answer. Although it wasn’t their primary focus, the local authorities’ representative who addressed you last week did claim to know the answer that question, at least as far as ordinance crimes are concerned. According to them, no conduct currently criminalized … by an ordinance of a county, city, town, or metropolitan sewerage district should have criminal penalties provided by a generally applicable state law. But I’d like to respectfully suggest that those local government representatives can’t really know that for sure. At this point, no one can.

As Floyd Lewis explained at your February meeting, almost all of the local authorities and administrative agencies that were required to submit reports have done so. The result is a lot of reports—approximately 700 if I’m not mistaken. However, the sheer number of reports isn’t the main problem. As Mr. Lewis also explained, the reports vary widely in format, and—in many instances—in the reliability and helpfulness of the information they provide.

For the record, the John Locke Foundation has also reviewed those reports, and we concur with Mr. Lewis’s analysis. Given the current state of the crime reports, we don’t think it’s feasible for the Commission to make a final determination about whether any existing ordinance or regulatory crimes should be replaced with new statutory crimes—certainly not by May 1, and probably not at all unless something can be done to improve the quality of the reports. As was discussed at the February meeting, the task would be facilitated if the relevant local authorities, agencies, and boards were required to resubmit their crime lists in a well-designed, pre-determined format, but, even with clear, consistent, and complete crime lists in hand, the task would require many hours of analysis by legal and policy experts.

Which raises an important question. If the members of this commission, ably assisted as they are by Mr. Lewis and the other members of staff, cannot answer a simple question about municipal and administrative crimes, where does that leave the ordinary citizen? North Carolina’s local authorities and administrative agencies took two years to compile and submit their crime lists. Your staff, and the staff at the John Locke Foundation, have spent several months reviewing and analyzing those lists. And yet we’re still very far from having anything like a usable compilation of ordinance and regulatory crimes.

What’s more, the situation is just as bad when it comes to statutory crimes. Unlike ordinance crimes, statutory crimes are all compiled in one place—in the 27 volumes of the North Carolina General Statutes—but that doesn’t mean ordinary citizens have fair notice of what is and is not a criminal offense. Of the 2,500 separate crimes defined by statute in North Carolina, only about 900 appear where one would expect to find them, in Chapter 14 under the title “Criminal Law.” The other 1,600 or so are sprinkled here and there throughout 141 different chapters of the statute book.

Moreover, the haphazard way our criminal statutes are compiled isn’t the only problem. The law that originally instructed local governments and regulatory agencies to submit crime lists, S.L. 2018-69, also instructed the Administrative Office of the Courts to compile a list of statutory crimes that are obsolete, duplicative, or unconstitutional, or for which the definition fails to state a mens rea, contains undefined terms, or is inconsistent with the definition of other crimes. The AOC was no more successful at its task than you have been at yours.

In short, the disordered state of ordinance crimes in North Carolina is just one part of a larger problem, which is that years of rapid, ill-considered, and poorly executed expansion have saddled us with a sprawling, incoherent, and inaccessible body of criminal law. Jessica Smith wasn’t able to speak today due to a prior commitment, which is a shame because Jessie has a proposed a solution to that problem. For those of you who don’t know, Jessie is the W. R. Kenan Jr. Distinguished Professor of Public Law and Government at the University of North Carolina School of Government, and she is, unquestionably, the leading expert on the criminal law in North Carolina. In 2017, she released a report explaining how the multi-faceted problem described above could be solved through a systematic process of recodification. Her report was well-received by legislators from both parties; so much so that, near the end of the 2017 session, legislation was introduced to create a recodification commission along the lines she had recommended. The bill didn’t come to a vote, but it came surprisingly close, despite being a new initiative introduced late in the session.

Where does all this leave the General Statutes Commission? In my view, the most constructive way forward would be for the Commission to recommend that the General Assembly relieve the Commission of its responsibility for determining whether any conduct currently criminalized by ordinance or regulation should be replaced by a generally applicable state law, and, instead, assign that task to a group of experts with the time and resources to carry it out properly. Given everything I’ve said up to now, you won’t be surprised to learn that I think the ideal group to undertake that task would be a criminal law recodification commission like the one recommended by Professor Smith.

The two primary sponsors of the bill that became S.L. 2019-198, Senator Andy Little and Representative Dennis Riddell, have both been in contact with the Commission regarding its responsibilities under the act. Based on what they’ve said up to this point, I suspect they’d support such a recommendation.

Thank you.


Editor’s Note: For more information, see our April 3, 2020 policy report “Criminal Law Reform In North Carolina” by Mike Schietzelt.