by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Last night the N.C. Senate passed an small but important piece of legislation. House Bill 379, which was presented as a proposed committee substitute by Andy Wells (R-42), includes three provisions. One of them requires North Carolina state agencies, boards, and commissions to provide the General Assembly with a list of all the crimes they have created. Another requires North Carolina counties, cities, towns, and metropolitan sewerage districts to do the same thing. And a third provision asks the North Carolina Administrative Office of the Courts to compile a list of common law crimes and crimes defined in the North Carolina General Statutes, and identify which of those crimes are duplicative, inconsistent, rarely charged, incompletely defined, obsolete, or unconstitutional.
Collecting this information could be the first step towards solving an increasingly serious problem that we at the John Locke Foundation have been talking about for years—over criminalization. Here’s how we describe the problem 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 Guide, we suggest that the ultimate way to solve the problem of overcriminalization, and ensure that it doesn’t recur in the future, to replace North Carolina’s sprawling, incoherent, and poorly documented criminal law with a new, streamlined, comprehensive, orderly, and principled criminal code that would:
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.
Recodifying North Carolina’s criminal law in this way 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. Thanks to Sen. Wells and the N.C. Senate, that information may soon be available. If the House follows the Senate’s lead and passes HB 379 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.