by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Last week, both chambers of the N.C. General Assembly unanimously approved House Bill 379: An Act to Assist the Criminal Law Recodification Working Group. If Governor Roy Cooper signs it, the bill will constitute a small, but important, step toward ensuring that North Carolina has a criminal justice system that is effective, efficient, and fair. Its champions, particularly Senator Andy Wells and Representative Dennis Riddell, are to be congratulated on achieving such a high level of bipartisan legislative support for the bill.
As I explained in my previous discussion of H.B. 379, the purpose of the bill is to gather information about North Carolina’s criminal law that is currently unavailable. The bill includes three provisions. One 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 all North Carolina counties, cities, towns, and metropolitan sewerage districts to submit a list of crimes created as well. 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 crimes that are duplicative, inconsistent, rarely charged, incompletely defined, obsolete, or unconstitutional.
Why does the General Assembly need this information? Not to put too fine a point on it, but North Carolina’s criminal law is a mess. Sooner or later, the legislature is going to have to take steps to clean it up and make sure it doesn’t get into such a chaotic state in the future. But it can’t do either until it understands the nature and extent of the problem.
At the John Locke Foundation, we’ve been saying for years that North Carolina should clean up and recodify its criminal laws (see, here, here, here, and here), but you don’t have to take our word for it. Jessica Smith is the W. R. Kenan, Jr. Distinguished Professor of Public Law and Government at the UNC School of Government. For almost 20 years, she has supported the work of North Carolina’s criminal justice professionals through her teaching, advising, and scholarly publications. Her 1,000-page treatise, North Carolina Crimes: A Guidebook on the Elements of Crimes, is purchased by the court system for every judge, magistrate, prosecutor and public defender in the state. Defense lawyers, police officers, police attorneys, legislators, legislative staff, and the media rely on it for its comprehensive and definitive treatment of the topic.
When Professor Smith talks about North Carolina’s criminal law, we would all do well to listen, and that’s particularly true of a briefing paper she published last year titled “Criminal Code Recodification for North Carolina.” Smith begins the paper by observing that, “North Carolina’s lack of a streamlined, comprehensive, orderly, and principled criminal code creates costly inefficiencies in the criminal justice system, opportunities for unfairness, and undermines the effectiveness of the criminal law.” She then discusses many specific problems with the current state of state of the law, including a “diffuse and scattershot” approach to proscribing crimes, the failure to specify and define critical terms and concepts, redundant and overlapping provisions, the retention of outdated and unconstitutional crimes, and the proliferation of crimes that have never been charged.
Summarizing how this state of affairs affects the criminal justice system she says:
The current code creates unnecessary complexity for law enforcement officers, magistrates, and prosecutors, who must determine, among other things, which crimes to charge and how to adhere to a myriad of technical rules for charging language. It also leads to complexity for judges who preside over trials, prosecutors who litigate the State’s case, defense lawyers who defend their clients, courtroom staff who prepare court records, and court administrators who create, manage, and adapt forms and computer systems to accommodate all of these offenses. Unnecessary complexity also is created for citizens who serve as jurors and must apply the law in determining guilt or innocence. Additionally, ambiguities, loopholes and inconsistencies in the law drive up the cost of criminal prosecutions by creating opportunities for litigation. Such characteristics also create opportunities for both wrongful convictions and for guilty persons to escape criminal liability. … Delegation of authority to create criminal offenses to administrative bodies and local governments greatly expands the scope of the criminal law. This development, combined with a proliferation of offenses within and outside of the criminal code, makes it impossible for ordinary people—and perhaps even experts—to know what has been made criminal and to behave accordingly. The creation of multiple overlapping offenses creates confusion and can lead to injustice. Combined, these characteristics of North Carolina’s existing law create inefficiency and costs. And more fundamentally they may undermine the integrity of the law and trust and confidence in the state’s criminal justice system, the moral authority of the law, and the law’s ability to serve as deterrent to criminal conduct.
The solution, according to Professor Smith, is recodification. She says that the N.C. General Assembly should create a recodification commission and assign it the task of rewriting the state’s criminal laws to produce, “a streamlined, comprehensive, orderly, and principled code.” The commission’s goals, she says, should be to:
The result will be a streamlined, comprehensive, orderly, and principled code that will “create cost efficiencies and cost savings and promote fairness in and respect for the state’s criminal justice system.”
At the John Locke Foundation, we agree, and so, it seems, do many members of the General Assembly. Let’s hope the governor also agrees and signs H.B. 379, which is now on his desk. Collecting essential information about the existing state of North Carolina’s criminal laws will help ensure that our criminal justice system is as effective, efficient, and fair as it should be.