As I noted in a previous research brief, COVID-19 presents many difficult challenges for North Carolina’s criminal justice system. How can we prevent the disease from running rampant in our jails and prisons? How can we keep the law enforcement system operating effectively without putting police officers, court officials, and criminal suspects at risk?

Many concerned citizens have responded to those challenges by recommending the early release of prisoners who don’t constitute a danger to the public and a moratorium on the arrest and detention of criminal suspects who meet the same criterion. In the research brief cited above, I explained why I think that approach is, at best, an incomplete solution:

[O]nce all the relevant factors and stakeholders are taken into consideration, I think it is unlikely that the early release of prisoners … will result in a net reduction of risks.  But that’s not my primary objection. … I worry that preparing and implementing early release plans [is]a distraction from what should be the real focus of attention, namely, figuring out how to keep COVID-19 out of jails and prisons and how to keep it from spreading if and when it gets in.

While I stand by that appraisal, I nevertheless want to acknowledge that these concerned citizens have a point. COVID-19 or no COVID-19, we need to be selective about who gets arrested, detained, and imprisoned. Arresting and detaining people who are suspected of committing minor victimless crimes, and imprisoning people who are convicted of committing such crimes, will often waste valuable law enforcement resources and impose unnecessary suffering, not just on those who are arrested, detained, and imprisoned, but on their families and communities as well. And, in this time of COVID-19, arresting, detaining, and imprisoning such people needlessly exposes them and everyone who deals with them to the risk of infection.

That is why, as we emerge from the current state of emergency, it will be important to redouble our commitment to solving the problem of overcriminalization in North Carolina. Currently, North Carolina is burdened with a sprawling, incoherent, and inaccessible body of criminal law that criminalizes a great deal of conduct that is not inherently wrong and does not harm identifiable victims. Such a system doesn’t just place innocent people at risk and waste scarce law-enforcement resources; it encourages mistakes, abuse, and litigation. And, as noted, when we are faced with a medical emergency like the one we face at present, it puts innocent people at risk and distracts reformers from the

To solve the problem of overcriminalization, the John Locke Foundation recommends subjecting the entire body of criminal law to a comprehensive process of review, revision, and recodification. The goal of this process should be to eliminate all crimes that are obsolete, unnecessary, redundant, or unconstitutional; resolve all inconsistencies; downgrade minor regulatory and ordinance offenses from crimes to infractions; ensure that the definition of each crime is clear and complete and states explicitly what level of criminal knowledge or intent is required for conviction; and consolidate the revised body of criminal law into an accessible, coherent, and easily understood criminal code that only criminalizes conduct that is inherently wrong or that harms identifiable victims

A streamlined, principled criminal code will help ensure that the next time North Carolina is faced with a statewide medical emergency, reformers won’t be distracted by a humane desire to rescue people who shouldn’t be involved in the criminal justice system in the first place. Instead, they’ll be able to concentrate on protecting the health of the people who, of necessity, must be involved in that system: law enforcement officers, court officials, the staff at our jails and prisons, and those who are suspected of having committed or who have been convicted of having committed serious crimes against persons and property.