North Carolina’s criminal code is hardly a code at all. Crimes are scattered across more than 140 chapters of the General Statutes, thousands of pages of the administrative code, and more than 650 county and municipal codes of ordinances. And these crimes all sit atop the foundation of the common law. There is no publicly available database where the average citizen can find all the crimes a person or a business can commit in our state. As James Madison wrote in The Federalist No. 62 (1788), “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.”
This state of affairs, commonly referred to as “overcriminalization,” reduces consistency in enforcement, erodes confidence in the rule of law, and wastes scarce law enforcement resources that could otherwise be devoted to preventing and punishing serious crimes against persons and property.
All of this makes it particularly unfair that the definitions of many crimes, including most regulatory crimes, lack the traditional mens rea (“mental state”) requirement. Requiring the prosecution to prove that the accused has an appropriate level of knowledge of the law or intent to break it protects innocent people from unjust prosecution and conviction. The absence of mens rea puts such people at risk.
This is unacceptable to even the broadest conception of notice in the criminal justice system. It is an ancient principle of our legal system that ignorance of the law is no excuse. But this places a corollary duty on lawmakers to ensure our laws are clear, concise, and consistent.
North Carolina’s criminal laws are a minefield. And that minefield has a chilling effect on private enterprise and speech. North Carolina criminal laws have ensnared hot dog stand owners, bloggers, and even nonprofits sheltering animals during a hurricane. We must take steps to reduce the current level of overcriminalization in North Carolina and ensure that overcriminalization does not rise to this level again in the future.
- Definitions of more than 800 separate crimes appear in Chapter 14 of the North Carolina General Statutes, which deals specifically with criminal law. Definitions of more than 1,600 additional crimes can be found throughout more than 140 other chapters of the General Statutes.
- Hundreds of crimes have been created under various statutory provisions that criminalize the rules and regulations promulgated by administrative agencies, professional licensing boards, county and municipal governments, and even metropolitan sewer 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 thousands of pages of the North Carolina 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 2018, the North Carolina General Assembly voted unanimously to approve Session Law 2018-69. The legislation included three provisions. One instructed North Carolina state agencies, boards, and commissions to provide the General Assembly with a list of all the crimes they have created by December 1, 2018. Another instructed all North Carolina counties, cities, towns, and metropolitan sewage districts to submit a list of crimes by the same date. And a third provision instructed 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 to identify crimes that are duplicative, inconsistent, rarely charged, incompletely defined, obsolete, or unconstitutional by February 1, 2019.
- Information collected under Session Law 2019-198 will help North Carolina understand and solve its overcriminalization problem.
- To solve the problem of overcriminalization today, the General Assembly 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.
- Properly codify all common law offenses and defenses.
- Ensure 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.
- Consolidate the entire body of revised criminal law into a single, well-organized, easily intelligible chapter of the General Statutes.
- To ensure that overcriminalization doesn’t recur in the future, the General Assembly should:
- Create a formal oversight body to review proposed crimes and periodically audit existing crimes.
- Eliminate or impose suitable limitations on the power that administrative boards, agencies, local governments, and other entities have to create crimes.
- Provide 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.
- 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.