In The Federalist, No. 62, James Madison, wrote:
“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.”
Nearly 230 years later, the list of activities that can result in a criminal conviction in North Carolina has continued to grow rapidly, and it is now far too voluminous and often incoherent, particularly for the average citizen.
The criminal code itself has grown excessively long and complex. In addition, the rules and regulations promulgated by administrative agencies have grown excessively criminalized, and, as a result, a large number of crimes—including drug and motor-vehicle offenses, regulatory crimes, and local ordinances—lie outside the state’s criminal code.
Because there are so many of them, and because they are so obscure, it is impossible for ordinary citizens to know about, let alone understand, all of the laws that govern their everyday activities. Making matters worse, many of the new laws criminalize conduct that is not obviously wrong in any way. As a result, ordinary citizens cannot rely on their knowledge of the law or on intuition to alert them to the fact that they may be committing a crime.
Nevertheless, for many new crimes, and especially for many new regulatory crimes, there is no mens rea requirement, that is, no requirement that, in order to be convicted of the crime, the person being prosecuted must have intentionally done something he or she knew was wrong.
If we want to maintain a free and just society, we must reverse the process of overcriminalization in North Carolina.
- North Carolina has been creating, on average, 34 crimes annually, over half of which are felonies.
- North Carolina’s 765-section criminal code is now 55 percent larger than Virginia’s and 38 percent larger than South Carolina’s code.
- Under numerous “catchall” provisions in the General Statutes, administrative agencies and private licensing boards have criminalized entire sections of the regulatory code, including regulations dealing with public health, agriculture, and the environment.
- Many new crimes, including many new “regulatory” crimes, are strict-liability crimes, which means that criminal intent is not required for conviction. Instead, individuals can be held criminally responsible for unknowingly violating the new laws. This is particularly unfair given the number and obscurity of the new laws and given the extent to which they govern, in minute detail, a wide range of ordinary activity that is not self-evidently wrong in any way.
- Overcriminalization places individuals and small businesses in constant legal jeopardy.
- Overcriminalization wastes scarce law-enforcement resources that could otherwise be devoted to preventing and punishing serious crimes against persons and property.
- Overcriminalization reduces consistency in enforcement and erodes confidence in the rule of law.
- Other states have already started addressing the problem. Tennessee, for example, has created a commission that will make annual recommendations about which crimes can and should be eliminated, and Virginia has not only created such a commission, it has already started eliminating crimes pursuant to the commission’s recommendations.
- Create a bipartisan legislative task force to conduct hearings and establish guidelines for the creation of new criminal offenses. (See, Model Resolution on Regulatory Overcriminalization.)
- Create a commission to review North Carolina’s criminal statutes with the objective of consolidating, clarifying, and optimizing them.
- Add a default mens rea provision to the General Statutes, i.e., a provision that would automatically make “criminal intent” a part of the definition of every crime unless the legislature specifically states otherwise.