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.” As we celebrate the 230th anniversary of the publication of that essay in 2018, Madison’s warning is as relevant as ever.
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.
The sheer number of criminal laws and criminalized regulations and the haphazard way they are documented make it impossible for ordinary citizens to learn about and understand all the rules that govern their everyday activities and subject them to criminal liability. Moreover, because so many of those laws and regulations criminalize conduct that is not inherently evil and does not cause harm to any identifiable victim, ordinary citizens cannot rely on their intuitive notions of right and wrong to alert them to the fact that they may be committing a crime.
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 an appropriate level of knowledge or intent protects innocent people, i.e., people who did not intentionally do anything they knew to be wrong, from unjust prosecution and conviction. The absence of mens rea puts such people at risk.
This state of affairs, which is commonly referred to as “overcriminalization,” is patently unjust, but that’s not the only reason it is unacceptable. It discourages entrepreneurship and innovation; it reduces consistency in enforcement and erodes confidence in the rule of law; and it wastes scarce law-enforcement resources that could otherwise be devoted to preventing and punishing serious crimes against persons and property. 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.
- The definitions of more than 800 separate crimes appear in chapter 14 of the North Carolina General Statutes, which deals specifically with criminal law.
- The definitions of more than 1,600 additional crimes are sprinkled here and there throughout more than 140 other chapters of the General Statutes.
- Hundreds more crimes have been created 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 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 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 2018, the N.C. General Assembly voted unanimously to approve Session Law 2018-69. The legislation includes three provisions. One instructs 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 instructs all North Carolina counties, cities, towns, and metropolitan sewage districts to submit a list of crimes by the same date. And a third provision instructs 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 by February 1, 2019.
- The information collected under S.L. 2018-09 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 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, 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:
- 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.