Press Release

North Carolina should restore centuries-old protection from wrongful prosecution

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RALEIGH — North Carolina should ensure innocent people are not charged, prosecuted, and convicted for conduct they could not reasonably be expected to know is wrong. That’s the key conclusion in a new John Locke Foundation Spotlight report.

Lawmakers can address the issue by reviewing, revising, and “recodifying” the entire body of North Carolina law. That’s one of the report’s three recommendations.

The report arrives as JLF and the Texas Public Policy Foundation sponsor a panel discussion Monday in Raleigh highlighting the issue. It’s titled “Mens Rea Reform: Does Overregulation Turn Ordinary People Into Criminals?” It’s scheduled for noon Monday at the Campbell University Law School at 225 Hillsborough Street.

“For centuries, it was a universally accepted principle of Anglo-American law that a criminal conviction requires proof not only of a wrongful act, but also of a culpable state of mind,” said report author Jon Guze, JLF Director of Legal Studies. “This state of mind is known as the ‘mens rea.’”

Regulatory growth has damaged that “mens rea” principle, Guze said. “The mens rea requirement is among the oldest and most fundamental principles of law sacrificed on the altar of the regulatory state,” he said. “It is far from clear that the sacrifice was necessary or that the benefits have been worth the cost.”

The mens rea requirement appears to date back to the 12th century, Guze said. Shortly before the American Revolution, an influential legal treatise declared in 1771 that “An unwarrantable act without a vicious will is no crime at all.”

Within the next century, the story changed. “American courts made exceptions for a new class of ‘public welfare’ crimes,” Guze explained. “These crimes punished people, not for doing something inherently wrong or harming some identifiable victim, but simply for violating new regulations that were supposed to improve the social condition.”

Rather than requiring a “culpable state of mind” or a “vicious will,” the standard for these regulation-related crimes was “strict liability.” Only the wrongful act was required for a criminal charge.

The loss of the mens rea requirement coincided with the criminal law’s transformation “from a system for punishing wrongdoers into an instrument for social control,” Guze said. “Those who presided over that transformation regarded the mens rea requirement as an unnecessary impediment to the realization of their plans.”

People in North Carolina are living today with the consequences, Guze said. Chapter 14 of the N.C. General Statutes deals with “Criminal Law.” Its 840 sections define almost as many separate criminal offenses.

“A citizen would make a terrible mistake if he relied on that chapter alone for knowledge of what is and what is not a crime,” Guze warned. “Definitions of hundreds of additional crimes are sprinkled throughout more than 140 other chapters in the General Statutes. Plus these and other chapters include ‘catchall’ provisions that criminalize rules and regulations. These offenses do not appear in the General Statutes at all.”

Many of these crimes do not include any mens rea requirement in the official definition, Guze said. “Courts have found an implicit mens rea requirement in some instances, while they have found that strict liability applies in other cases,” he said. “For many others, the question has not yet been answered in court. This leaves the whole matter up in the air.”

“The result is patently unjust,” Guze added. “Because there are so many crimes and because they have been documented in such a haphazard fashion, it is impossible for ordinary citizens to learn about and understand all criminal laws and criminalized regulations that govern their everyday activities.”

Any future crime with a “strict liability” standard ought to require public deliberation and an on-the-record vote from state lawmakers, Guze said. “This would hold legislators individually accountable,” he said. “Citizens also can demand adequate notice of these new crimes. The words ‘strict liability’ should be an explicit part of the definition of a crime.”

The report’s main recommendation involves recodifying the entire body of North Carolina law. “This would include eliminating all crimes that are obsolete, unnecessary, redundant, inconsistent, or unconstitutional,” he said. “The definitions of remaining crimes would be clear and complete, with an explicit statement about the level of mens rea required for conviction. The process also would consolidate the entire body of criminal law into a single, well-organized and clearly written chapter of the General Statutes.”

Guze also calls for a default mens rea standard for criminal offenses created after the recodification. A third recommendation would permit what’s called a “mistake of law” defense for any criminal offense not clearly defined in the General Statutes.

“Some might say that this goes against the legal principle that ignorance of the law is no excuse,” he said. “But that principle has been rendered obsolete by the rise of the regulatory state. Permitting a ‘mistake of law’ defense for crimes that are not clearly defined in the appropriate chapter of the statute book would discourage the legislature from hiding crimes in other places in the future and protect innocent citizens if it did.”

North Carolina should do what it can to revive the important mens rea requirement, Guze said. “This would protect North Carolinians from unjust prosecution now and for the foreseeable future,” he said. “That would not only be a great achievement, it would establish North Carolina as the clear leader in criminal justice reform. It would make us an example for the rest of the country to follow.”

Jon Guze’s Spotlight report, “Mens Rea Reform: The Law Shouldn’t Turn Innocent People Into Criminals,” is available at the JLF website. For more information, please contact Guze at (919) 828-3876 or [email protected] To arrange an interview, contact Mitch Kokai at (919) 306-8736 or [email protected]

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We are North Carolina’s Most Trusted and Influential Source of Common Sense. The John Locke Foundation was created in 1990 as an independent, nonprofit think tank that would work “for truth, for freedom, and for the future of North Carolina.” The Foundation is named for John Locke (1632-1704), an English philosopher whose writings inspired Thomas Jefferson and the other Founders.

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