by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Over the course of recent weeks, Americans have been shocked by the unseemly and divisive spectacle of police officers threatening to arrest people, and in some cases actually arresting people, for engaging in a peaceful protests, for attending religious services, even for playing with their kids in deserted parks. While these incidents are particularly upsetting, they are far from unique. All across the country, innocent citizens are at constant risk of criminal prosecution for seemingly innocuous activities.
To understand how this happened, we need to go back to the time in late 19th and early 20th centuries when progressive politicians and jurists were laying down the foundations for the modern regulatory state. Those progressives made the fateful decision to transform the criminal law from a system for deterring and punishing wrongdoers into an instrument for social control. Over the years, as the regulatory state expanded and its social engineering goals became more ambitious, the number and range of crimes inevitably grew, and the result is the situation we’re dealing with today, a situation that is commonly known as overcriminalization.
In North Carolina the problem of overcriminalization is particularly acute because of catch-all statutes that automatically criminalize regulatory rules and local ordinances. As a result, in North Carolina dentists can be arrested and criminally proscuted for running an ad that fails to state whether they have a general or a specialty practice, and homeowners can be arrested and criminally prosecuted for allowing their grass to grow too long.
It’s no surprize, therefore, that every one of the COVID-19 emergency orders in North Carolina has included an enforcement provision that makes violation of the order a crime. The state and local authorities that issued these emergency orders mindlessly followed the template established by the original progressives more than a century ago: they used the criminal law for regulatory purposes.
It doesn’t have to be this way. The criminal law isn’t an appropriate tool for enforcing rules the specify what dentists must say about their practices in their ads or how often homeowners must cut their grass, and it isn’t an appropriate tool for enforcing these emergency orders either. It’s time to rethink how, and how much, the modern regulatory state should police people’s conduct.