by Mike Schietzelt
Criminal convictions are expensive. Court fees, fines, and other costs add up quickly and leave a defendant with crushing debt. And the collateral consequences of a criminal record can be even more painful: diminished job opportunities, difficulty finding housing, and disqualification from public benefits.
This is the steep price a criminal defendant pays for burglarizing a home. Or trafficking heroin. Or letting their lawn grow too tall.
Wait. Their lawn?
Many towns and cities in North Carolina have passed ordinances prohibiting residents from allowing the overgrowth of grass or noxious weeds. In Huntersville, your grass can’t grow taller than 10 inches. About a hundred miles away in Saluda, your grass can legally grow to 24 inches, making Saluda somewhat of a safe haven for lawn care procrastinators.
That many towns would pass such an ordinance should be unsurprising. Overgrowth invites all kinds of unwanted critters and creates a real eyesore for other residents. A town or a city that wished to keep the unwanted critter population down or market itself as a beautiful place to live, work, or visit would clearly wish to cut down on negligent landscaping. Most of us would agree that an overgrowth ordinance imposing a civil penalty would be perfectly reasonable. But to make it criminal? That seems like a stretch – even for habitual offenders.
The problem is that an old state law (first passed in 1871) makes these ordinances and most others criminal by default. Local governments have to explicitly opt-out of this default rule to avoid imposing criminal consequences.
This arrangement is problematic, not least of all because some local governments don’t seem to be aware of it. Responding to legislation requiring all local governments to provide a list of all crimes passed by ordinance, multiple bodies responded that they did not have any such crimes. A quick search of their local ordinances found otherwise. The resident in their town that fails to have a screen on an open window is at risk of receiving a Class 3 Misdemeanor citation whether the town council knew it or not.
The list of behaviors criminalized by local ordinances is remarkable—particularly when one considers the collateral consequences that come with a criminal charge or conviction:
The automatic criminalization of local ordinances has created a mess for our state. Our criminal laws lack intentionality. They lack uniformity. They lack clarity. As a result, our criminal laws are ineffective, inefficient, and unfair.
Fortunately, the N.C. General Assembly appears poised to address this disastrous issue. Earlier this month, the Senate passed Senate Bill 584, a bill that would eliminate the automatic criminalization of ordinances. Additionally, SB 584 would create a sunset for criminal ordinances that already exist. This is a good thing for the state.
Cities and towns can still regulate begging, pets, and lawn care. The fix for many local governments could be as simple as passing a new “default penalty” ordinance imposing a civil fine for any violation. But SB 584 would strongly curtail the use of the criminal law as a mechanism to enforce local “broken window” laws.
The criminal code is a powerful mechanism that imposes strong penalties. It shouldn’t be used to criminalize poverty. It shouldn’t be used to punish homeless people for being homeless. And it shouldn’t be used to make your neighbor mow his lawn.