by Becki Gray
Former Senior Vice President, John Locke Foundation
*Updated with Sen Wells’ comments to the GSC.
With everyone’s attention on COVID-19 for the last several weeks, you may have missed an important meeting of the General Statutes Commission. This is a group of dedicated legal and policy experts who research and correct NC Statutes. Session Law 2019-198 directed them to make recommendations to clean up NC’s criminal code. After several meetings and a review of reports submitted, it was clear the problem was even bigger than anticipated and some kind of relief or additional direction was needed.
Because of the John Locke’s extensive work and commitment to comprehensive and substantial reforms to our criminal law system, we submitted materials and commentary for the commission’s consideration.
JLF’s latest report, Criminal Law Reform in North Carolina; The Case For a New, Complete Code Based In First Principles was distributed to all Commission members and entered into the record of the April 3, 2020 meeting.
Jon Guze, JLF’s legal expert and leading expert in NC’s criminal law reform offered the following commentary, which was also entered into the record.
Comments Regarding the General Statutes Commission’s Responsibilities
Under Session Law 2019-198 (Senate Bill 584)
April 3, 2020
Director of Legal Studies
John Locke Foundation
Thank you for being so diligent about fulfilling your responsibilities under Session Law 2019-198 and for the interest you’ve taken in the overall topic of criminal law reform. And thank you for giving me this opportunity to comment on behalf of the John Locke Foundation.
I want to begin by reminding everyone that the task assigned to the Commission by Session Law 2019-198 is very specific. Section 6 requires you to study the crime reports submitted by local governments and regulatory agencies and then respond to a single question, namely, “whether any conduct currently criminalized … by an ordinance of a county, city, town, or metropolitan sewerage district or … [by rules promulgated] by an agency, board, or commission, should have criminal penalties provided by a generally applicable State law.”
At your March meeting, the local government representatives who testified spent most of their time discussing matters that aren’t directly relevant to the question posed by S.L. 2019-198. They wanted you to know that there are absolutely no problems with the status quo regarding local authorities’ power to create and enforce ordinances with criminal penalties. Now, of course, nothing in this world is perfect, and there definitely areproblems with the status quo regarding ordinance crimes, as I’m sure some of today’s other speakers will attest.
However, in my comments I’d like to stick to S.L. 2019-198 and the question it asks this commission to answer. Although it wasn’t their primary focus, the local authorities’ representative who addressed you last week didclaim to know the answer that question, at least as far as ordinance crimes are concerned. According to them, noconduct currently criminalized … by an ordinance of a county, city, town, or metropolitan sewerage district should have criminal penalties provided by a generally applicable State law. But I’d like to respectfully suggest that those local government representatives can’t really know that for sure. At this point, no one can.
As Floyd Lewis explained at your February meeting, almost all of the local authorities and administrative agencies that were required to submit reports have done so. The result is a lot of reports—approximately 700, if I’m not mistaken. However, the sheer number of reports isn’t the main problem. As Mr. Lewis also explained, the reports vary widely in format, and—in many instances—in the reliability and helpfulness of the information they provide.
For the record, the John Locke Foundation has also reviewed those reports, and we concur with Mr. Lewis’s analysis. Given the current state of the crime reports, we don’t think it’s feasible for the Commission to made a final determination about whether any existing ordinance or regulatory crimes should be replaced with new statutory crimes—certainly not by May 1st, and probably not at all unless something can be done to improve the quality of the reports. As was discussed at the February meeting, the task would be facilitated if the relevant local authorities, agencies, and boards were required to resubmit their crime lists in a well-designed, pre-determined format, but, even with clear, consistent, and complete crime lists in hand, the task would require many hours of analysis by legal and policy experts.
Which raises an important question. If the members of this commission, ably assisted as they are by Mr. Lewis and the other members of staff, cannot answer a simple question about municipal and administrative crimes, where does that leave the ordinary citizen? North Carolina’s local authorities and administrative agencies took two years to compile and submit their crime lists. Your staff, and the staff at the John Locke Foundation, have spent several months reviewing and analyzing those lists. And yet we’re still very far from having anything like a usable compilation of ordinance and regulatory crimes.
What’s more, the situation is just as bad when it comes to statutory crimes. Unlike ordinance crimes, statutory crimes are all compiled in one place—in the 27 volumes of the North Carolina General Statutes—but that doesn’t mean ordinary citizens have fair notice of what is and is not a criminal offence. Of the 2,500 separate crimes defined by statute in North Carolina, only about 900 appear where one would expect to find them, in Chapter 14 under the title “Criminal Law.” The other 1,600 or so are sprinkled here and there throughout 141 different chapters of the statute book.
Moreover, the haphazard way our criminal statutes are compiled isn’t the only problem. The law that originally instructed local governments and regulatory agencies to submit crime lists, S.L. 2018-69, also instructed the Administrative Office of the Courts to compile a list of statutory crimes that are obsolete, duplicative, or unconstitutional, or for which the definition fails to state a mens rea, contains undefined terms, or is inconsistent with the definition of other crimes. The AOC was no more successful at its task than you have been at yours.
In short, the disordered state of ordinance crimes in North Carolina is just one part of a larger problem, which is that years of rapid, ill-considered, and poorly executed expansion have saddled us with a sprawling, incoherent, and inaccessible body of criminal law. Jessica Smith wasn’t able to speak today due to a prior commitment, which is a shame because Jessie has a proposed a solution to that problem. For those of you who don’t know, Jessie is the W. R. Kenan Jr. Distinguished Professor of Public Law and Government at the University of North Carolina School of Government, and she is, unquestionably, the leading expert on the criminal law in North Carolina. In 2017, she released a report explaining how the multi-faceted problem described above could be solved through a systematic process of recodification. Her report was well-received by legislators from both parties; so much so that, near the end of the 2017 session, legislation was introduced to create a recodification commission along the lines she had recommended. The bill didn’t come to a vote, but it came surprisingly close, despite being a new initiative introduced late in the session.
Where does all this leave the General Statutes Commission? In my view, the most constructive way forward would be for the Commission to recommend that the General Assembly relieve the Commission of its responsibility for determining whether any conduct currently criminalized by ordinance or regulation should be replaced by a generally applicable State law, and, instead, assign that task to a group of experts with the time and resources to carry it out properly. Given everything I’ve said up to now, you won’t be surprised to learn that I think the ideal group to undertake that task would be a criminal law recodification commission like the one recommended by Professor Smith.
The two primary sponsors of the bill that became S.L. 2019-198, Senator Andy Little and Representative Dennis Riddell, have both been in contact with the Commission regarding its responsibilities under the act. Based on what they’ve said up to this point, I suspect they’d support such a recommendation.
Rep. Dennis Riddell, Session Law 2019-198 sponsor, Chairman of House Regulatory Reform Committee and long time criminal law reform advocate sent the following email to GSC members prior to the meeting.
From: Rep. Dennis Riddell
Sent: Friday, April 3, 2020 9:45 AM
To: Rep. Ted Davis <[email protected]>; Sen. Chuck Edwards <[email protected]>
Cc: Floyd Lewis (Bill Drafting) <[email protected]>
Subject: General Statutes Meeting RE: S.L. 2019-198 Recodification Effort
I apologize for the late hour of this email just prior to the GSC meeting. Like you I have been very busy with COVID-19 constituent services. In light of testimony received during your last meeting and some personnel changes in other areas as one of the primary sponsors of SL 2019-198 and in light of the fact that we are in a healthcare crisis that requires 100% of our attention, I would like to propose the following:
Again I apologize for the last minute nature of this email. Of course I am certainly open to any additional GSC recommendations regarding this matter.
Rep. Dennis Riddell
District 64, Alamance County
416A Legislative Office Building
300 N. Salisbury St.
Raleigh, NC 27603-5925
Senator Andy Wells, Senate sponsor of Session Law 2019-198 and long time regulatory reform leader called into the meeting and offered comments:
We are trying to achieve consistency and clarity in criminal law. With criminal penalties scattered across hundreds of thousands of statutes, over 100 counties and 500 cities with ordinances carrying criminal penalties with inconsistences, duplication and confusion the criminal code is a mess. Two strong bi-partisan bills passed the General Assembly the time to act is now. The General Statutes Commission has resources to do what the law requires you to do. If you need more, you can include that in your May 1 report. If there is any disagreement on this issue, it is that the Senate provides a more aggressive timeline and is hesitant to appoint yet another body to address the needed reforms. The Senate wants a criminal code that is clear and consistent. We want reforms done in a timely fashion. We want to know how to move this process to the next step.
The decision of the Commission was to report, as required, to the General Assembly explaining the difficulty in compiling the reports and making recommendations. Rep. Riddell and Sen Andy Wells intend to propose clarifying legislation during the short session.