John Locke Update / Research Brief

Legislative Victory Gets N.C. Closer to an Effective, Efficient, and Fair Criminal Code

posted on in Law & Regulation, Legal Update
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Two weeks ago, both houses of the N.C. General Assembly voted unanimously to approve House Bill 379: An Act to Assist the Criminal Law Recodification Working Group. This week, Governor Cooper signed it into law. This enactment constitutes an essential first step towards something North Carolina badly needs: a clear, well-organized, unified criminal code. Everyone who helped to make it happen deserves our thanks, including and especially the bill’s legislative champions, Representative Dennis Riddell (R, 64) and Senator Andy Wells (R, 42).

Two papers published in 2014 set the stage for the current recodification effort. In “Overcriminalization in North Carolina,” UNC School of Government Professor Jeff Welty pointed out that the North Carolina General Assembly had been creating new crimes at a very high rate for years, both in absolute terms and in comparison to other state legislatures. He also noted that the majority of those new crimes had not been recorded in Chapter 14 of the General Statutes, the chapter that deals with criminal law, but, instead, in other chapters.

In “Overcriminalizing the Old North State: A Primer and Possible Reforms for North Carolina,” Manhattan Institute scholars Isaac Gorodetski and James Copland cited Professor Welty’s research regarding the rapid proliferation of crimes created by the state legislature, and they expanded his analysis to include the many new crimes created by regulatory agencies, licensing boards, local authorities, and similar entities. As they explained, in North Carolina various “catch-all” statutes have the effect of criminalizing the rules and regulations promulgated by such entities despite the fact that these rules and regulations that are not recorded in the statute book at all.

At the John Locke Foundation, we were inspired by these papers, and by our own research into the topic, to add “overcriminalization” to our policy agenda in 2016, and we began to study the problem in earnest. In 2017, we released a Spotlight report documenting the rapid proliferation, both of crimes created by the legislature and sprinkled chaotically throughout more than 140 chapters of the N.C. General Statutes, and of criminalized rules and regulations that have been created by agencies, boards, and local governments outside the legislative context. The result, we said, “is patently unjust.”

Because there are so many of them and because they have been documented in such a haphazard fashion, it is impossible for ordinary citizens to learn about and understand all the criminal laws and criminalized regulations that govern their everyday activities. 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.

To deal with this unsatisfactory state of affairs, we urged the General Assembly to, “Review, revise, and recodify the entire body of North Carolina criminal law” to: 

Eliminate all crimes that are obsolete, unnecessary, redundant, inconsistent, or unconstitutional, 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 includes an explicit statement about what level of [criminal knowledge or intent], if any, is required for conviction; and 

Consolidate the entire body of criminal law into a single, well organized and clearly written chapter of the General Statutes.

We timed the release of our report to coincide with a panel discussion of issues related to overcriminalization that we co-hosted with the Texas Public Policy Foundation. Among the panelists was another UNC School of Government professor, Jessica Smith, the W. R. Kenan, Jr. Distinguished Professor of Public Law and Government. Professor Smith had independently come to the same conclusion about the need for recodification and had shared with us a draft of a white paper she was working on called, “Criminal Code Recodification for North Carolina.” As someone who’d been supporting North Carolina’s criminal justice professionals for many years through her teaching, advising, and scholarly publications — most  notably as the author of the definitive treatise on North Carolina criminal law — Professor Smith was uniquely qualified to talk about recodification. In her presentation, she made the case for it with great authority and eloquence, and she also explained in detail how it could be accomplished.

At our invitation, Rep. Dennis Riddell attended the panel discussion, and afterward he and Professor Smith returned to the John Locke Foundation office to discuss the matter in more detail. In the weeks that followed, Rep. Riddell continued to confer with us, Prof. Smith, and other individuals and groups that were interested in recodification.  He eventually introduced a recodification proposal that incorporated many of the features that we had recommended in our Spotlight and that Prof. Smith had recommended in her white paper.

The bill that included Rep. Riddell’s recodification proposal didn’t come to a vote during the last session—not because of opposition but because there were too many items ahead of it on the legislative agenda. However, Rep. Riddell was not discouraged, and neither were we. Earlier this year, the John Locke Foundation’s Senior Vice President, Becki Gray, invited a group of interested parties, including several JLF staff members and representatives from all three branches of state government, to form an informal recodification working group. Prof. Smith was one of the original members of the group, and so were Rep. Riddell and Sen. Andy Wells. It soon became clear that what the group really needed was more and better information about the current state of North Carolina’s criminal laws. Rep. Riddell and Sen. Wells responded to that need by introducing House Bill 379 and getting it approved.

H.B. 379 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.  Another instructs all North Carolina counties, cities, towns, and metropolitan sewerage districts to submit a list of crimes as well. 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.

The information that will be collected under H.B. 379 will be invaluable to the working group as it studies how best to convert North Carolina’s sprawling, incoherent, and unintelligible body of criminal law into a clear, well-organized, and principled criminal code. The fact that the bill was passed unanimously by both chambers of the General Assembly and promptly signed into law by Governor Cooper demonstrates something I have always believed. Regardless of party affiliation or political philosophy, when it comes to criminal justice, everybody wants the same thing: they want a system that is effective, efficient, and fair. With the enactment of H.B. 379, we’re one step closer to achieving that goal.

Jon Guze is Senior Fellow in Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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