One of the many things I like about living in North Carolina is the extent to which North Carolinians live up to the state motto: “Esse Quam Videri” (“To Be Rather than to Seem”). Here in North Carolina, we don’t make a show of virtue; we just get on doing what needs to be done.
Criminal justice reform provides a good example. Many states have done more to publicize their criminal justice reform efforts, but few have actually accomplished as much as we have in recent years, and fewer still have the potential to accomplish as much as we are poised to accomplish in the years to come.
A Long History of Quiet Leadership
In the 1980s, when states all over the country were following the federal government’s example and adopting civil asset forfeiture as a crime-fighting tool, North Carolina refused to go along. Instead, under our criminal forfeiture laws, property linked to a crime has only been subject to forfeiture after the property’s owner has been convicted of that crime. And under our constitution, the proceeds from forfeited property have not reverted to the agency that made the seizure. Instead, they have been earmarked exclusively for public education. These features of North Carolina law protect the innocent and discourage abuse. They have made our asset forfeiture regime a model for the many states that have seen the error of their ways and enacted asset forfeiture reform measures in recent years.
In 2011, North Carolina became one of the first states to enact justice reinvestment legislation, and our criminal justice statistics have been improving ever since. According to 2017 data from the U.S. Bureau of Justice Statistics, North Carolina’s overall imprisonment rate was well below the national average and the best in the Southeast. Racial disparities are far lower in North Carolina than in most parts of the country – only seven states have lower imprisonment rates for African Americans – and the rate of jail admissions is also low. From 2016 to 2017, there were 1,253 jail admissions per 100,000 residents in North Carolina. The national average was 1,506, and only eight states had admission rates that were lower than ours.
Unlike the adult justice system, North Carolina’s juvenile justice system wasn’t reformed in 2011. However, thanks to the persistent efforts of a coalition of policy groups from across the ideological spectrum—including both the John Locke Foundation and the ACLU—in 2017, North Carolina enacted the Juvenile Justice Reinvestment Act which raised the age of juvenile jurisdiction to include 16- and 17-year-olds. Once it has been fully implemented, it will make our juvenile justice system one of the country’s best.
Just last year, with very little fanfare, North Carolina passed a bill that will make it considerably easier for people with criminal records to join licensed occupations. This was another instance of policy groups putting ideology aside and working together on common-sense reform; in this case, the groups were the John Locke Foundation and the North Carolina Justice Center. In typical North Carolina fashion, the bill was given a vague and unassuming name, “An Act to Clarify and Simplify a Licensee’s Qualifications for Licensure,” but it is, in fact, a very well-crafted piece of legislation that will improve the lives of hundreds of thousands of ex-offenders in North Carolina. It could, and should, serve as a model for other states.
Why Has North Carolina Been So Successful?
As I said at the outset, I’m quite sure North Carolinians’ no-nonsense, “just get on with it” attitude is part of the reason we’ve been so successful in the area of criminal justice reform, but it’s not the whole story. Another important and probably related factor is the fact that, as illustrated above, in North Carolina policy groups from across the political spectrum have been willing to put aside their ideological differences and work together to support sensible reforms.
Equally important, academic support for criminal justice reform is particularly strong in North Carolina. Among the nationally recognized scholars contributing to criminal justice reform are: Jessica Smith, the W. R. Kenan Jr. Distinguished Professor of Public Law and Government at the University of North Carolina School of Government, who, among many other things, directs the school’s Criminal Justice Innovation Lab; Brandon Garrett, the L. Neil Williams, Jr. Professor of Law at Duke Law School, who heads the Center for Science and Justice; and Sarah Desmarais, a professor of forensic psychology at North Carolina State University, who directs the Center for Family and Community Engagement.
The Next Big Thing
Despite the good work that’s been done over the years, North Carolina’s criminal justice system is still far from perfect. Along with the policy groups and academics mentioned above, many others are studying ways to improve the administration of justice at every stage, from pre-trial to expungement. Here at the John Locke Foundation, however, we are focusing on something more fundamental: a long-term solution to the problem of overcriminalization.
Years of rapid, ill-considered, and poorly executed expansion have saddled North Carolina with a sprawling, incoherent, and inaccessible body of criminal law. Almost 2,500 separate crimes are defined in the North Carolina General Statutes: 874 where one would expect to find them in Chapter 14 under the title “Criminal Law,” and another 1,600 sprinkled here and there throughout 141 different chapters of the statute book.
Making matters worse, various “catch-all” statutes make it a crime to violate the rules and regulations promulgated by administrative agencies, professional licensing boards, county and municipal governments, and metropolitan sewerage districts. Those criminalized rules and regulations do not appear in the statute book at all. Instead, a citizen who wants to learn about them must comb through thousands of pages of the administrative code and other compilations and records.
The sheer number of criminal laws and criminalized regulations (and the haphazard and careless way they are documented) make it impossible for ordinary citizens to learn about and understand all the rules that govern their everyday activities and subject them to criminal liability. 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, citizens cannot rely on their intuitive notions of right and wrong to alert them to the fact that they may be committing a crime. And yet for many crimes, including most regulatory crimes, no mens rea (mental state) element is specified in the definition. As a result, a citizen can be found guilty without proving any criminal knowledge or criminal intent at all.
Generally referred to as “overcriminalization,” this state of affairs:
- Creates uncertainty and wastes scarce law-enforcement resources;
- Causes mistakes and encourages litigation;
- Places innocent people at risk and discourages entrepreneurship;
- Encourages abuses like selective enforcement and over-charging;
- Undermines public confidence in, and respect for, the rule of law;
- Impedes piecemeal improvements like sentencing reform and reforms directed at police and prosecutorial misconduct.
The Solution: Comprehensive Criminal Law Reform
Providing a long-term solution to the problem of overcriminalization will require changes, not only to the existing body of criminal law itself but also to the process through which it grows. Regarding the former, we recommend subjecting the entire body of criminal law to a comprehensive process of review, revision, and recodification. The explicit goals of the process should be to:
- Eliminate all crimes that are obsolete, unnecessary, redundant, or unconstitutional;
- Resolve all inconsistencies;
- Downgrade minor regulatory offenses from crimes to infractions;
- Ensure that the definition of each crime is clear and complete and states explicitly what level of criminal knowledge or intent is required for conviction; and
- Consolidate the revised body of criminal law into a single, coherent, easily understood chapter of the General Statutes.
Recodification along those lines will solve the problem of overcriminalization today, but it will not prevent it from recurring in the future. To accomplish that, we have proposed three additional measures, to be undertaken either as part of the recodification process or as supplemental pieces of legislation:
- Create a formal oversight body to review proposed crimes and periodically audit existing crimes;
- Provide a default “criminal intent” standard for all crimes created after recodification, and specify that strict liability crimes can only be created by explicit statutory enactment;
- Make “mistake of law” a defense for any crime created after recodification that is not clearly defined in the “criminal law” chapter of the General Statutes; and
- Rescind or restrict the power of agencies, boards, and local governments to create crimes, and specify that to be enforceable, any regulation that carries a criminal penalty must be explicitly approved by the General Assembly.
Even more than the criminal justice reforms discussed above, solving the problem of overcriminalization will require the same kind of persistent commitment. Fortunately, here in North Carolina, persistence is something we’re good at.
Getting the Job Done
The John Locke Foundation has been committed to criminal law reform ever since two papers published in 2014 brought the problem of overcriminalization to our attention. The papers were “Overcriminalizing the Old North State” by Manhattan Institute scholars James Copland and Isaac Gorodetski, and “Overcriminalization in North Carolina” by UNC School of Government Professor Jeff Welty. In 2015, we arranged for Copland and Gorodetski to discuss their report with state legislators, and we also published a “Model Resolution on Regulatory Overcriminalization.” In 2016, we introduced “Overcriminalization” as a new section in our biennial policy guide and as a new topic for our biennial candidates’ forum, and we began our own study of the problem. In 2017, we released a report summarizing our preliminary findings, which we timed to coincide with a panel discussion of mens rea reform that we had organized with the Texas Public Policy Foundation.
One of the panelists at the 2017 event was UNC’s Jessica Smith. Since Jessie is, without peer, the leading expert on the criminal law in North Carolina, she was naturally well aware of the problem of overcriminalization, and she had been working on a report of her own discussing how the problem could be solved through recodification. She released the report immediately after the event, and both her presentation and her report were very well-received by state 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 Jessie had recommended. The bill didn’t come to a vote, but it came surprisingly close, despite being introduced late in the session. And, perhaps more importantly, it helped raise awareness of and interest in the problem of overcriminalization.
Encouraged by that success, early in 2018, a group of interested parties met with the chief justice of the North Carolina Supreme Court, Mark Martin, to discuss overcriminalization and recodification. What emerged from that meeting was an informal recodification working group that included, in addition to Prof. Smith and several John Foundation staff-members, representatives of both houses of the General Assembly, the Administrative Office of the Courts, and the Lieutenant Governor.
Thanks to the efforts of the working group, a bill to begin addressing the problem of overcriminalization was enacted during the 2018 session. Session Law 2018-69 required the Administrative Office of the Courts to identify all statutorily defined crimes that are duplicative, inconsistent, rarely charged, incompletely defined, obsolete, or unconstitutional, and it required all state agencies and licensing boards, and all counties and municipalities, to provide lists of all the crimes they had created outside the statutory context. The law was only partly successful in terms of eliciting the required reports, but it was very successful in terms of illustrating the extent of the problem and the urgent need for reform.
Building on that success, in 2019, the legislature enacted another bill addressing overcriminalization. Session Law 2019-198 set a new deadline for local governments to submit their crime reports and imposed penalties on any that failed to meet it. It also subjects any new agency rule carrying criminal penalties to automatic legislative review. It brings the General Statutes Commission into the process by instructing it to study the crime reports and recommend any rules or local laws that should be adopted statewide. This latter provision may turn out to be the most important. At a recent meeting of the commission, it became clear that, while the commissioners were far from satisfied with the reports that had been submitted to-date, the members welcomed the opportunity to become involved in criminal law reform.
Throughout the period already discussed and continuing to the present day, the John Locke Foundation has been doing everything possible to educate the public and the legislature about the need for comprehensive criminal law reform. In addition to posting regularly about criminal law reform on our Locker Room blog and publishing numerous research reports and op-eds, over the course the last year members of our staff attended more than a dozen legislative meetings and hearings, made numerous media appearances, and reached out to a wide variety of stakeholders, including district attorneys, law enforcement officers, and representatives of local governments and administrative agencies. We also arranged two public events: a Shaftesbury Society Presentation in April and an all-day Criminal Law Reform Summit in October. Legislators from both parties and both houses of the General Assembly were well-represented among the panelists and the attendees at the Summit, as were policy experts, jurists, and stakeholders. (Videos of the various sessions are available here, here, here, here, and here.)
Overcriminalization remains a serious problem in every state and at the federal level. Here in North Carolina, we have been working on the problem steadily, methodically, and without fanfare for many years. As a result, North Carolina is uniquely poised to achieve a breakthrough solution in the form of comprehensive criminal law reform. If successfully implemented, comprehensive criminal law reform will dramatically improve the administration of justice in North Carolina, making it more effective (by improving public safety), more efficient (by controlling costs), and fairer (by protecting, not just the rights of the criminally accused, but also the rights of crime victims). Criminal law reform will also make further reforms easier to achieve and provide inspiration and example for the rest of the country.
Getting to this point is a major achievement in and of itself. Many states in our position would be shouting the news from the rooftops. Here in North Carolina, however, we’re just quietly getting on with it.
For more information, see:
- Preventing Asset Forfeiture Abuse in North Carolina: Part I and Part II
- Improving Juvenile Justice: Finding More Effective Options for North Carolina’s Young Offenders
- Raise the Age: Bringing North Carolina’s Juvenile Justice System Into the 21st Century
- Mens Rea Reform: The Law Shouldn’t Turn Innocent People into Criminals
- Criminal Law Reform
- Criminal Law Recodification in North Carolina: The Whole Country’s Watching
- North Carolina Takes Another Step Forward on Criminal Law Reform