John Locke Update / Research Brief

Preserving Due Process in the Era of the Regulatory State: Part Three

posted on in Law & Regulation, Legal Update
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In Parts One and Two of this series, I bemoaned the erosion of what was once a fundamental principle of Anglo-American, namely, that:

 A criminal conviction requires proof, not only of a “guilty act” (actus reus), but also of a “guilty mind” (mens rea).

As I explained, the erosion of the mens rea requirement coincided with the emergence of the regulatory state and the concomitant transformation of the criminal law from a system for punishing wrong-doers into an instrument for social engineering. Together, these changes led to a rapid expansion in the number of criminal offenses and the range of previously lawful conduct to which they applied. As I observed:

The result is patently unjust. Because there are so many of them and because they are so obscure, it is impossible for ordinary citizens to learn about and understand all the many laws and regulations that govern their everyday activities, and because so many of those laws and regulations criminalize conduct that is not inherently evil and that does not harm anyone, 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. Nevertheless, for many crimes and most “regulatory” crimes, the official definition does not include any mens rea requirement. Anyone who inadvertently violates an obscure criminal law or criminalized regulation must, therefore, rely on prosecutorial discretion and judicial interpretation for protection against unjust prosecution and conviction.

In this final installment in the series, I want to address the question of what can be done to improve matters.

Given the weight of both state and federal precedent, it seems clear that the North Carolina legislature has, and will continue to have, the power to create strict liability crimes if it chooses to do so. Nevertheless, the citizens of North Carolina can demand that, if and when, the legislature decides to exercise that power, it must do so—not by delegating the power to some unelected agency or self-interested professional licensing board—but after public deliberation and an on-the-record vote by which the members can be held individually accountable. And the citizens can also demand that, if and when, the legislature decides to create a strict liability crime, it must provide the public with adequate notice by making strict liability an explicit part of the definition of that crime and publish that definition where it can easily be found in the appropriate chapter of the statute book.

Taking the following steps would ensure that both of those demands are met.

  1. Review, revise, and recodify the entire body of North Carolina criminal law.

This is something that the John Locke Foundation and others have been advocating for some time. If properly implemented, the consolidation, clarification, and optimization process would:

  • 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 mens rea, 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.

Successful recodification along those lines would provide an immediate solution to the problems discussed in this Spotlight, including the problems associated with mens rea. To ensure that those problems do not emerge again in the future, however, the following complementary measures should be considered.

  1. Provide a default mens rea standard for criminal offenses created subsequent to recodification.

The idea of a default mens rea standard is not new. The Model Penal Code, which has been adopted by many states since it was originally developed by the American Law Institute since 1961, includes the following provision:

When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

North Carolina could adopt a similar default standard for all crimes created subsequent to recodification. Doing so would ensure that the North Carolina legislature never again creates a strict liability crime by accident or by stealth. Instead, legislators would be forced to go on the record whenever they wanted to create a strict-liability crime, which would discourage them from creating such crimes without careful deliberation.

  1. Make “mistake of law” a defense for any criminal offense not clearly defined in the General Statutes in the new, consolidated “criminal law” chapter.

This recommendation conflicts with a principle of law that is, if anything, even older than the mens rea requirement, i.e., “ignorance of the law is no excuse.”

Unlike the mens rea requirement, however, the ignorance of the law is no excuse principle really has been rendered obsolete by the rise of the regulatory state. The principle made sense in historical times because in those days most citizens could be expected to know what was and was not a crime. The number of crimes was small and changed little from year to year, and, moreover, most of those crimes involved acts that were either inherently evil or caused direct harm to an identifiable victim.

None of these conditions obtains at present in North Carolina, however, and while the recodification recommended above would go a long way towards improving matters in the short term, permitting a mistake of law defense for crimes that are not clearly defined in the appropriate chapter of the statute book would both discourage the legislature from hiding crimes away in other places in the future, and protect innocent citizens if it did.

Readers who would like to learn more about these recommendations, and about mens rea reform more generally, may want to read the forthcoming John Locke Foundation Spotlight entitled, “Mens Rea Reform: The Law Shouldn’t Turn Innocent People into Criminals.”

Jon Guze is the Director of 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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