by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Last month, I wrote about Session Law 2018-69: An Act to Assist the Criminal Law Recodification Working Group, which had just been unanimously approved by both houses of the North Carolina General Assembly and signed into law by Governor Cooper. As I’ve written previously, the law 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.
While I noted that the information collected under S.L. 2018-69 would be invaluable to the recodification working group as it studies how to transform North Carolina’s sprawling, incoherent, and unintelligible body of criminal law into “a clear, well-organized, and principled criminal code,” it’s important to recognize that we already know enough about the current state of North Carolina’s criminal law to be sure we have a problem that needs to be addressed.
We know, for example, that the definitions of over 800 crimes appear in Chapter 14 of the North Carolina General Statutes under the title “Criminal Law,” and we know that’s significantly more than in the corresponding chapters of other states’ statute books. We also know that the definitions of more than 1,600 additional crimes are sprinkled here and there throughout another 144 chapters of the General Statutes that do not, on their face, deal with criminal law at all.
We know that numerous various “catch-all” statutes criminalize the rules and regulations promulgated by administrative agencies, professional licensing boards, county and municipal governments, and metropolitan sewer districts. We know that those organizations have been promulgating such rules and regulations at a furious rate. And we know that, despite the criminal penalties that attach to them, 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.
Once the Administrative Office of the Courts completes its task under S.L. 2018-69, we will know exactly which crimes are “duplicative, inconsistent, rarely charged, incompletely defined, obsolete, or unconstitutional,” but we already know that all these problems are quite common.
Take for example the problem of duplicative crimes such as with larceny, or, as it’s more commonly known, theft. Taking another person’s property with the intention of permanently depriving them of that property has always been a crime in North Carolina, regardless of what the property is. But that hasn’t stopped the General Assembly from creating dozens of specialized larceny crimes including:
Each of these crimes has its idiosyncratic definition, and many of them could apply to the same act of theft. That sort of duplicity doesn’t make our property any safer, but it does add cost and uncertainty to the criminal adjudication process at every stage, and it also creates opportunities for mistakes and abuse.
Or consider the problem of incomplete definitions. The most commonly omitted element is called mens rea, i.e., a statement regarding the level of criminal knowledge or criminal intent that is required for conviction. Mens rea protects the innocent by distinguishing between a mistake or accident (for which restitution may be required) and an actual crime (that is deserving of punishment and opprobrium).
To illustrate, let’s return to the traditional crime of larceny. If, at the end of a visit, I take home my neighbor’s umbrella in the mistaken belief that it belongs to me, I may be legally and morally obliged to return it, but I have not committed a crime. If, on the other hand, I take the umbrella knowing it is not mine and with the intention of keeping it, I have committed the crime of larceny. That knowledge and that intention are the mens rea elements of the crime, and both must be proved before I can be convicted.
Now compare that to a more recently created crime: “Sale of speleothems.” What is a speleothem, you may ask? Well, the statute helpfully defines the term:
Speleothem means a natural mineral formation or deposit occurring in a cave. This includes or is synonymous with stalagmites, stalactites, helectites, anthodites, gypsum flowers, needles, angel’s hair, soda straws, draperies, bacon, cave pearls, popcorn (coral), rimstone dams, columns, palettes, and flowstone.
Now suppose an amateur rock collector comes into possession of a cave pearl or a piece of popcorn coral and then sells it to another amateur collector. Should it matter for the seller’s guilt or innocence whether he or she knew it was a speleothem? The statute doesn’t say, and a court could, therefore, assume that this is a strict liability crime for which no mens rea is required.
Many other examples of duplicative crimes and incompletely defined crimes could be provided, and so could many examples of all the other problems listed in S.L. 2018-69.
So, what do we already know about the state of the criminal law in North Carolina? We know that 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. We know that, 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. And we know that, for many crimes, and especially for many regulatory crimes, there is no mens rea requirement to protect the innocent from unjust prosecution and conviction.
In my view, what we already know is sufficient on its own to make a case for recodification, but others may see matters differently. Once the information gathered under S.L. 2018-69 has been assembled and analyzed, however, I expect the case to be overwhelming.