North Carolina Overcriminalization: Update 2017
In May 2014, the Manhattan Institute published Overcriminalizing the Old North State: A Primer and Possible Reforms for North Carolina. The study showed that North Carolina had a criminal code that contained 765 sections—more than six times as many as in the Model Penal Code. North Carolina lawmakers created 204 new crimes during 2009–14, of which 55% fell outside the state’s criminal code. Many of these new crimes, about half of which were felonies, did not did not require the state to make a showing of criminal intent (mens rea) on the part of the accused.
In the 2015–16 legislative session, the North Carolina General Assembly created 114 new criminal offenses. Among the newly created offenses, 22% were felonies and 78% fell outside the state’s criminal code.
The Manhattan Institute’s 2014 study recommended the creation of “a commission to review the criminal law, one charged with consolidating, clarifying, and optimizing North Carolina’s criminal statutes.” This recommendation now appears to have legislative momentum: lawmakers led by Representative Dennis Riddell (R., Alamance) have drafted legislative language—included in several bills currently under consideration—that would create a “Criminal Code Recodification Commission.” As currently drafted, this legislation would charge the commission with eliminating “unnecessary, inconsistent, or unlawful provisions in the code” and placing limits on “the ability of administrative boards, agencies, local governments, or other entities to create crimes.” It also specifically mentions the absence of criminal-intent requirements in many North Carolina criminal statutes.
The North Carolina General Assembly reconvenes for a special session on August 3, 2017, and is scheduled to go into session again in September. Ideally, the legislation could be enacted this summer or fall to jump-start the commission’s efforts; if not, one hopes that the legislature will take it up when it reconvenes in January 2018.