Overcriminalizing the Old North State: A Primer and Possible Reforms for North Carolina

In recent years, North Carolinians selling hot dogs without a license, operating teeth-whitening kiosks in malls, and dispensing dietary advice on the internet have all run afoul of the state’s criminal law. In fact, North Carolina’s criminal laws today deal with many such ordinary business practices and are sweeping in scope:

• North Carolina’s 765-section criminal code is 55 percent larger than Virginia’s and 38 percent larger than South Carolina’s.
• A large number of crimes including drug and motor-vehicle offenses, regulatory crimes, and local ordinances—lie outside the state’s criminal code.

Year after year, North Carolina has added new crimes, most of which remain “unutilized”:

• Over the last six years, the state has created, on average, 34 crimes annually, over half of which are felonies.
• Among new crimes created in 2009 and 2010, 68 percent were never charged in 2012, and only 23 percent were charged more than once.

Many of these new crimes have not required criminal intent, meaning individuals could be held criminally responsible for violating rules unknowingly. And, even assuming most prosecutors effectively exercise sufficient discretion, the vast reach of North Carolina’s criminal law creates a serious risk of wide variance in treatment across jurisdictions, as well as a diversion of scarce resources away from the enforcement of serious violent and property crimes.

To address overcriminalization, North Carolina policymakers should consider:

1. Creating a bipartisan legislative task force to conduct hearings and establish guidelines governing the creation of new criminal offenses
2. Creating a commission to review the criminal law, one charged with consolidating, clarifying, and optimizing North Carolina’s criminal statutes
3. Enacting a default mens rea provision, ensuring that to be convicted of a crime requires a showing of intent, unless the legislature clearly specifies otherwise

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