Overcriminalization in North Carolina

BY Jeff Welty

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Overcriminalization has received considerable attention—academic and otherwise—in recent years. But most of this attention has focused on the federal criminal code, even though the vast majority of criminal prosecutions in the United States happen in state courts. This Article is the first to provide a detailed assessment of the scope and growth of the criminal law in a single state. It uses several different approaches to measure the growth of the criminal law in North Carolina, and concludes that the criminal law is growing and becoming more severe despite occasional significant examples of decriminalization or reduction in punishment severity. It then attempts to assess whether this growth is appropriate or is the result of overcriminalization and finds that North Carolina does suffer from overcriminalization, though not necessarily more so than other states. The Article briefly explains some of the forces that led to the expansion of North Carolina’s criminal code, and proposes several ways to address overcriminalization.

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The following are available in the print version of the article, available in PDF:

Appendix I. Crimes Created in North Carolina, 2008–2013.. 1967

Appendix II. Crimes Reclassified in North Carolina, 2008–2013.. 2010

Appendix III. Frequency with Which Crimes Created in 2009 and 2010 Were Charged in 2012.. 2022

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Introduction

The topic of overcriminalization has received considerable attention in recent years. Academics have argued that “the most pressing problem with the criminal law today is that we have too much of it,”[1] that the past several decades have witnessed “a punishment binge of unprecedented size and scope,”[2] and that there is a “wide consensus that overcriminalization is a serious problem.”[3] A prominent federal judge has written that the proliferation of criminal laws has created “ubiquitous criminality,” a situation in which “most Americans are criminals and don’t know it, or suspect they are but believe they’ll never get prosecuted.”[4] Congress has held several hearings on overcriminalization in the past few years.[5]

Virtually all the discussion of overcriminalization has focused on the federal government,[6] even though the vast majority of criminal prosecutions in the United States happen in state courts.[7] This Article is the first to provide a detailed assessment of the scope and growth of the criminal law in a single state, North Carolina.[8]

The Article proceeds in four parts. Part I uses multiple approaches to measure the growth of the criminal law in North Carolina and concludes that the criminal law is expanding, even after accounting for several significant examples of decriminalization or reduction in punishment severity. Part II assesses whether the growth is an appropriate response to new forms of criminality or is the result of overcriminalization, and finds that North Carolina does suffer from overcriminalization, though not necessarily more so than other states. Part III explains why North Carolina’s criminal code has expanded, and Part IV proposes several ways to address overcriminalization.

I. Measuring the Growth of the Criminal Law in North Carolina

The first step in determining whether North Carolina suffers from overcriminalization is to describe the scope of the state’s criminal law. However, there is no established metric for quantifying how much conduct a criminal code reaches, or for determining whether one jurisdiction prohibits more conduct than another.[9] Furthermore, “overcriminalization” encompasses several distinct concerns, including (a) whether too much conduct is declared to be criminal, (b) whether the criminal code is too extensive or detailed to be remembered and followed, and (c) whether too many people are incarcerated or otherwise punished through the criminal justice system.[10]

Because there is no single, ideal measure that captures the extent of a state’s criminal law, this section examines several imperfect ones. Together, they paint a picture of a criminal code that is growing larger, more punitive, and more complex, and that is affecting more and more people.

A. Change in the Number of Sections in the Criminal Code

Chapter 14 of North Carolina’s General Statutes is entitled Criminal Law.[11] Although many criminal statutes exist outside of Chapter 14, like certain motor vehicle offenses in Chapter 20 and the drug laws in Chapter 90, Chapter 14 is the heart of the state’s criminal law. It is therefore significant that Chapter 14 has grown substantially over the years. Figure 1 summarizes its expansion since World War II.[12]

Over the past seventy years, the number of sections in Chapter 14 has increased at a rate of over five new sections per year. Cumulatively, the number of sections in the criminal code has almost doubled.

Counting the number of sections in Chapter 14 understates the extent to which the criminal code has grown over the years for at least two reasons. First, many of the sections themselves have grown, often through the addition of new subsections defining additional crimes. For example, from 1986 to 2011 the number of sections in Chapter 14 grew just under 25%,[13] while over a similar time span the number of words in Chapter 14 grew approximately 76%.[14] Second, the above data do not capture the new crimes that have been enacted outside of Chapter 14, even though an examination of the past six legislative sessions, from 2008 through 2013, reveals that more crimes were created in other chapters than in Chapter 14.[15] Some of the crimes outside Chapter 14 are especially broad because they incorporate administrative regulations and make violations of those regulations criminal offenses.[16]

Of course, counting code sections is an imperfect way of assessing criminalization. Some statutes define multiple crimes, while others contain just one. Some statutes are narrowly drawn and rarely applied, while others are sweeping and significant.[17] Still, because more sections generally mean more crimes, the rising number of statutory sections is an important data set when considering the extent of criminalization in North Carolina.

B. Recent Enactment of New Crimes

Looking at the number of new crimes created each year provides another perspective on the growth of the criminal law in North Carolina. Figure 2 presents data on the number of new felonies and new misdemeanors enacted in each of the past six legislative sessions.[18] It includes information only about crimes created by the General Assembly; although local ordinance violations typically are misdemeanors in North Carolina,[19] no effort has been made to compile or to count the number of new crimes created by local governments each year. Detailed information about the crimes created in each session is presented in Appendix I to this Article.

 

In the study period, the General Assembly enacted 101 new felonies, an average of 16.8 per year. It also enacted 105 new misdemeanors, an average of 17.5 per year. Across both types of crimes, the total was 206 new offenses, a rate of 34.3 per year.[20]

The total number of criminal offenses in North Carolina is unknown,[21] so it is not possible to calculate a growth rate based on this data. However, it is worth noting that the legislature is creating new offenses much more quickly than it is creating new sections in Chapter 14,[22] reinforcing the fact that simply measuring the growth in code sections understates the rate of growth in the criminal law.

Just as counting the number of sections in Chapter 14 is not a perfect measure of the growth of the criminal law, neither is counting new crimes. It is sometimes difficult to determine exactly how many new crimes a bill creates;[23] some new crimes replace existing crimes,[24] meaning that not all new crimes represent an expansion of the criminal law; and some new crimes are broad and severe while others are narrowly drawn and carry lesser sanctions. Still, the pace of crime creation is noteworthy, and will be placed in additional context later in this Article.

  1. Reclassification of Crimes

Another way to assess the expansion of the criminal law is to examine legislation that reclassifies existing offenses. While bills that create new crimes expand the scope of the criminal law, bills that increase the penalty for existing crimes increase the severity of the criminal law. Bills that reduce the penalty for existing crimes have the converse effect. The data presented below show that increases in punishment are more frequent in North Carolina than decreases in punishment, meaning that the overall effect of crime reclassification is towards greater criminalization.

North Carolina law groups offenses into classes by severity, with felony offenses ranging from Class A, the most serious, to Class I, the least serious. Misdemeanor offenses, in order of descending seriousness, are classified as Class A1, Class 1, Class 2, or Class 3.[25] Thus, a crime is “upgraded” when it moves from a Class H felony to a Class F felony. A crime is “downgraded” when it moves from a Class 1 misdemeanor to a Class 3 misdemeanor. Appendix II contains detailed information about each reclassification in the past six legislative sessions.[26] The data may be summarized as follows:

 

As Figure 3 demonstrates, there were 69% more upgrades than downgrades in the study period. This is so even though the study period includes a historical anomaly with respect to the frequency of downgrades, as it encompasses the 2013 legislative session. Virtually all of the downgrades that took place in the study period took place in that session.[27] All twenty-one downgrades that took place that year were contained in a single bill. The bill was not focused on criminal justice; in fact, it was the annual appropriations bill.[28] All twenty-one downgrades involved misdemeanor offenses, and all were part of an effort to reduce the state’s expenditures on court-appointed lawyers in criminal cases by making more offenses so minor that the appointment of counsel would not be required.[29] This mass reclassification was quite different from the typical piecemeal changes to the criminal law that take place each year. The data from 2008 to 2012, during which the legislature averaged one downgrade per session, are probably more representative of the long-term trend. If the 2013 downgrades were to be excluded from the data because they are historically anomalous, the disparity would be forty-four upgrades to five downgrades, almost a nine-to-one ratio. Even when including the 2013 downgrades, the legislature enacted nearly twice as many upgrades as downgrades.

Because the consequences of felony charges and convictions are much greater than those associated with misdemeanors, it is worth counting the upgrades and downgrades that cross the felony-misdemeanor barrier separately. In the study period, eight different misdemeanors were upgraded to felonies, while just a single felony was downgraded to a misdemeanor. The reclassification data therefore support the idea that the criminal law is becoming more severe.

  1. Incarceration Rates

A final way of looking at the scope of the criminal law in North Carolina is by examining incarceration rates in the state. Because North Carolina prison-population data are available online starting in 1977,[30] Figure 4 begins at that time:

 

 

There is a dip at the end of the trend line, which appears mainly to be the result of a decline in felony convictions and a tweak to the state’s sentencing laws.[31] But overall, North Carolina’s incarceration rate has been climbing over the thirty-five years covered in the chart.[32] In other words, this way of looking at the criminal law reveals a similar picture to the others: an expansion of the criminal law over time.

Like the other measures set forth above, the incarceration rate is not a perfect way to capture the extent of criminalization in North Carolina. It results in part from factors that are mostly exogenous to the analysis, such as the crime rate [33] and the crime clearance rate, i.e., the percentage of crimes that are solved by law enforcement. However, it is also influenced by the scope of the criminal law and by sentencing practices, both of which are a part of the overcriminalization discussion.

  1. Countertrends

The data presented above support the proposition that in North Carolina, the criminal law generally is expanding rather than diminishing. However, although it is sometimes said that the criminal law is a “one-way ratchet,”[34] a complete accounting of the history of North Carolina’s criminal law shows that is not the case. Even as the criminal law has grown overall in North Carolina, several significant developments have reduced its reach.

Perhaps the most significant development took place in 1985, when the General Assembly decriminalized many motor vehicle offenses, making them infractions rather than misdemeanors.[35] This was done on the recommendation of the Courts Commission, which estimated that it would affect “at least 100,000 cases” annually.[36] Among the reasons for the recommendation was the sense that “giv[ing] every person convicted of a minor motor vehicle offense a criminal record” was inappropriate, and that classifying motor vehicle offenses as misdemeanors diluted the force of the criminal law.[37]

A second significant development took place in 2011, when North Carolina passed the Justice Reinvestment Act (“JRA”).[38] The JRA was part of a national criminal justice reform effort, which sought to “reduce prison populations and spending on corrections and then to reinvest the savings in community-based programs.”[39] The JRA did not repeal any crimes, but it diminished the severity of the state’s habitual felon law and made it more difficult to revoke offenders’ probation and send them to prison, among other changes.[40] The recent dip in prison population noted above may continue in part as a result of the JRA.

Finally, in 2013, North Carolina reclassified several dozen misdemeanors, either making them lower-level crimes, or in some cases, noncriminal infractions. Although not as sweeping as the 1985 reform, this reclassification initiative nonetheless included several very common offenses, such as writing worthless checks and driving without a license or without insurance.[41] As noted above, this reform was motivated at least in part by a desire to reduce appointed-counsel costs rather than by overcriminalization concerns, but nonetheless, the ultimate effect has been a reduction in the scope of the criminal law.[42]

Similar countertrends exist in other states.[43] In fact, one commentator has suggested that on balance, the states are moving towards less criminalization rather than more.[44] That does not appear to be so in North Carolina, but it is important to note that increasing criminalization is accompanied by, and partly offset by, occasional decriminalization.

  1. Assessing the Growth of the Criminal Law in North Carolina

The fact that North Carolina’s criminal law has expanded does not necessarily show that North Carolina is overcriminalized. Perhaps North Carolina was undercriminalized and growth in the criminal law was needed, or perhaps the new criminal laws are appropriate responses to new types of antisocial behavior.[45] This Part attempts to assess whether North Carolina is in fact overcriminalized. There is no single accepted test for whether a jurisdiction is overcriminalized, so this Part considers whether North Carolina has many laws on the books that are rarely applied; how North Carolina’s criminal code compares to other jurisdictions’ codes; trends in North Carolina’s incarceration rate compared to national data; and the ability of North Carolinians to understand and to comply with the law. Although each of these metrics is imperfect, together they show that North Carolina is overcriminalized; furthermore, they suggest that other states may be in the same boat.

  1. Unnecessary and Unused Laws

Criminal codes should contain only necessary laws. Unused, obsolete, and redundant provisions only make the law more difficult to understand and to apply. Unfortunately, North Carolina has many unnecessary and unused laws, and adds more each year.

  1. Old Laws

Some criminal laws were relevant at one time but have since become antiquated. Sometimes this phenomenon arises due to changes in morality.[46] For example, North Carolina law continues to make the “lascivious[] associat[ion]” of unmarried men and women a misdemeanor,[47] though the offense was not charged a single time in 2012.[48] A statute also forbids a man and a woman from “occupying the same bedroom in any hotel, public inn or boardinghouse for any immoral purpose.”[49] This offense was charged just once in 2012.[50] Similarly, North Carolina’s crime against nature statute remains in place,[51]

its text unchanged even after Lawrence v. Texas[52] rendered the law at least partially unconstitutional.[53]

In other instances, laws arise in response to the social conditions of a particular time or place and are of little continuing utility once those conditions have changed. For example, North Carolina law makes it a crime for certain executives of railroad companies to fail to provide an accounting to their successors.[54] Presumably that was a grave concern in 1870 when the statute was enacted,[55] but the need for a criminal provision seems to have receded, as the offense was not charged at all in 2012.[56] Likewise, the statute that criminalizes the temporary taking of horses, mules, and dogs, does not appear to respond to a vital contemporary concern.[57]

Of course, many old laws remain essential. But North Carolina, like other states, has several criminal laws that are unnecessary relics of a bygone era.[58]

  1. New Laws

It is not surprising that the criminal code contains antiquated provisions that are rarely employed. But one would expect new crimes to be enacted in response to current problems, and so to be charged regularly. If a criminal statute is enacted but rarely used, there is good reason to doubt whether the law was needed in the first place. As it turns out, North Carolina has many new laws that are rarely used.

In fact, data collected by the North Carolina Administrative Office of the Courts reveal that in North Carolina, most new crimes are effectively dead letters from the beginning.[59] Figure 5 looks at the frequency with which crimes created during the 2009 and 2010 legislative sessions were charged in 2012.[60]

 

 

As Figure 5 shows, 64% of the newly minted crimes were not charged even a single time,[61] and 73% of the crimes were either not charged at all, or were charged just once across the state. This strongly suggests that many unnecessary criminal laws are being enacted each year.[62] Among the uncharged crimes are releasing non-native venomous reptiles into the wild;[63] stealing or vandalizing a portable toilet;[64] failing to keep certain records regarding the disposal of sewage from boats;[65] [[65}} Id. § 77-128.verage citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws,” so “Congress has . . . softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses”). Although Ratzlaf and Cheek were decided on statutory grounds, the Court has repeatedly held in the vagueness context that due process requires fair notice. See, e.g., United States v. Williams, 553 U.S. 285, 304 (2008) (“A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited . . . .”); Gilmore v. Taylor, 508 U.S. 333, 358 (1993) (Blackmun, J., dissenting) (“People can conform their conduct to the dictates of the criminal law only if they can know what the criminal law has to say about their conduct. Proper warning is a constitutional imperative.”). Together, these cases at least raise the question of whether the proliferation of the criminal law could implicate due process.[[95]] Indeed, the increasing complexity of the criminal law has led some, including a former United States Attorney General, to argue that the courts should recognize a mistake of law defense.[96]

Unfortunately, there are no data about how informed North Carolinians are about the criminal law, so it is impossible to be sure whether North Carolina’s criminal law has passed the point of unreasonable complexity. In fact, there is a notable lack of empirical research on this issue nationally. The leading study is based on a small survey conducted in four states. It found that, even with respect to “important laws, concerning whether one has a duty to help a person in distress, report a known felon, or retreat rather than respond with deadly force when threatened . . . citizens showed no particular knowledge of the laws of their states.”[97] The picture of ignorance is consistent with another study of Americans’ overall knowledge base, which found that only 42% of Americans know that the crime of betraying one’s country is called treason.[98] Neither source attempts to explain why citizens are unaware of the law, so the contribution of overcriminalization, if any, is unclear. Much better research is needed in this area.[99]

For now, the most that can be said is that many North Carolina residents may be ignorant of much of the state’s criminal law, and that a simpler and more compact criminal code might be easier to remember and to follow. A better understood criminal code might also command greater respect.[100]

III. Explaining the Growth of the Criminal Law in North Carolina

This Article focuses on describing the growth of the criminal law in North Carolina and assessing whether that growth is the result of overcriminalization. Still, it is worth mentioning briefly some of the factors that likely have contributed to the growth of the criminal law in North Carolina and elsewhere. These factors have been examined closely by others[101] and will simply be summarized here.

Many voters want tough action taken against criminals. This is natural, as crime is a serious problem.[102] However, Americans believe violent crime to be much more common than it actually is,[103] meaning that they may erroneously view the criminal justice system as weak or ineffective. The news media contributes to this phenomenon by reporting on crime in a sensational manner that fuels the public’s concern about crime.[104]

Legislators are citizens and may share the same concerns about crime as other citizens. In addition, regardless of legislators’ personal beliefs, they need votes to keep their jobs, and thus want to meet their constituents’ demands for “tough on crime” legislation.[105] Voters’ interest in crime therefore gives legislators a strong incentive to enact new criminal laws. It is particularly difficult for legislators to resist making changes in response to highly publicized incidents with sympathetic victims, even if those incidents arise infrequently or are adequately addressed by current law.[106]

By contrast, legislators have little incentive to repeal or to revise antiquated or unnecessary laws. In some cases, such laws are rarely enforced and so generate little public outcry. In other instances, these laws address conduct that is morally repugnant to some voters, even if it is not properly viewed as criminal. For example, after Lawrence v. Texas,[107] it is clear that North Carolina’s crime against nature statute[108] is unconstitutional, at least as it applies to private, noncommercial conduct among consenting adults.[109] But two attempts to narrow the scope of the law have garnered little support and have died in committee.[110] Likewise, while Texas v. Johnson[111] held that laws against flag desecration violate the First Amendment,[112] North Carolina has retained its statute making it “unlawful for any person willfully . . . to cast contempt upon any flag of the United States or any flag of North Carolina by public acts of physical contact.”[113]

The most noteworthy aspect of this narrative is how intuitive it is. It is not necessary to invent a conspiracy theory to explain overcriminalization, nor is it necessary to view politicians or participants in the criminal justice system as power hungry or nefarious. Instead, overcriminalization likely results from people acting in good faith and in rational, and predictable ways. Unfortunately, that makes overcriminalization a difficult problem to address.

I. Reducing Overcriminalization

While the social and political forces that result in overcriminalization are deeply rooted, there are several available strategies for reducing overcriminalization or blunting its impact in North Carolina. This Part describes three possible checks on overcriminalization: prosecutorial discretion; an office dedicated to the repeal of unnecessary laws; and periodic review of little-used laws.

1. Prosecutorial Discretion

The most important existing check on the effect of overcriminalization is the discretion that prosecutors exercise regarding which crimes to prosecute vigorously, which crimes to prosecute with less enthusiasm, and which crimes not to pursue at all. For example, a prosecutor might be presented with evidence that a teenager sent an explicit picture of herself to her boyfriend. The prosecutor might conclude that the conduct meets the elements of a child pornography offense,[114] but determine that the matter is best left to the school system and to the families involved.[115]

 

This type of discretionary determination happens every day and is an important limit on the criminal law.[116] In fact, the frequent, judicious, and appropriate use of prosecutorial discretion may be one reason that overcriminalization has attracted little attention in North Carolina. However, it is not a panacea. It does not prevent the law from being more complicated than it needs to be and it leaves archaic laws on the books. For example, larceny of ginseng remains a felony in North Carolina,[117] even if prosecutions for the crime are rare. Additionally, relying on prosecutorial discretion to check overcriminalization risks the occasional abuse of that discretion and virtually ensures significant local variation regarding which laws are enforced and how vigorously.[118]

Furthermore, overcriminalization places unreasonable demands on prosecutors. Prosecutors already handle huge case volumes and have little time to become familiar with, much less prosecute violations of, the frequent additions to North Carolina’s criminal code.[119] Some scholars have argued that overcriminalization benefits prosecutors by giving them leverage during plea negotiations,[120] or have characterized overcriminalization as the result of mutual back-scratching between prosecutors and legislators.[121] That description unfairly impugns the prosecutors’ motives, suggesting that they are focused on tactical gain rather than public safety, and it also fails to recognize the extent to which overcriminalization can actually be a burden on prosecutors. In short, while prosecutorial discretion helps check overcriminalization, it is not a complete cure, and it comes at a cost.

  1. Office of the Repealer

North Carolina could strike more directly at overcriminalization by forming a permanent body charged with recommending criminal laws for repeal. The body could be created by the legislature or by the governor. There are several precedents for this. In Kansas, Governor Sam Brownback created an Office of the Repealer by executive order in January 2011.[122] It has already recommended fifty-one statutes or administrative regulations for repeal.[123] In 2013, the Tennessee legislature created a similar office within its legislative staff that will make recommendations for repeal annually.[124]

Even a temporary, rather than permanent, body could limit overcriminalization. For example, in 2001, Virginia tasked its crime commission with recommending criminal code changes.[125] In 2004, the state legislature endorsed the commission’s first recommendation by removing twelve little-used offenses from the code.[126] This approach is similar to the one that, in North Carolina, resulted in the reclassification of minor motor vehicle offenses as infractions, and the one that led to the passage of the Justice Reinvestment Act.[127]

  1. Scheduled Review of Little-Used Laws

Finally, the General Assembly could make a commitment to consider periodically whether there is a continued need for any criminal statute that sees little use. For example, it might agree to evaluate the necessity of any criminal statute that has not been charged more than ten times per year over the preceding four years. The Administrative Office of the Courts keeps charging data, so this would be easy to do.[128]

The General Assembly recently implemented a similar mechanism designed to reduce the proliferation of unnecessary regulations.[129] In the 2013 legislative session, it enacted a statute requiring relevant state agencies to review their administrative rules at least once every ten years, in order to identify unnecessary rules.[130] Rules not timely reviewed according to the procedure set forth in the statute automatically expire.[131]

Recommending such a review—or even conducting such a review—might fall within the very broad charge given to the North Carolina General Statutes Commission.[132] Alternatively, a joint committee of the two legislative chambers could be created to manage the review process, as the Administrative Procedure Oversight Committee oversees the administrative rule review process.[133] A variety of state agencies and other organizations—from the Administrative Office of the Courts to the North Carolina Bar Association to the School of Government—might be asked to play a role in identifying and evaluating candidates for repeal.[134]

Conclusion

A comparative evaluation of the states’ criminal codes ranked North Carolina’s code as only the forty-third most effective code in the United States.[135] Overcriminalization was one factor in that ranking, and overcriminalization is a problem for North Carolina. Our criminal code is large and growing rapidly. Many of its provisions, both old and new, are of little use. Some are even unconstitutional. This proliferation of criminal laws makes the law more difficult for citizens to comprehend, and more difficult for the courts to apply. Despite these harms, overcriminalization exists as a result of political pressures and a political process that produce new and more stringent laws easily, but that are slow to remove outdated or useless provisions. North Carolina is not unique in facing this problem, but fortunately has laid the groundwork for some possible solutions, including establishing an office charged with repealing unnecessary laws or conducting a scheduled review of rarely used provisions.

In North Carolina, as in other states, criminal laws accumulate easily and dissipate slowly. Like the old clothes and dusty exercise equipment that slowly fill our closets, basements, and attics, our criminal code is filling up with archaic and unnecessary laws. We need to find a way to clean house.

* © 2014 Jeff Welty.

** Associate Professor of Public Law and Government, School of Government, UNC–Chapel Hill. The author would like to thank research attorney Christopher Tyner and librarian Alex Hess at the School of Government, and former School of Government law clerk Samantha Surles, for their help with the research supporting this article. The School of Government is a policy-neutral, nonadvocacy resource for government officials. Although this Article is intended to be factual and dispassionate, it does contain some opinions and policy recommendations. Those are the author’s, in his individual capacity.