A recent event hosted by the Libre Institute highlighted an issue that’s gaining support across the ideological spectrum: Reforms in the criminal-justice system that would clean up the legal code, not only reducing penalties for nonviolent offenses but also removing many crimes from the books.
“Each one of us is likely unwittingly committing up to three felonies a week,” said Libre Institute spokeswoman Marilinda Garcia, who noted that there are tens of thousands of laws on the books. The Libre Institute, a nonprofit organization that promotes economic freedom, limited government, property rights, and the rule of law with a focus on Hispanics, sponsored the panel on “overcriminalization” on July 16 at Carmen’s Cuban Café. About 50 people attended the bilingual event.
Overcriminalization is a topic that is gaining steam among some politicians and policy organizations. Heritage Foundation researchers describe overcriminalization as “the trend to use the criminal law rather than the civil law to solve every problem, to punish every mistake, and to compel compliance with regulatory objectives. Criminal law should be used only if a person intentionally flouts the law or engages in conduct that is morally blameworthy or dangerous.”
The effort to reduce the effects of overcriminalization includes sentencing reform, as displayed in North Carolina’s “justice reinvestment” program, along with efforts to get some laws taken off the books.
A 2014 report by the Council of State Governments Justice Center showed that North Carolina’s 2011 Justice Reinvestment Act resulted in a $48 million savings for the 2013-14 fiscal year alone, and contributed to the closure of 10 prisons.
However, criminal-justice reformers say more needs to be done to slow the increase in criminal offenses being enacted while taking outdated and unnecessary laws off the books.
“Over the years, especially at the state level, states have enacted more and more criminal offenses,” said Rafael Mangual, project manager for legal policy at the Manhattan Institute for Policy Research in New York City. He added that they weren’t necessarily high-level criminal offenses requiring long sentences. They’re mostly misdemeanors and low-level felonies, he said.
Nevertheless, these crimes can have “collateral consequences” for small business owners and family farmers who “don’t necessarily have the resources available to them to navigate the kind of minefield that the criminal law has become,” Mangual said.
“There’s an old adage that ignorance of the law is no excuse,” Mangual said. “That made more sense when the criminal law’s size was a lot more manageable for the average person.”
There are more than 300,000 criminal laws and rules at the federal level. “No one person could actually digest all that in a lifetime and keep all of that in mind,” Mangual said.
Mangual said the Manhattan Institute examined the criminal codes in a number of states, including North Carolina. The Tar Heel State’s “criminal code is 765 sections, which is very, very large,” Mangual said. “That’s 55 percent larger than Virginia’s and 38 percent larger than South Carolina’s.”
He said North Carolina added a net 34 crimes a year between 2008 and 2013.
Mangual said the Manhattan Institute has some recommendations for state legislatures to consider to help reduce overcriminalization. One is to enact a “default criminal intent” standard for people to be charged with a crime. That standard could include proving an offender knowingly violated the law, was reckless, or was negligent, he said.
The Manhattan Institute also recommends that the state create a bipartisan legislative task force to focus on overcriminalization. The state also should create a commission to comb through the statutes and regulatory code to look for laws that are outdated.
“Kansas has the office of the repealer,” an executive branch office that recommends regulations, laws, and executive orders for repeal, he said. Its recommendations can be forwarded by the governor to the legislature, which then votes to repeal or retain the measures.
Meanwhile, in 2014, Minnesota had an “unsession” of the legislature that did nothing but repeal laws. Mangual added that while “1,175 crimes in 2014 were repealed, the sky hasn’t fallen in Minnesota.”
At the Libre Institute gathering, Garcia said that overcriminalization takes an especially heavy toll on people who are less well-off financially because they are unable to afford adequate legal assistance or even come up with the money to post bail.
Angela Hight, criminal justice policy analyst at The Civitas Institute, echoed the suggestion that many laws need to be repealed.
“We need to take some old laws off the books,” Hight said, adding that incarceration should be reserved primarily for violent offenses and for people who pose genuine threats to others.
“We should be incarcerating those people we’re afraid of, not those we’re mad at,” said Debbie Walsh, a board member of a number of prison ministries. “Is anybody afraid of Martha Stewart? No, we’re mad at her.”
Ivette Diaz, the Libre Institute’s head of family policy, said that while the organization fights for criminal-justice reforms, families need to take responsibility for their own actions.
Garcia said that the effort to reduce overcriminalization is part of the Libre Institute’s mission. “Our motto is unlimited opportunity and limited government,” Garcia said. We want government limited because we want more opportunity.”