Errors Should Not Be Crimes | Eastern North Carolina Now

    Publisher's note: This article appeared on John Hood's daily column in the Carolina Journal, which, because of Author / Publisher Hood, is linked to the John Locke Foundation.

    RALEIGH     North Carolina has a serious problem. Adopting a default mens rea provision would go a long way to solving it.

    Don't recognize the phrase mens rea? Hey, you're hardly alone. I studied neither Latin nor law in my school days, so someone had to tell me that the term comes from a longer phrase - actus reus non facit reum nisi mens sit rea - which translates as "the act is not culpable unless the mind is guilty." The idea, which has its roots in English common law, is that proving someone did something wrong is not enough to establish that a crime was committed. The wrongdoer has to form the intention to do wrong. He has to have a mens rea, a "guilty mind."

    This distinction is commonplace in our everyday experience. We all know that there is a difference between breaking your friend's favorite lamp because you accidently bump into it while chasing the dog and breaking your friend's favorite lamp with a baseball bat because you are mad at her.

    For the most part, law codes in North Carolina and other states recognize this distinction. Making an understandable but tragic mistake that leads to the death of another person is not treated the same as premeditated murder. But there are some cases, known as strict liability, in which the law treats a harmful act as a crime even if the actor had no criminal intent - or even no knowledge that the act in question was against the law.

    In recent years, federal and state policymakers have created far more of these strict-liability crimes than there used to be. The practice is particularly common when it comes to health and safety laws. Unfortunately, the practice also appears to be particularly common here in North Carolina. We have more crimes on the books than do Georgia, Tennessee, South Carolina, or Virginia.

    Last year, the Manhattan Institute and the John Locke Foundation teamed up to define the scope of the problem and propose remedies to address it. A key recommendation was for the General Assembly to create a bipartisan task force to conduct hearings and establish guidelines for the creation of new criminal offenses, as well as an independent commission to review North Carolina's current criminal statutes with the objective of consolidating, clarifying, and optimizing them. In Kansas, a similar agency is called the Office of the Repealer. Has a nice ring to it.

    In the meantime, lawmakers should make a mens rea standard the default in North Carolina. In other words, unless otherwise specified in law, a wrongful or harmful act would not be treated as a crime if there was no evidence of criminal intent.

    "Overcriminalization places individuals and small businesses in constant legal jeopardy and erodes confidence in the rule of law," says Jon Guze, JLF's director of legal studies. "It wastes scarce law-enforcement resources that could otherwise be devoted to presenting and punishing serious crimes against persons and property."

    Keep in mind that reducing the number of acts we treat as criminal in North Carolina doesn't necessarily mean that fewer acts will be illegal. By all means, the state should enact and enforce laws that protect public health and safety. Violations should earn the perpetrators fines and other penalties commensurate with the amount of harm or risk. These would be civil infractions and penalties, however, not crimes and punishments.

    Unless you are an anarchist, you think government should exist to protect people's rights and ensure the provision of certain public goods that cannot be provided through voluntary means. That means using force - using taxes, regulations, sanctions, and punishments. There's no sugarcoating what government is.

    Still, I think you'll agree with me that government should to use the least amount of force possible to accomplish its legitimate ends. Making a crime out of what should be an infraction does not meet this test. It also costs a great deal of tax money and imposes tremendous cost on the purported "criminals." North Carolina can and should do better.