In North Carolina in 2011, Steven Pruner was sentenced to 45 days in the Durham County Sheriff’s custody for selling hot dogs from his food cart outside Duke Hospital without a proper permit.
In Michigan in 2009, Lisa Snyder faced prosecution until the state legislature intervened on her behalf. Her alleged crime? The state claimed that in assisting her neighbor’s children board the school bus in front of her house each morning, free of charge, Ms. Snyder was illegally operating a day-care center without a license.
Such examples typify “overcriminalization” in America. The growth of criminal law has left ordinary individuals and small businesses vulnerable to prosecution and potential jail time for violating government regulations. The U.S. Code has more than 4,000 federal statutory crimes on the books, and scholars estimate that more than 300,000 additional crimes have been created through federal regulation. Diverse groups from the conservative Heritage Foundation to the liberal American Civil Liberties Union have decried this explosion in federal criminal law.
But until recently, little effort has been made to quantify the reach of criminal law at the state level, where most prosecutions occur. In the past year, we at the Manhattan Institute’s Center for Legal Policy have worked to answer that question. Last spring, we released a report, building upon the research of UNC government professor Jeff Welty, which looked at overcriminalization in North Carolina. This week, we released a report, co-authored with Michael Reitz of Michigan’s Mackinac Center, examining the scope of criminal law in the Wolverine State.
The early verdict? States have an overcriminalization problem, too.
Michigan’s criminal code contains 908 sections and North Carolina’s 765. By comparison, there are only 108 sections in the Model Penal Code, a well-regarded exemplar of criminal law developed in 1962 by the American Law Institute, an independent group of lawyers, judges and academics. These two states also have significantly larger codes than their neighbors in the Great Lakes and Upper South, which suggests that even though overcriminalization appears to be a national trend, it is more prevalent in some states than in others.
The criminal codes themselves just scratch the surface of the problem, as most states have been creating crimes outside the penal law and adding new crimes to the books at an alarming rate. Michigan, for example, has at least 3,102 statutory crimes, and 48 percent of its felonies and 76 percent of its misdemeanors are not in the state’s penal code. In 2012 and 2013, Michigan’s legislature added 116 new crimes to its books, including 51 felonies, and North Carolina’s added 67 new crimes, including 38 felonies.
As is the case with federal law, the crimes enacted by the legislature do not begin to tell the whole story, as state law often delegates criminal rulemaking to unelected regulators. In both North Carolina and Michigan, laws on agriculture, the environment, occupational safety and public health are riddled with “catch-all” provisions that make it a crime to violate any of the volumes of rules promulgated by state agencies, local boards, and even private professional bodies.
Because states like North Carolina and Michigan do not generally require a showing of criminal intent to commit a crime, and because it’s virtually impossible for anyone except large corporations with armies of lawyers to know and understand such an expansive criminal law, small entrepreneurs like Steven Pruner and friendly neighbors like Lisa Snyder are in constant jeopardy.
If legislators in these states want to protect such citizens’ liberty and stop discouraging small business investment that is the lifeblood of the economy, they should take steps to rectify the overcriminalization problem.
James R. Copland and Isaac Gorodetski are the director and deputy director, respectively, of the Manhattan Institute’s Center for Legal Policy and co-authors of a new report, Overcriminalizing the Wolverine State: A Primer and Possible Reforms for Michigan. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
