As the South Carolina legislature reconvenes, it ought to seriously rethink the state’s criminal laws. Six years ago, lawmakers passed a sentencing-reform bill, significantly cutting the state’s incarceration costs. That’s admirable, but cutting prison rolls only fixes the back end of the criminal justice system. South Carolina, like many other states and the federal government, has recently witnessed explosive growth in its criminal law, placing well-meaning individuals at risk of jail time for unknowing infractions.
South Carolina’s penal code is large, but many more crimes are scattered throughout the state’s broader statutory code... Since 2009, state lawmakers have created about 60 new crimes a year, 86% of which fall outside the penal code.
What we and other critics have called “overcriminalization” is the rapid growth and incomprehensibility of criminal laws and regulations. South Carolina’s penal code is large, but many more crimes are scattered throughout the state’s broader statutory code, in places people would not normally think to look when attempting to discern what can land them in prison. Since 2009, state lawmakers have created about 60 new crimes a year, 86 percent of which fall outside the penal code.
In trying to avoid prison in South Carolina, one could not merely look at the laws enacted by the Legislature. South Carolina’s laws contain many “catch-all” provisions that give unelected bureaucrats the effective authority to criminalize conduct through their own rules and regulations. The state’s agriculture, fish and wildlife, and public health codes, for example, are riddled with provisions criminalizing violations of any rules promulgated, orders issued or operational standards developed by various departments or commissions. In one case, state lawmakers actually incorporated federal law, essentially making it a state crime to violate certain wildlife regulations made by federal bureaucrats.
The growth of criminal law is particularly problematic in South Carolina because traditional intent requirements are increasingly absent from new criminal laws. In other words, you can find yourself in handcuffs for doing something that isn’t objectively wrong but nonetheless violates an obscure rule buried in a regulatory code most people probably don’t know exists, let alone have the time to read.
Having too many crimes on the books has serious consequences, both for those ensnared by them, and those forced to spend precious time and money trying to achieve compliance. Big corporations have legal compliance teams, but how is a small business owner supposed to navigate the rapidly growing, poorly organized body of obscure rules that is South Carolina’s criminal law? Overcriminalization is thus not only a threat to liberty but also a significant impediment for family farmers, and small business owners.
In South Carolina, outdoor enthusiasts are in particular danger. South Carolina’s fish and wildlife code contains more than 200 criminal statutes, only five of which require criminal intent. Among these crimes is “creating any noise which would result in annoyance to others” while in a wildlife management area. No one likes to be annoyed, but should accidentally getting on someone’s nerves earn you a criminal record simply because you’re on special land?
Serious thought should be given to pruning and reorganizing criminal laws and regulations, many of which are outmoded, duplicative and hard to find.
What should be done about South Carolina’s overcriminalization? First, serious thought should be given to pruning and reorganizing criminal laws and regulations, many of which are outmoded, duplicative and hard to find. (Several candidates immediately jump to mind, including laws prohibiting minors under the age of 18 from playing pinball, and forbidding fortune tellers from operating without a license.)
Second, state lawmakers should enact a “default” criminal intent requirement to ensure that people aren’t imprisoned for conduct that’s not intuitively criminal in nature. In December, Michigan became the 15th to enact such a law, and several more are being considered in other states, as well as in Congress. Such a rule would not prohibit the Legislature from criminalizing some conduct regardless of intent, but it would prevent courts from assuming the Legislature meant to do so when it said nothing.
Finally, the lawmakers should reconsider granting effective power to create new crimes to unelected officials. Regulators and boards too often are motivated to protect established businesses rather than address genuine public safety concerns. And, of course, they are unaccountable to the public.
In its 2010 omnibus sentencing reform, South Carolina lawmakers emerged as national leaders in rethinking criminal justice—and saved taxpayers millions in the process. As the Legislature reconvenes, it ought to think about how to better protect liberty and promote economic growth by addressing the state’s overcriminalization problem.
This piece originally appeared in Greenville News