In January 2016, the Manhattan Institute published a paper, Overcriminalizing the Palmetto State: A Primer and Possible Reforms for South Carolina. It showed that South Carolina had a criminal code that contained 557 sections—more than six times as many as in the Model Penal Code. During 2009–14, South Carolina lawmakers created more than 60 new crimes annually, of which 86% fell outside the state’s criminal code. Many of these new crimes did not explicitly require the state to make a showing of criminal intent (mens rea) on the part of the accused.
In 2015–16, South Carolina lawmakers created 49 new criminal offenses: nine in 2015 and 40 in 2016. Although the rate of new crime creation slowed, compared with that in the period studied in the Manhattan Institute’s previous paper, more felonies were created in the last legislative session than in any of the three previous legislative sessions studied.
In January 2017, a bill was introduced in the South Carolina Senate that would repeal a number of outmoded and outdated criminal laws—including some of those highlighted in the Manhattan Institute’s 2016 paper. But to tackle its overcriminalization problem more systematically:
- The Palmetto State should consider larger-scale repeal efforts, such as Minnesota’s 2014 “unsession,” which led to the striking of 1,175 crimes from the statute books.
- The state might also wish to create a “recodification commission” to streamline and better organize all crimes in the state, including those inside and outside its criminal code—a reform currently under consideration in neighboring North Carolina.
- Finally, South Carolina lawmakers should give serious consideration to adopting a default criminal-intent provision—as has been done by more than 15 states—to offer a layer of protection to those who might run afoul of the state’s many criminally enforceable rules and regulations that relate to conduct that is not intuitively criminal in nature.
James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute.
Rafael A. Mangual is the deputy director for legal policy at the Manhattan Institute.