Critics Argue Overcriminalization in South Carolina

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Though “ignorance of the law is no excuse” when it comes to criminal defense matters, a new report suggests that South Carolina is working hard to set its citizens up to commit crimes they have no real reason to know about.

The report by the Manhattan Institute explains that South Carolina is passing obscure laws hidden in places other than the criminal code and then, in effect, holding violators liable even if they did not intend the forbidden action. “Overcriminalization” in the context of the report refers to the erosion of the criminal-intent requirement, rather than strictly the creation of new criminal laws.

The report was the third state analysis in a series by the organization. In the end, it urges the South Carolina state legislature to create a bipartisan task force and a commission to review the criminal law, and to protect citizens from accidental crimes by adopting a default mental state requirement for courts to apply where a statute is silent.

SC criminal laws grow but the criminal code does not

As outlined in the report, the South Carolina criminal code is smaller than that of neighboring states but most of its crimes are found in parts other than the penal code. The list of crimes is growing continually, with about 60 new crimes added each year. Most of the crimes added over the last 6 years – 86% – have been found in sections of the law other than the penal code.

The additional crimes are not targeting major offences. Ninety-one percent are misdemeanors. Many are duplicative of crimes already on the record or unnecessary. They are ultimately the result of too many cooks in the kitchen; while some of the laws are written by the legislature, others are added in by administrative agencies and the result is a mishmash of inconsistently-drafted laws scattered across different sections of the code.

No criminal intent necessary

A crime has traditionally required two things: an action and an intent to act. The intent to act – the mens rea requirement– has often been stated in the statute, such as the offender must “knowingly” or “intentionally” violate the section. Another byproduct of allowing non-legislative administrative agencies to draft legislation is that most of the new laws do not tell citizens or courts what mental state is required for a criminal violation.

The inconsistent lawmaking scheme has created absurd results. For example, a law prohibiting types of agricultural advertising does not require any sort of knowledge or intent, but violations of pesticide controls require that the state show the violator’s willfulness.

The unfortunate consequence of hiding obscure laws throughout the code and then omitting a requirement of criminal intent is that well-meaning citizens cannot avoid breaking them.

South Carolina legislators rely on prosecution

An interesting – and alarming – point made in the Manhattan Institute report is that legislators feel comfortable passing overly broad criminal prohibitions knowing that the prosecutors will use their discretion to decide whether to prosecute. This puts into perspective how crucial it is to consult with a qualified South Carolina defense lawyer.

If you are facing criminal charges, speak with an experienced South Carolina criminal defense lawyer who can explain your rights.

Resources:

  1. Manhattan Institute, Overcriminalizing The Palmetto State, https://www.manhattan-institute.org/sites/default/files/ib-JC-0116.pdf
  2. Greenville Online, ‘Overcriminalization’ a problem in SC, https://www.greenvilleonline.com/story/opinion/contributors/2016/01/16/overcriminalization-problem-sc/78701952/

Warning: This Does Not Constitute Legal Advice. Do not rely on the accuracy of this information because laws are subject to change. You are strongly encouraged to seek the advice of an attorney in any legal matter. If you take action in your case without an attorney, it may negatively affect your legal rights.

Disclaimer: This information does not create an attorney-client relationship. The information provided in this document is not legal advice, cannot be cited as legal authority, and cannot replace the advice of an attorney in South Carolina.

MICHAEL R. JEFFCOAT

PRESIDENT

Michael R. Jeffcoat is a criminal defense attorney in South Carolina with over 2 decades of experience, our aggressive criminal defense legal team can help you with misdemeanor and felony offenses. Mr. Jeffcoat strives to keep all his clients informed at all stages of their case.

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