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Carolina Journal Radio No. 722: Congress wrestles with Obamacare replacement

Carolina Journal Radio / Donna Martinez and Mitch Kokai
The Truth Network Radio
March 20, 2017 12:00 am

Carolina Journal Radio No. 722: Congress wrestles with Obamacare replacement

Carolina Journal Radio / Donna Martinez and Mitch Kokai

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March 20, 2017 12:00 am

Efforts to repeal and replace Obamacare took a recent step forward with a proposal from U.S. House Republicans. But the GOP plan has generated mixed reviews, with some conservatives labeling the proposal “Obamacare Lite.” Katherine Restrepo, the John Locke Foundation’s director of health care policy, analyzes the proposal and offers her own ideas about the best way to approach health care reform. The N.C. Constitution is generating plenty of headlines these days, with near-constant skirmishes pitting a new Democratic governor and the Republican-led General Assembly. John Dinan, professor in the Department of Politics and International Affairs at Wake Forest University, discusses the disputes. Dinan explains how the state constitution and the government’s third branch, the judiciary, will help resolve the political conflicts. North Carolina’s junior U.S. senator has concerns about the process the military uses to replace outdated weapons. During a recent confirmation hearing, Thom Tillis used the example of one Air Force firearm to explain why he believes the U.S. Department of Defense needs to reform its weapon replacement process. A November 2016 attack at Ohio State University, which hospitalized 11 people, has promoted a renewed interest among N.C. lawmakers in college campus safety issues. A legislative oversight group listened recently to a presentation from Brent Herron, the UNC system’s associate vice president of campus safety and emergency operations. You’ll hear highlights from Herron’s remarks, along with lawmakers’ reactions. It’s entirely possible for a North Carolinian to be charged, prosecuted, and convicted of a crime, even if he had no reason to believe his conduct was wrong. That’s a problem. It gets to the erosion of a core legal principle known as “mens rea,” the idea that a crime involves both a wrongful act and a “vicious will” or “culpable mind.” Jon Guze, the John Locke Foundation’s director of legal studies, explains why North Carolina ought to take steps to restore the “mens rea” principle in the state criminal code.

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From chair to current attack from the largest city to the smallest and from the statehouse into the schoolhouse Carolina Journal radio your weekly news magazine discussing North Carolina's most of public policy events and issues welcome to Carolina Journal radio why Michiko got during the next hour, Donna Martinez and I will explore some major issues affecting our state. The governor Roy Cooper and the Republican-led Gen. assembly had been waging a political turf war in North Carolina will chat with one expert to learn what the state constitution has to say about that series of battles North Carolina's junior US Sen. has concerns about the way the military replaces basic weapons, even simple handguns. Learn why some state lawmakers want to ensure that the University of North Carolina is prepared for the types of large-scale violence seen on other college campuses across the country will hear their remarks. Plus, you learn why something called men's radio is an important protection for innocent people in North Carolina and you learn why it needs to be strengthened, those topics are just ahead. First, Donna Martinez joins us with the Carolina Journal headline US House Speaker Paul Ryan and Republican congressional leaders have now released the first component of their plan to repeal and replace Obama care among those analysts pouring over the details is the John Locke foundation's health care expert Catherine Restrepo for months now.

Catherine has been writing about the principles that a repeal and replacement plan should be based on she's here now to tell us if the new document from House Republicans. Does any of that at all. Catherine, welcome to the program. Thank you. Your principles have always been consumer choice, more competition free up the marketplace give us a grade on this plan from Paul Ryan yeah overall it Obama care light mean there still key provisions in Obama care today as there would be under this new so-called repeal and replace plan. I'm over. I probably given us the yeah average.

Let's tackle that's that's good news is that it has to be politically feasible and and there is a divide amongst Republican though we can talk about two let's talk about some of the major components that most people are familiar with in terms of Obama care, so let's compare Obama care what the plan is for Saul of the mandate right now under Obama care is that every person must purchase government approved health insurance or pay a penalty right yes under Obama care you due under this plan the American healthcare act, you would not there would be no penalty so that no tax progress yes is progress okay what about pre-existing conditions.

Everybody's concerned about that. What if you're sick and then you have to get new health insurance under Obama care. You cannot be excluded for a pre-existing condition right and under this plan, you still cannot be excluded. However, there is potential where this can be sort of figured out in a more innovative way. People with pre-existing conditions would be sorted out or taken out of the individual health insurance market into and they will could get coverage plans through a high risk bullets federally funded so that's what in the logs called more innovative risk pools or innovative funding for states to use at on their own and this in a way allows the rest of the market the individual market to be for insurance companies to be innovative or offer more catastrophic plans or different types of healthcare plans that are more affordable for more people because you won't have those high risk enrollees in the individual market they can be that they will be in a separate pool where they'll have subsidized plans for themselves. It sounds like there's a little bit more choice there. Yes, yes, there is no man, especially with the fact that insurance companies under this new plan compared to Obama care on they with the way they price their premiums based on your age right now under Obama care.

An older person, their premium can be more than three times the amount of younger person.

So what that ends up happening is that younger people are paying more for older people's premiums to subs to offset the cost so so their premiums aren't superhigh.

So with the new plan that would be more flexible for insurance companies. It could go back to a 5 to 1 rating ratio. Speaking of younger people.

One provision of Obama care is that to folks who are up to 26 years old could continue to be on their parents insurance and plan what about the Paul Ryan proposal that keeps that in tact as well. So a lot of people get a like those things. So a few good things in there for folks who want more competition and choice. Still, some other things in Denver to say you're kind of alternative I mean especially when you look at why healthcare costs are so are so high, the way they are mean does it really solve the problem of the structures. The way the healthcare system is structured now and when you look at this reconciliation bill. This repeal bill on it. Really, it makes changes to the way people supply healthcare insurance companies, hospitals, I mean how out more of a macro level but what I'm waiting for is for the next bill that will be a part of this process. The entire repeal and replace process that really looks at more patient reform aspects where you can mean under the current bill you have paid people can contribute more into their health savings account health savings account is the bedrock of consumer driven healthcare.

More consumer control patient control over their healthcare decisions.

But I'm looking for more of that in the following component of fault that comes along now. Right now were also familiar with the word subsidy when it comes to lung mama care and some people are given subsidies based on a sliding scale of their income. Yet in order to purchase health insurance through Obama care what does the Paul Ryan plan new are there subsidies there are subsidies and it would be in the form of refundable tax credits so it's a subsidy because it's it's not a subsidy under Obama care that goes directly to the insurance company and depending on your income you can receive a subsidy which will offset the cost of your health plan. Under this plan.

The good thing about these refundable tax credits is that it it's in the hands directly of the consumer so they can take that with them. They can shop around for plans. They know how much they're getting used to offset the cost of health insurance. However, the amounts and there tied to age rather than older. Third, more so tied to age. So if you're 30, you will get 2000 and $2000 tax credit.

Regardless of your income, it starts to figure depending on your income. These tax credit amounts phase out but if you're making up to $75,000 near 30 years old, you can receive a $2000 tax credit to purchase health insurance. So I I have. I take issue at that mean we should not be subsidizing people who do not need subsidies to purchase health insurance is not your biggest concern with this sum at this point in keeping in mind we know that this is a multi step process in which only seen the first component of the whole process of repealing and replacing, but it sounds like you have some fundamental issues with this right and I think that goes back to I mean I do I like the idea of the simplicity of the age-based tax credit, but it still leaves people out. I mean you can be low income, 30 years old receiving $2000. They have a lot of health health issues mean that $2000. That's mean, what is that mean it depends and depends on the regulations on the insurance side of things, and as we all know regulations drive up the cost of premium so that really all depends. They have to go there's always moving parts that have to work together on. I really think that you know at the bottom of the bottom. At the end of the day you have to think about how can we improve access to healthcare and that means that patients need to be in control of their healthcare spending. Because patients right now aren't the true customers of healthcare. In reality, insurance companies are because they're the ones buying products and services from hospitals and other medical device companies.

Other suppliers for that policyholder for their benefits package that I don't know what anything costs when I go to the doctor let you know exactly unless you know it's a co-pay or your coinsurance.

You know you have to pay X percentage of what this bill is to see specialists or if you get a procedure done. If you're on Medicare. Even but if it is there more.

There has to be more price transparency and larger health things account. In my opinion, for there to be actual competitive market for people make choices themselves is how can we even try to be consumers of a product and if you go into a grocery store and you take a look at the meat counter you can decide. Do you want the cheaper hamburger or do you want to buy a really expensive steak and you get to choice and the prices are right there yeah what you do healthcare. Is that what exactly and the other thing that sort of is ignored in this repeal and replace proposal is that there is the employer-sponsored health insurance is not reformed in any way mean for years, ever since World War II employers have been offering their workers tax-free healthcare benefits as though there is a distortion of the market to that, compared to someone who doesn't have employer-sponsored health insurance and that's another reason why there's lack of transparency in healthcare because as an employee. Here I mean I don't know my health insurance premium is I don't know how much things cost less. It's a co-pay. But in reality I really don't know what the true cost of healthcare is and if you had more you had larger health savings accounts where employers can contribute mortgage for their employees if they want. There's more choice involved in more robust market we been talking with Catherine Restrepo about this latest proposal from US House Speaker Paul Ryan, and other congressional leaders.

You can read all of Katherine's workforce at John.I think you say with as much more Carolina radio to come in just a moment government plays a key role in your life affecting your paycheck the way you educate your kids the way you do business. How can you tell if government is doing a good job making the right choices. Spending tax dollars wisely. Carolina journal.com tackles those questions every day. The John Locke foundation publishes Carolina journal imprint each month and on the web each day@carolinajournal.com you'll find exclusive investigative reports on topics. No one else is covering what else a rundown of the best new stories, editorials and opinion columns in North Carolina.

John Hood's daily Journal new stories and important public events@carolinajournal.tv and the voices of the newsmakers themselves at Carolina journal radio and print on the air and on the web. You can find the information you need@carolinajournal.com will go back to Carolina journal radio amateur coca North Carolina government has seen a recent theory of activity linked to the state constitution and the separation of powers among the governor, the Gen. assembly in the courts. One of the people was watch these issues with great interest, is John Dinan, professor in the Department of politics and international affairs at Wake Forest University. Thanks for joining us good to be here so I would imagine that to before 2017.

Not that many people in North Carolina were really paying a whole lot of attention to the Constitution what it says about who controls what. Who has the most power and state government but this is really been in the headlines day after day after day that you present in our office when I go talk to groups particular state constitutions.

I asked for a member of the group how many of you a chance to look at your state constitution reader state constitution.

Not surprising those numbers usually pretty low, but I'm gathering that is asked for question 2017. There should be some numbers small hands or can be raised in the audience of people can have a reason to look at their state constitution, precisely because we now have a Republican-controlled legislature and a Democratic-controlled governor and those things just set up for conflicts and maneuvers. Conflicts will be based on constitutional principles and wealth can't be resolved in court to interpret constitutional provisions for those who haven't really followed this closely or don't remember much from from their civics classes. The Constitution really does spell out, doesn't it.

Who controls what and who has the most power motions are verified with the U.S. Constitution and we we received the general pattern of state constitutions really follow. In some ways the main provisions of the U.S. Constitution that there's a Bill of Rights.

There are a provision setting out the peers who are you elect legislature or church along the governor servicers along Rio Supreme Court justice was served and there's a few policy provisions was the one thing is a little different state constitutions of federal constitutional federal positions. Very few electrical policy provisions and find a few more of those in state constitution about someone in the north, constitution of the woods in California or Colorado somebody's others, but other than that though state constitution serve some of the same purposes as the federal Constitution does of organizing the government limiting power and securing rights. Throughout the history of this state. When you look at the legislature versus the governor versus the courts for years and years and years. The legislature really has been the dominant branch as in North Carolina and his various indications of that one is for the for the first half century, the legislature selected the governor that was not unusual for American studies but but it wasn't till the 1830s was actually the governor was elected by the people. The other thing, and this is the most striking the north, government did not have the power to veto legislation until 1996 was granted that was a number of decades after every single other state in the country had granted it got there governor to veto power is the north, Gov. for last 20 years. Only his exercise the veto power and still X was known as the line item veto power that is the ability to veto particular items and bills will count as one of only six states that the project governor of the power I could go on and provide other examples but these are just illustrations of the way in which the legislature is clearly been the dominant branch of North Carolina that set out in the Constitution, and this illustrated a number of ways. We're speaking with Prof. John Dinan of Wake Forest University. Fast forwarding now to the present.

It looks as if after the election of Roy Cooper as governor in November. Many members of the Gen. assembly and their top advisers took a look at the state constitution to see if there were ways that they could get the legislature even more power in this in this battle between the two branches that right is right and there's one that got a lot of high-profile attention, but never came to fruition and that is the north, constitution does not set a fixed number Supreme Court justices is just so happens that there seven Supreme Court justices now breakfast because Susan is quite explicit.

But if the legislature so chooses. You could raise that number two is much as gnawing, and to the immediate aftermath of the November to the six elections was some discussion about whether or not the North College look toward exercises, social power, it ultimately decided not to do that but it did take a number of other steps in a December 2016 special session. Those included in one case exercising powers that always been in the state constitution but is laid dormant and leading example that is the Norcal state constitutions quite explicit that the governor shout, with the advice and consent of the Senate make appointments unless these forms are provided for the Constitution. As for the cup that the Secretary of State the Bears cocounsel state offices and that had not actually been exercised by previous legislators in the legislature in December 2000 16 that exercise my power to start requiring that the governor shall receive advice and consent of his cabinet appointment as were speaking, that whole issue of the cabinet appointments is still in flux and the courts have not ruled on this but this is good to be an interesting debate about whether the Constitution as it's written will end up holding for government and winning out in the final determination things or whether Roy Cooper can win the day by saying, look, this is never happened before. This would be such a such a departure from our past that this is just political gamesmanship, and the court should throw it out there.

There are several different types of of of matters that are becoming before the court stores on the one hand this matter concerning confirmation or confirmation of gubernatorial cabinet appointments but is about as clear as one gets in, in terms of constitutional Texas that is permitting that to be done there, although some other conflicts with two other conflicts. One is concerning the relative powers of the superintendent of schools verse of the state Board of Education. The second conflict concerning how many people will there be on the state and local election boards and will be governor's party still have the advantage as parties always have the advantage in the past, or will there be an even distribution of four members on the state election board of the governor's party and for all the power party out of power.

Those other measures as concern comes as an election boards and concerning the state superintendent spell relative to the state election board. Those are not explicit in the Constitution.

Put another way, there's a lot of interpretation that can be offered but exactly what is the power of the governor here was the power legislature that would be distinguished though from a case concerning the ability of the Senate to require confirmation of gubernatorial cabinet pointers, which is quite explicit in the text of the Constitution of this permitted that would be distinguished from some the other cases where one can have arguments on both sides and all this comes down to to take things to come. The next point is is that how should we interpret the state Supreme Court decision issued in January 2016 the McCorvey burger decision and aptly named is not quite a Bush record type of name, but it's about as close as we get an North Carolina McCorvey burger which is involved of a particular case of could, the legislature set up a commission executive commission and then could they appoint a majority of the members of the commission and this was not explicitly resolved by the Constitution but by a suit decision by the student report on one dissenting justice.

The court decided that the background principles of separation of powers gave enough ability to the governor that he must be able to carry out executive duties in this particular respect the legislature had taken away and transgressed on the governor's executive power.

Organist seen a number cases in 2017 is how to interpret those provisions that were given a McCorvey burger Gen. 2006 decision to these other cases, a lot will rest on how the court reach that 2016 decision time is running very short but you think one upside of all of these debates is that more people will pay attention to the Constitution and its role in North Carolina government. I will oftentimes raise the flag bearers of efforts to try to cut away the flexor look state constitutions. They don't get anywhere near the attention of the U.S. Constitution does. And yet there are important their own rights.

They grant right sometimes that are in addition to the rights which are granted under the U.S. Constitution. Their core set up all kinds of institutions that are different from the U.S. Constitution. So if one consequence of some of his recent court decision is to turn people in the interest people in the state constitution that would be a good thing that is the voice of John Dinan Prof. in the Department of politics and international affairs at wake forest University. Thanks much going to be here on Carolina journal radio.

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Support the John Locke foundation. Welcome back to Carolina journal radio why Michiko guy, North Carolina's junior US Sen. Tom Tillis is raising concerns about the long drawn out process of replacing military equipment. Tillis carries a prop with it's the official request for proposals for what's called the next generation handgun. It's almost 700 pages now and want to talk a little bit about why I think this is making our men and women on the battlefield.

Less lethal, less prepared, less capable than they should be. When you start a program in the Air Force in 2008 and you decide with the OD that it should be the next generation handgun venue last from 2008 to 2017 transpire, you create a nearly 700 page RFP and we haven't even down selected the supplier ship and were supposed to replace the last generation handguns by 2020. Frankly, I think we should be replacing him sooner than that. If it makes our soldiers safer and more lethal on the battlefield. This is a great testament to what's wrong with defense acquisition and this is not about count beans this about saving lives is about killing the enemy. This is what we gotta fix so I'm not going to get into the details, except to say here's a mentality of the dealnews guide affixed to what I myself get on one of the exact number that my staff tell me what the exact page goes a 690 pages now interestingly enough, they'll probably come back and say well it's only 340 because you printed out and single on single page, not double-sided because they already came back and said that there's only 39 pages of technical specs. Well, if there's 39 pages of technical specs. What is all this other garbage in this document, because that's the stuff that's preventing us from getting a more lethal, more reliable, more effective weapon on the battlefield. I want to keep on pounding on this thing. I could not possibly imagine what your capabilities you bring in terms of recommending guys always need to fight wars and take the fight to the enemy on the battlefield, but I do know this, and I do know that the business of the DOD has to change entities to start with this kind of stuff. I just want to keep on pounding the summer bring a prop here so well get a right 680 pages seven, nine years and were not even a down selection so it's 10 years plus a decade for a postal I can break down and put together my 40 caliber pistol pretty easily with a blindfold on.

Another words, the relatively simple devices. I know that we have special applications for special operations, etc. that can be dealt with by this one-size-fits-all. It's okay to go nine or 10 years to get a new lethal weapon has to stop. That's North Carolina Sen. Tom Tillis, recent concerns about the time and money needed to replace the basic US military handgun will return with more Carolina journal radio. Are you tired of fake news. Well you won't find it here at Carolina journal. We don't make things happen and we don't presume or assign motives. There's no simpler way to put it then that were proud to say that honest, factual, rigorous journalism is the Carolina journal way our reporting team is focused on accountability in government and policymaking.

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Welcome back to Carolina journal radio why Michiko guy, a 2016 attack at Ohio State University turned a spotlight on college campus safety is at issue, familiar to the University of North Carolina, you would see associate VP Brent Herron reminded lawmakers of the state's recent history, 2006 individual by the name of Tahari Lazar drove her vehicle into the pit of UC Chapel Hill campus, injuring nine. He was subsequently arrested. Charges currently doing a 33 year sentence for two counts of attempted murder September 2013 North, Central, police officers encountered individual or campus that was wanted by the Durham PD for armed robbery. One approach the individual he opened fire on down the gunfire exchange. He was subsequently shot and killed by the campus police officers since UNC campuses have made preparations AS they have an active shooter plan.

We do have multiple ways of notification we are required by the clear that this would we use our notification systems on a very regular basis all or campus police officers go through exact same training as a municipal Walters blue Israelites rapid deployment training a lot was written about Ohio State trying to use a sexing training. They do shots fired or or homeland security run hot flight of the two programs were pretty much teach our students, faculty, staff, three premises are if you can, Ron Ron. If you can't can't run hot. We tell people what they should do if I need to barricade themselves in the room and quite frankly the one that I think was Empress little bit in the writings after Ohio State was the flight parts we have to teach people that you can't be a llama somebody comes in the room so motives a life-and-death situation you have to fight flight like this the last thing left to do members of the legislature's emergency management oversight committee had questions about UNC's plans.

Sen. Norman Sanders briefly.

Tillis most effective way or are just basically how you communicate threats to your students into your phone mobilize.

Quite frankly, but the if a student comes to our attention and we feel like that student could be doing threat to themselves or whatever if it's an imminent threat, we feel like some M3 idea and a person that could be on campus will garner whatever we wish some emerging notification and that's down through text messaging, emails. You know how dammit we are required to do that clearly. But we also do it the right way. If it's an individual that is going to our attention and we don't like is an imminent danger that point time and we will bring together camps, threat assessment teams which are made up of various groups in a sort of up to that team to make a decision to walk to and how the government deal with it to include involuntary evaluation. If that's the case, which we have done before, to a voluntary withdrawal on the campus.

If the individual threatening sales and monitoring. As a result of afterwards. Threat assessment teams have some type of case management with state representative Michael speciality had a question about guns on public college campuses. You know what the general will of the general feeling is towards maybe for staff, faculty can conceal on campus walking tell you what we will record couple years ago when this law was passed allowing weapons on a car locked in the glove compartment, myself included with the 60 police chiefs. We basically came in. Our stance was that we didn't feel like there was a need to have additional weapons on campus and primarily representatives was a safety issue of if there was a shooter on campus are major concern is if we responded to an individual that may have gone we don't know who that person is now we have two or three people on our campus with guns that might be good people there encountered by police officers and they don't obey the police officer's commands word somebody innocent individual could be harmed that in all honest, I think that was one of her major concerns and I think that's the premise across the United States.

With most sheets replace mostly so that answer prompted a response from Republican representative Larry Pittman understand your concern think you are sincere in this general concern, but you did say something about one component response being fight right is hard to fight personal to do if you don't have one and I just believe Francis Sandy Hook elementary that breakpoints will charge that guy was shot down if she could've stood still and taking careful aim. She could take him out and up believe that anyone who qualifies to have conceal.

Should be allowed to carry just for that reason because by the time we get there. A lot of times it's too late. Somebody could've already stopped again might be. Unfortunately somebody who is legitimate. Care to go on in and try to defend others might be mistaken by police as a perpetrator and you know that that's a possibility. Understand that for but I think most people who have that training you know would understandably police officers put good then put the gun down so understand your concern but my interest her mouth feeling is that honest citizens need to be able to defend themselves in words are not able to do these things keep happening. Sen. Ronald Reagan cochairs the emergency management oversight group. You said you would want all students to have the training and that sort of a concern to me because I think we should make it that all students get the training somehow how much cooperation from the UNC staff and faculty to give students to take the training so they know what the heck is going on and what to do and how is her resistance in their how do we or can we fix it and I have a feeling that if it's up to the student during probably very much interested in all of this until the bad thing happens and then why didn't I know it is voluntarily and we do put the message out to mock my theory on this is if we had a person come in your room and we have 10 students are 20 students in at least two other students to include a faculty member have gone through the training that want to pay for going to charge that Raymond and Elyse tell people what I know were not going to get 100% on that.

But if we can get a certain percentage Elyse have made sure we got one or two or three people trying to do it then is one messages and answer your question unless it's required on each campus. I don't know how to do a better job and were trying to do right now. What about mandatory training asked for an expert assessment should be required training class to increase survivability and increase the no chances that bad things won't happen to more people, or should it be left volunteer my personal should be required. Okay, I tend to agree with you. By the way also wants to know whether you would see campuses take steps to learn whether prospective students are members of terrorist watch lists zero system employees were. When students enroll, there's a way to check names against watch lists around to see ahead of time if you get some folks in there that you might want to watch is that done rather than wait until something happens. Short answer question is no.

We don't have that other question is a semi-does come to our attention in their own or radar screen of we don't have that right now that your watchlist but on other watch lists that are there is a way to what people a good idea to bounce the names against that to see ahead of time. If you have folks coming in who have the potential for being bad guys because around other watchlist by way of court until coordination is what I'm talking. I think I'd rather sit back and think about how we could approach that I'm certainly not going to say that I think it's a really think of some viable question and take a look at.

I don't have the answer that question right you been listening to highlights from a recent legislative discussion about safety measures on University of North Carolina campuses will return with more Caroline, if you love freedom we got great news to share with you now. You can find the latest news, views, and research from conservative groups all across the state. All in one place North Carolina conservative.com one-stop shopping for North Carolina St. movement North Carolina conservative.com. You'll find links to John Locke foundation blogs on the days news Carolina journal.com reporting and quick takes Carolina journal radio interviews TV interviews featuring CJ reporters and Locke foundation analyst plus opinion pieces and reports on higher education.

All of that from the Pope Center for higher education policy commentary and polling data from the Cintas Institute and news and views from the North Carolina family policy Council. That's right, all of that, all in one place North Carolina conservative.com that's North Carolina spelled out conservative.com North Carolina conservative.com. Log on today. Welcome back to Carolina journal radio I'm Donna Martinez, North Carolina should ensure that innocent people are not charged, prosecuted and convicted for conduct that could not reasonably be expected to know is actually wrong.

That is the key conclusion of a new John lock foundation spotlight report written by my next guest John to say who is director of legal studies, and John has some recommendations for lawmakers to address a really fascinating issue that doesn't get a whole lot of news media coverage. That's where we talking about today John, welcome back to the program start similarly talk about the criminal code and were going to be getting into this year we look at your report.

Most people might be thinking okay criminal code that's like robbery or murder or heaven forbid rape when you talk about the criminal code in North Carolina needing to do some reform you're talking about those types of crimes not just about those types of crimes we seem just an almost unbelievable explosion in the in the number and the range of criminal offenses in North Carolina over the last hundred years. In fact mostly over the last 50 years, every year there's dozens of new crimes created and most of them aren't anything like the traditional common law crimes of rape or murder or larceny.

These are regulatory crimes that are not things that people do beat that are crimes because their people inherently evil or not Christ because they cause some harm to an identifiable victim. Their crimes simply because the legislature in its wisdom, or perhaps not even legislature. But some tort agency or or professional licensing board has decided that they don't want people doing these things simply because society will function better if people don't give us an example of some type of regulatory crime that someone could actually commit and not even realize it.

Example I like to use this the sale of steel films. I don't suppose one person in a thousand, even those with a spill you but if it's a mineral deposit found in the cave while in North Carolina.

If you sell one of those origin. If you transport what out-of-state with the intention of selling. When you've committed a misdemeanor. Even if you found it on the table in your own property. Pretty amazing. So you are taking a look at this issue why John is part of the big problem that we've been dealing with for several years here. John Locke foundation. We caught over criminalization. There's too many criminal laws and making matters worse or not of accessible to the general public. This, some of them are in the chapter 14 of the general statutes which is meant to deal with the criminal law but hundreds of mar are scattered all through the other over 100 other fort over hundred 40 other sections of the general statutes have criminal offenses defined in them and that isn't even the end of it. There are many catchall provisions of the statutes which criminalize violating rules and regulations that are created by not by the legislature, but by their trade agencies by professional licensing boards by municipalities, even by Metropolitan sewer districts. These regulations aren't even in the general statutes you have to go elsewhere. You have to look at the nutritive, cold, or perhaps some Metropolitan statute or code. They're all over the place is no way ordinary citizen could possibly know what is and isn't legal. John I've always heard that maybe this is just he knows that an urban myth, but I've always thought that if you are ignorant of the law. That's really no excuse excuse.

If you break a law well that's true.that's that's one of the oldest principles of our legal system at but that's not entirely or in fact it's not the specific thing were focusing on here because the question here is whether or not you are ignorant of the law. The question is whether you knew any of the facts that had to do with what you did. Let's go back to that case about sale of steel films like as low as written. There's nothing there in the way of what we call mens rea. Mens rea is Latin for guilty mind.

It used to be the case for centuries that you couldn't be convicted of a crime and less the prosecution could prove first that you committed unlawful act and secondly that you did so with a guilty mind. That's what was necessary in order to prove culpability many many fact, most of these new laws. There is no mens rea provision in the statute. So in the case of spill.

You sale, spill defense, it doesn't matter whether you it doesn't it's not just the question of whether you knew that six selling these mineral deposits from caves was illegal you enough to know they were mineral deposits from case, you might just find a pretty rock or if someone might've given it to you and if you turn around, so you've committed a crime. That's not right. Why was that guilty mind aspect left out of these laws that relate to regulatory issues well up.

It was part of a huge transformation took place at the end of the 19th and beginning of the 20th century, when people in the progressive movement started pushing to transform this country into a modern what they considered to be a modern regulatory state. This meant transforming the criminal law for what it used to be, which was an instrument for punishing wrongdoers into an instrument for social control.

They wanted to use the criminal law is a tool for social engineering. It sounds as if you're saying that they wanted to make examples of people that's precisely right you know another old principle of English American law is that we would prefer for 10 guilty men to go free, rather than that one innocent person should be unjustly convicted that's been turned on its head.

Now the attitude with the regulatory regime is that we would. We don't mind punishing a few innocent people as long as it sets out example and persuades everybody else to comply. You write in your report on this issue that that's really unfair that's that's unjust and you make some recommendations. Let's go over them.

First of all, you say that we need a comprehensive review and update of the code right. I think the most best and most effective way to deal with not just the problem of mens rea, but the entire problem of over criminalization is to completely review the entire body of criminal law, North Carolina.

That means going through the all the statutes, not just chapter 14 looking at each end and means going through all the regulatory codes that are out there as well and fighting each and every instance where some some offense is classified as a crime legislature or actually this will be done by the commission if it happens and then will be approved by the legislature, but the commission needs to look at each of these things and decide. Should this really raise rise to level of a crime should just be an infraction if it is a crime. The definition needs to be complete in the sense that it has to specify what level of mens rea is required in order for for prosecutions to succeed in finding of guilt or if it really is worth that they can decide that this will be a strict liability crime for which there is no greater requirement but I suspect that will be very self with that also.

That review also involve taking all of those things that are just spread out in all these different administrative codes and putting them all in one place. Yes that's in many ways the most important part to make this whole system work with some modicum of justice.

We need to have one comprehensive criminal code that a citizen can go to and say this is what I need to do if it's well organized. If it's written clear accessible language. If all the all the elements of each crime are spelled out, including mens rea that Lee citizens have a chance of reasonable chance to know what is and what is not illegal.

You also say that we should be going to a standard of a default mens rea requirement.

Explain this would be something we would add after recodifications or perhaps as part of the process it would say that any new criminal laws are created subsequent to recodifications with either have to say explicitly whether what the mens rea level is or if nothing was said then there would be an implicit one and that statue would spell out what minimal level of mens rea is required for proper form for conviction. And lastly, John very quickly. A mistake of law defense.

This goes back to what we talked about earlier. It is traditional to say that mistake of law is no defense, but I don't think that applies anymore under the conditions we been dealing with lately. There's too many laws and nobody can possibly know them. That will be solved with recodifications temporarily built this kind of a provision would ensure that it won't come up again in the future. John today is director of legal studies for the John Locke foundation in this report you can read it@johnlocke.org John, thank you very much that you got all the time we have for the program this week. Thank you for listening on behalf of Muskoka and Donna Martinez join us again next week for more Carolina journal radio Carolina journal radio is a program of the John Locke to learn more about the job on validation donations that support programs like Carolina journal radio send email to development John Locke call 1866 GLS 166554636 airline is nearly done.

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