Michigan should adopt ‘criminal intent’ rule

Orrin Hatch and Michael Reitz

Barry County resident Lisa Snyder is a good neighbor — and that nearly got her thrown in jail. Snyder’s life of crime began when she agreed to watch her neighbor’s children before school so the neighbor could leave early for work. She was understandably shocked one day to find a letter from the Michigan Department of Human Services accusing her of operating an unlicensed day care facility, punishable with fines and even jail.

This is just one example of over-criminalization — the current states of affairs in which the criminal code has become so broad and so complex that honest, reasonable people can be unfairly punished for unobjectionable (and even commendable) actions. Thankfully for the Snyder family, lawmakers quickly amended this particular occupational licensure law. Count that as one small step for neighborly behavior.

Over-criminalization is a problem at the state and federal level. Nearly 5,000 criminal statutes clutter the U.S. Code, along with hundreds of thousands of regulations that also carry criminal sanctions. States legislatures pile on yet more; Michigan alone has more than 3,100 criminal prohibitions on its books.

The surplus of crimes mocks the idea of establishing priorities for law enforcement. Too many criminal laws also empower government to entrap people. Many unnecessary laws regulate conduct that reasonable people don’t consider to be a crime. In Michigan, you become a criminal if you perform “The Star-Spangled Banner” in a medley, fail to use the proper forms at your campsite, improperly transport a Christmas tree or participate in certain walkathons. Families and small business owners who fail to comply with regulatory requirements can face life-ruining consequences.

Many laws fail to specify a criminal intent requirement, leaving people vulnerable to prosecution for committing a crime without intending to do so. For centuries, the legal system recognized that a crime consists of both a wrongful act and criminal intent on the part of the criminal. Words like “intentionally,” “willfully” and “recklessly” were commonly used to differentiate between an accident and an intentional, criminal act. This ensured that individuals were penalized according to their mental culpability.

But legislatures have gotten into the habit of enacting strict liability crimes, which don’t require the prosecution to prove that the defendant acted with any criminal intent. A report by The Heritage Foundation and the National Association of Criminal Defense Lawyers found that 64 percent of nonviolent criminal offenses enacted during the 2005-06 congressional term lacked an adequate criminal intent requirement. A Mackinac Center analysis further found that 26 percent of Michigan’s felony statutes and 59 percent of its misdemeanors fail to adequately define intent.

A sensible solution is for the Legislature to establish a default intent provision for new and existing laws to guide the courts when a statute is silent on intent. The Model Penal Code, developed by the American Law Institute, recommends a default intent standard, and 15 states have adopted some form of one. Congress is currently considering this issue in the context of other criminal justice reforms.

The Michigan Legislature is showing leadership. House Bill 4713, sponsored by Rep. Ed McBroom, passed the House unanimously. The Senate Judiciary Committee is reviewing this bill and a related bill sponsored by Sen. Mike Shirkey. Organizations from the Michigan Chamber of Commerce to the ACLU of Michigan support it.

These reform bill would not eliminate a single crime from the books; they would clarify the state of mind the prosecution must prove when the law is unclear.

U.S. Sen. Orrin Hatch, R-Utah, is a member of the U.S. Senate Committee on the Judiciary. Michael Reitz is the executive vice president of the Mackinac Center for Public Policy.