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(Editor’s note: This paper was co-authored with James R. Copland and Isaac Gorodetski and jointly published with the Manhattan Institute for Policy Research).
At present, Michigan’s vast, disorganized criminal law inherently places the Wolverine State’s residents at risk of unintentionally violating a growing array of regulatory crimes that are difficult to discover and understand. The complexity of administrating such a criminal code threatens to divert scarce resources away from the enforcement of serious violent and property crimes. This study analyzes the size and scope of Michigan’s criminal law and makes policy recommendations aimed at curbing this “overcriminalization.”
In recent years, Michigan’s criminal law has put into legal jeopardy a woman innocently helping her neighbor’s children board a school bus; a man who unknowingly deposited spare tires with a facility lacking proper state permits; and a business owner who expanded his parking lot on land that state regulators later deemed a “wetland.”
At present, Michigan’s vast, disorganized criminal law inherently places the Wolverine State’s residents at risk of unintentionally violating a growing array of regulatory crimes that are difficult, if not impossible, to discover and understand. For example:
The size as well as the breadth of Michigan’s criminal law not only places citizens in legal jeopardy but also creates a serious risk that prosecutions will vary markedly from jurisdiction to jurisdiction. Further, it threatens to divert scarce resources away from the enforcement of serious violent and property crimes. To address this overcriminalization, Michigan policymakers should consider:
*Meghan Herwig and Amanda Swysgood of the Manhattan Institute and Michael Van Beek and Josiah Kollmeyer of the Mackinac Center provided invaluable research assistance. Some language in this report is identical to that published in a previous Manhattan Institute publication: James R. Copland and Isaac Gorodetski, Overcriminalizing The Old North State: A Primer and Possible Reforms for North Carolina, Issue Brief 28 (Manh. Inst. For Pol’y Res., May 2014), http://www.manhattan-institute.org/html/ib_28.htm
In 2009, Michigan resident Lisa Snyder gained national media attention after the state’s Department of Human Services alleged that, in assisting her neighbor’s children board the school bus in front of her house each morning, free of charge, she was guilty of a misdemeanor crime for operating an illegal day care in violation of state regulations.[1] Her local legislator, now–lieutenant governor Brian Calley, spearheaded a legislative fix that helped her avoid prosecution,[2] but many other individuals and small businesses in the Wolverine State have been placed in legal jeopardy by the state’s sweeping criminal laws. These include a man who unknowingly ran afoul of state environmental regulations for disposing spare tires[3] and pig farmers who suddenly found themselves potential felons after the state’s Department of Natural Resources issued a vague interpretive ruling prohibiting the farmers from owning much of their livestock.[4]
Unlike most traditional crimes, regulatory and licensing offenses in Michigan do not generally require an individual to understand that his actions were illegal.[5] Most individuals, moreover, would have little way of knowing that their actions were illegal: thousands of crimes are on the books in Michigan, the number of crimes has been growing annually, and any violation of the state’s voluminous regulatory code — including those dealing with public health, agriculture, and the environment[6] — is a criminal offense, notwithstanding that such regulations are promulgated without legislative action.
At the federal level, the trend toward overcriminalization has drawn the attention of Congress[7] and judges.[8] In recent years, scholars at the Manhattan Institute and elsewhere have examined the increase in “regulation by prosecution,” in which the criminal law is used as a tool to punish ordinary business practice.[9] Although there is “wide consensus” among scholars that the explosive growth of criminal law is problematic,[10] most ordinary citizens remain unaware that they are likely guilty of many criminal offenses — or suspect that they will never be prosecuted.[11]
Most attention placed on overcriminalization to date has focused on federal crimes; however, most criminal prosecutions occur at the state level.[12] Some scholars have argued that — contrary to the federal trend toward expanding the criminal law — states, on balance, may be “moving towards less criminalization rather than more.”[13]
To study the extent to which states have followed the federal trend toward overcriminalization, the Manhattan Institute has begun to look at the evolution of some states’ criminal laws in detail. In May 2014, coauthors Copland and Gorodetski published a primer on the subject, examining North Carolina.[14] The present issue brief, authored jointly with Michael Reitz of the Mackinac Center, is the second in the series.[15]
Michigan’s criminal code contains more than eight times the number of sections found in the Model Penal Code, a document drafted by the American Law Institute (an independent group of lawyers, judges, and academics) to “assist legislatures in making a major effort to appraise the content of the penal law by a contemporary reasoned judgment”[16] — and significantly more than neighboring states Ohio, Illinois, and Wisconsin.[17] Moreover, Michigan’s legislature has been expanding the reach of its criminal law, adding more than 45 new criminal offenses to the books annually, on average, from 2008 through 2013.[18] Almost half of these new offenses are felonies, and almost three-fourths are codified outside the state’s penal code.
Even as Michigan’s legislature has been adding new crimes to the books, it has also tackled some criminal-justice reforms intended to lighten the criminal law’s fiscal burden. (In Michigan, one out of every five state general fund dollars is spent on corrections.)[19] In June 2013, the state launched a Justice Reinvestment Initiative, with a specific focus on its felony sentencing guidelines.[20] Nevertheless, there has been little legislative effort, to date, to assess the criminal-law reach of the state’s regulatory code and its impact on the state’s economy and business development.
This issue brief looks at overcriminalization trends in Michigan, quantitatively and qualitatively, and proposes various avenues for reform. Section I looks at Michigan’s criminal code quantitatively — including the number and rate of creation of crimes, how Michigan compares with its neighbors, and how the legislature has been reforming the criminal law in the sentencing context. Section II looks at Michigan’s criminal law more qualitatively — including outdated criminal provisions, redundant new crimes added to the books, the broad array of crimes “without intent” under Michigan law, and various regulatory mechanisms through which new crimes are enacted. Section III assesses the policy implications of overcriminalization and makes recommendations for reform.
Number of crimes. The Michigan Penal Code, located in chapter 750,[21] and the listing of additional crimes and offenses, located in chapter 752,[22] run to 266,300 words, taking up 500 pages of ten-point, double-spaced Times New Roman text.[23] Its provisions contain a combined 918 sections,[24] though this count does not fully reflect the number of crimes on the books,[25] as many crimes — including 48 percent of felonies and more than 76 percent of misdemeanors — are codified outside the penal code.[26] Overall, Michigan has an estimated 3,102 crimes in its statutes, including 1,209 felonies and 1,893 misdemeanors.[27] Yet many more exist through regulatory “catchall provisions,” which make entire sections of the regulatory code criminal, including the state’s regulations dealing with public health, agriculture, and the environment.[28]
Comparative trends. By comparison, Ohio’s criminal code contains 415 sections,[29] Illinois’s 571,[30] and Wisconsin’s 384.[31] The criminal codes of Michigan’s neighbors demonstrates that having a large number of codified crimes — more than the ordinary citizen could hope to know and understand — is a common, modern trend. Each of these states has increased the scope of its criminal laws far beyond the Model Penal Code, developed in 1962, which contains only 114 sections.[32] Although cross-state comparisons of criminal laws are complicated by the fact that states organize their laws differently — and, in many cases, as in Michigan, not all criminal provisions are located in criminal codes themselves — Michigan appears to have a criminal-law complexity even more pronounced than comparison states.
Intertemporal trends. Not only does Michigan seem to have more crimes on the books than its neighbors; the state has also been adding crimes consistently in recent years. Over the last six years, the state has, on average, added more than 45 crimes annually, 44 percent of which were felonies (see graph below). Seventy-three percent of the new crimes created during this period fell outside the penal code — including 25 crimes in the laws governing natural resources and environmental protection (chapter 324) and 25 crimes in the laws governing trade and commerce (chapter 445).[33] These figures indicate that Michigan’s legislature has been even more aggressive in adding new crimes to its books than the legislature of North Carolina, a state that the Manhattan Institute deemed to be overcriminalized, partly based on North Carolina’s adding of 34 new crimes, on average, annually to its laws.[34] (North Carolina, as mentioned, was the subject of the Manhattan Institute’s first state-overcriminalization analysis.)
Sentencing. Notwithstanding the broader trend toward increasing the number of criminal offenses, the Michigan legislature has taken recent steps to reassess the state’s sentencing approach — fueled in part by the fact that prisons constitute a greater share of Michigan’s general fund budget than they do in any other state.[35] After launching a Justice Reinvestment Initiative in June 2013, Michigan completed an analysis of data across the criminal-justice system in May 2014.[36] Although the policy changes stemming from this effort are as yet undetermined, other states have undertaken sweeping efforts to reallocate prison populations toward violent offenders — most notably, Michigan’s neighbor Indiana in its 2013 legislative session.[37]
Old crimes. Even as more crimes have been created in Michigan, there have only been sporadic efforts to rid the state’s laws of archaic existing crimes. Criminal offenses currently on Michigan’s books include:
In addition, the state legislature has left on the books various “moral” offenses — some of questionable constitutionality[42] — such as prohibitions on cohabitation by divorced parties,[43] adultery,[44] teaching or advocating polygamy,[45] and seduction by a man of an unmarried woman.[46]
New crimes. A close examination of recently promulgated crimes reveals that they are often duplicative or unnecessary. For example, among the new crimes passed by the legislature in 2012 were:
The prohibition of election material in a polling place rightfully aims to safeguard the integrity of the voting process but duplicates Michigan’s host of electioneering prohibitions on the books, including a broad ban on unofficial materials related to an election covering the very same conduct.[50] Record-keeping and contact-information display requirements are appropriate matters of state regulation, but whether violations in this area should be added to the criminal code is, at the very least, questionable (and especially doubtful in the case of a barge owner’s requirement to display contact information in a particular lettering type, color, and size).[51]
Criminal intent. Criminal statutes that fail to specify whether the state must establish that the defendant intended to commit an illegal act contribute to overcriminalization. Centuries of legal tradition have recognized that for a conviction to occur, a crime requires both a wrongful act (actus reus in Latin) and a culpable state of mind (mens rea). Not only does this principle protect the innocent, but it provides additional due-process protections against overaggressive prosecutions.
In the late nineteenth century, legislatures began enacting “public welfare” offenses as a regulatory response to industrialization — laws that imposed liability on the actor regardless of intent. For example, traffic laws, workplace regulations, and the sale of food and beverages imposed strict liability with the intent to promote social welfare and safety.[52] Because public welfare offenses omit the requirement that intent be established for a criminal prosecution, individuals can be convicted of crimes of which they were unaware through conduct that would be otherwise unobjectionable, apart from the regulatory prohibition.
Congress and state legislatures regularly enact public welfare offenses. For example, a 2010 joint report by the Heritage Foundation and the National Association of Criminal Defense Lawyers found that 57 percent of criminal laws proposed in the 109th U.S. Congress contained inadequate mens reaprovisions.[53]
Michigan displays a similar trend. An extensive 2014 analysis of Michigan criminal statutes conducted by the Mackinac Center for Public Policy found that hundreds of crimes have an inadequate or no mens rea provision. Michigan statutes contain at least 3,102 crimes: 1,209 felonies and 1,893 misdemeanors.[54] Of these, 321 felonies (27 percent of all felonies) and 1,120 misdemeanors (59 percent) contain no mens rea provision.[55]
The remaining crimes require a hodgepodge of mental states on the part of the accused, including that the person acted “willfully,” “intentionally,” “knowingly,” “recklessly,” “maliciously,” “with the intent to,” or some combination.[56] Little indicates that this patchwork of mental states required for various crimes is the product of considered deliberation; rather, it is likely a product of ad hoc decision making by different drafters of these laws. Examples of crimes that fail to define an intent element include:
When the legislature does not explicitly state an intent standard in a criminal offense, Michigan courts have adopted the practice of evaluating whether amens rea requirement should nevertheless be inferred. While the Michigan Supreme Court has indicated that it does not favor strict-liability crimes, the court maintains that the legislature may decide to penalize certain acts, irrespective of the person’s intent.[61] When a statute codifies a common-law crime (such as murder or theft), the courts assume a mens rea standard.[62] For other crimes that are silent on intent, the courts look to the language of the statute and the legislative history to determine whether the legislature meant to create a strict-liability crime.[63]
Imprecise legislative drafting and judicial efforts to infer legislative intent have resulted in expensive litigation and lengthy appeals to determine what standard of intent should be applied at trial. Worse, unclear intent requirements jeopardize the personal liberty and livelihood of individuals who conduct themselves in a decent fashion, without criminal intent, but who are nevertheless in danger of prosecution.
Regulatory crimes. Although many new crimes on the books enacted by statute are regulatory in nature, a substantial number of crimes are created with no act of the legislature whatsoever. As previously mentioned, various statutes contain catchall provisions that vest in administrative state and local agencies authority to criminalize conduct through their own promulgation of regulations.[64]
An individual who violates any provision of Michigan’s public health code is guilty of a misdemeanor and can also be prosecuted for a violation of “a rule promulgated under this code, or a local health department regulation [emphasis added].”[65] The state’s agriculture, occupational, and environmental codes are riddled with catchalls not only criminalizing the violation of any legislative provision within the various parts of acts but also violations of any rules promulgated, orders issued, or operational standards developed by myriad departments, commissioners, directors, or commissions.[66]
Michigan’s environmental and natural resources laws — largely codified in the Natural Resources and Environmental Protection Act (NREPA)[67] — are densely packed with catchalls criminalizing sometimes hyper-technical regulatory requirements concerning the management of state lands, air and water pollution, solid and hazardous waste disposal, wetland protection, and other areas.[68]
Protecting the environment and natural resources in Michigan with strong rules and regulations is an important government responsibility, but the blanket criminalization of certain matters — such as the failure to surrender a fishing license within a prescribed time span;[69] ensuring the proper type, size, and color of letters on a barge identification;[70] or properly displaying a livery boat’s maximum carrying capacity[71] — needlessly poses a danger to the state’s residents and businesses. Many of these catchall provisions — granting agencies, heads of agencies, and various commissions effective authority to create new criminal offenses — do not contain criminal-intent standards, despite the fact that much of the conduct prohibited under Michigan’s regulatory code is unlikely to be intuitively criminal.
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.
—James Madison, The Federalist, No. 62
For the aforementioned reasons, it is certain that many Michiganders unknowingly commit crimes every day. Underlying the argument against overcriminalization is the fact that modern criminal codes, such as Michigan’s, have expanded so exponentially in recent decades that an ordinary person can no longer be assumed to know whether certain conduct is legal — unless advised by the armies of lawyers so common in modern large corporations.[72]
Even if each new crime were enacted with the best of intentions, careful consideration is rarely given to how a new crime would fit into the current criminal-law framework, how — or whether — it would be prosecuted, and what risks the new offense would pose to innocent individuals. Consequently, unnecessary laws pile up (old crimes are rarely pruned from the books), eroding the integrity and logical cohesion of the criminal-justice system, as laws on the books go unused and unenforced.[73]
At the heart of the Anglo-American criminal-justice system is the principle that an individual charged with a crime should be provided fair and adequate notice of the conduct deemed criminal.[74] A corollary principle, that ignorance of the law is not a legitimate excuse,[75] traces to a time when virtually all criminal laws were tied to the “moral code”[76] — including clear societal violations such as murder, assault, or robbery — for which the risk of being unknowingly ensnared by the criminal law was exceedingly low.
In addition, as a general rule, innocent individuals were historically protected by intent requirements: traditional common law required a crime to involve not only a prohibited act but also the intent to commit that criminal act (actus rea and mens rea, respectively).[77] In short, the requirement that a criminal act be knowingly committed, not accidental, prevents the innocent from being unjustly targeted by criminal law.
To be sure, the most dangerous consequences of overcriminalization are mitigated by the discretion that prosecutors exercise when deciding whether, or in what manner, to prosecute a crime. In fact, legislators often rely heavily on the judgment of prosecutors, thereby passing overly broad criminal statutes, confident that no injustice will result.
Yet even if all prosecutors faithfully and judiciously execute their duties, reliance on prosecutors as an exclusive backstop to protect the innocent creates, at minimum, serious risk of wide variance in treatment across jurisdictions. And — to the extent that law-enforcement officials and prosecutors pay attention to the plethora of regulatory crimes in states with criminal codes like Michigan’s — the enforcement of such crimes diverts scarce resources from the enforcement of serious violent and property crimes with real victims.
Of course, blithely assuming that prosecutorial discretion is a reliable check on sweeping, inarticulate criminal laws is a perilous proposition — especially when considering the potential deprivation of individual liberty, disruption of life, and marring of reputation that criminal prosecution can entail.[78] At the federal level, for instance, prosecutorial discretion did not prevent absurd convictions, such as a fisherman convicted of violating a post-Enron, anti-document-shredding statute for destroying three fish;[79] a Florida seafood importer sentenced to an eight-year prison sentence for transporting lobsters in plastic bags, rather than in cardboard boxes (as required by Honduran regulations);[80] or an engineer who pleaded guilty for diverting a backed-up sewage system into an outside storm drain to prevent flooding at a retirement home.[81]
Michiganders, too, have found themselves lost in their state’s labyrinthine criminal-law regime. Consider the case of Kenneth Schumacher. In 2003, Schumacher delivered scrap tires to a facility that he believed to be a legal depository — only to be subsequently prosecuted for unlawfully disposing of them because the facility lacked a license.[82] In 2007, a Michigan appeals court upheld his conviction for the unlawful disposal of scrap tires, including a sentence of 270 days in jail and a $10,000 fine, because it determined that Schumacher’s subjective judgment that his delivery was legal did not absolve him of the environmental law’s strict licensing rule.[83]
More recently, pig farmers in Michigan suddenly found themselves potential felons after the Michigan Department of Natural Resources issued a vague interpretive ruling to add certain types of pigs to its list of “prohibited species”[84] — with violations potentially resulting in a felony conviction, two years in jail, and $20,000 in fines.[85] Without any legislative action, deliberation, or analysis, a regulatory agency was able to disrupt an entire industry with a vague rule requiring pig farmers to bring pictures of their pigs to the Department of Natural Resources to let government workers decide, on a case-by-case basis, whether each pig complied with the new rule.[86] A circuit court has declared the agency action unconstitutional, leaving Michigan hog owners momentarily relieved as they await the state’s appeal.[87]
At the federal level, the U.S. House of Representatives formed a task force last year to focus on overcriminalization, with ten members evenly split between Democrats and Republicans.[88] In Michigan, as part of an effort to effectuate sentencing reform,[89] the state formed a Justice Reinvestment Working Group, consisting of representatives from both chambers of the legislature, governor’s office, and various administrative offices to analyze strategy relating to Michigan’s crime, community corrections, and sentencing policies, with a special focus on improving public safety and reducing spending on corrections.[90]
A similar, temporary task force or working group specifically examining overcriminalization in Michigan could be established for a specified period to conduct hearings on issues such as criminal-intent requirements, criminalization of administrative rules, and the scope and size of criminal law in the state.[91] In addition, the task force could set guiding principles for lawmakers when creating new criminal offenses, with an emphasis on organizing and clarifying criminal laws for state residents. Guidelines for legislative drafters, suggested by a diverse array of policy groups to the congressional task force, include the following questions:[92]
Following, or concurrent with, the establishment of the legislative task force, the Michigan legislature could create an independent commission charged with consolidating, clarifying, and optimizing Michigan’s criminal statutes. Alternatively, the existing Michigan Law Revision Commission (MLRC), established in 1965 to “examine the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms,” could be delegated the charge.[93]
Such a commission’s first task should be an accurate accounting of all criminal offenses on the books in the state. Within that body of law, the commission should identify and recommend for repeal all unnecessary and overbroad laws[94] — a task that MLRC has undertaken in the past but one that needs further effort — including outdated laws, unutilized laws, and crimes needlessly duplicative of other offenses (such as specific crimes dealing with similar types of electioneering conduct at polling places[95] or the stealing of shrubs, bushes, and vines[96] already criminalized by the common-law crime of larceny). Additionally, the commission could evaluate whether penalties are proportionate to the crimes (e.g., whether the penalty for returning nonreturnable beverage containers[97] should be as severe as that of assault and battery).[98] Finally, the commission should evaluate the propriety of catchall provisions criminalizing the violation of large swaths of administrative rules,[99] as well as review existing mens rea provisions in Michigan law — recommending possible changes as necessary.
The creation of such a body is not unprecedented and has, in fact, been utilized by nearby states. In 2004, Illinois created a commission as part of its Criminal Law Edit Alignment and Reform (CLEAR) initiative in a long-term, bipartisan effort to thoroughly review and clean up its 300,000-word criminal code.[100] As a result, Illinois’s criminal code was reorganized, made easier to understand and reference, reduced in size by one-third, rid of redundancies and inconsistencies, and updated with mens rea protections where necessary.[101] Last year, Minnesota formed a team that helped identify for repeal 1,175 antiquated, unnecessary, and poorly drafted laws, including criminal laws, with a special focus on onerous regulatory provisions.[102] A bit farther away, in Kansas, an “Office of the Repealer” (created in 2011 by the governor)[103] has already recommended 51 statutes and regulations for repeal.[104]
The Model Penal Code105 contains a default mens rea culpability requirement when a criminal statute is silent as to culpability.[106] Although such a provision would not prevent the legislature from exercising its judgment to create crimes even in the absence of intent, lawmakers would have to make that judgment clear in express language. Yet Michigan lacks a default mens rea safeguard,[107] even though its penal code has, as mentioned, eight times as many sections as the Model Penal Code. Today, 14 other states, including Illinois and Ohio, already have a default mens rea provision paralleling that of the Model Penal Code.[108]
A 2013 study by the Mackinac Center reviewed landmark Michigan legal decisions that addressed the mens rea issue; the study concluded that Michigan should adopt a default mens rea provision that would apply to crimes where the legislature has been silent on the issue of intent.[109] The legislature would be free to adopt strict-liability crimes if so desired, but if a statute failed to articulate an intent element, courts would be advised to incorporate the default mens rea standard provision.
A recent decision of the Michigan Supreme Court illustrates why such a change is necessary. Alan Taylor, owner of a medical-device manufacturing company, moved his business to Sparta, Michigan, in 1998.[110] In 2006, to accommodate the growth of his company, Taylor decided to expand the employee parking lot. The Department of Environmental Quality later informed Taylor that the parking-lot expansion intruded upon a state-protected “wetland.” Taylor disputed this finding, pointing out that environmental engineers did not note the presence of a wetland, while the DEQ’s own investigator admitted during litigation that the alleged wetland was not readily evident. Taylor was nevertheless charged and convicted for violations of the state’s wetlands protection law and was ordered to pay a fine of $8,500.
Taylor’s appeal eventually reached the Michigan Supreme Court, but the court declined to review the case. In a concurring opinion, however, Justice Stephen Markman highlighted the problem of criminal statutes with poorly defined intent standards: “Imposing strict liability on an individual for a violation of [the wetlands protection act] has the potential to subject Michigan property owners to criminal prosecution even when they are unaware that a property at issue comprises a wetland and, as a result, that certain not-obviously-damaging conduct affecting that land is prohibited.”[111] Markman called on the legislature to clarify intent standards in criminal statutes:
[O]ur Legislature might wish in the future to review this and similar criminal statutes and communicate with clarity and precision its specific intentions concerning which public-welfare offenses … should be treated by the judiciary of this state as strict-liability offenses[.] It is the responsibility of our Legislature to determine the state of mind required to satisfy the criminal statutes of our state, and the judiciary is ill-equipped when reviewing increasingly broad and complex criminal statutes to discern whether some mens rea is intended, for which elements of an offense it is intended, and what exactly that mens rea should be.[112]
Kenneth Schumacher’s conviction, previously discussed, for the unlawful disposal of scrap tires, in violation of NREPA, further illustrates the risk in relying on courts to infer a mens rea provision when legislation is silent.[113] The Michigan Court of Appeals found that the statute[114] “contains no language from which it may be inferred that guilty knowledge is a required element for offending its mandate”[115] — which can, likewise, be said for most of the aforementioned environmental, health, agricultural, and occupational codes criminalized by catchall provisions.[116]
The lack of a systematic, uniform framework in the promulgation of new laws means that the requisite mental culpability for committing crimes is often unclear and that, absent a default mens rea provision, individuals must assume that they are strictly liable for crimes that they unknowingly commit. Fortunately, at least some in the legislature understand this problem: Representative Mike Shirkey, R–Clark Lake, recently introduced legislation, House Bill 5807, to establish a mens rea default for newly enacted crimes.[117]
Reforms suggested in this issue brief should be viewed merely as first steps. The state may also wish to codify the rule of lenity (clarifying to courts that defendants should be given the benefit of the doubt when statutory language is ambiguous), to convert existing crimes to civil infractions, or to eliminate potential jail time for the offenses.
Legislators might also usefully consider procedural changes to prospectively improve enactment of new crimes — such as requiring new offenses and sentencing enhancements to be indicated as such in the caption of the bill and be approved by both the subject-matter committee and the committee with jurisdiction over the criminal-justice system. These ideas, and others, would necessarily be outgrowths of any bipartisan task force or criminal-law review commission. (The precise structure of such reforms are, of course, best left to policymakers closest to the needs of the state.)
Still, the reforms proposed here would set Michigan on the path toward a coherent, effective criminal law — rather than a dubious model of overcriminalization. A bipartisan task force to examine Michigan’s criminal law would help identify the state’s problem areas in more detail, as well as suggest best avenues for reform (and risks to avoid). A commission review of the state’s existing criminal law would improve the clarity of Michigan’s penal code by trimming laws and regulations that have outlived their usefulness. Such a change, along with a default mens rea law, would reduce the chance that individuals are prosecuted for crimes that they unknowingly commit, absent a clear decision by legislators that a strict-liability crime is needed. These changes would, not least, focus Michigan’s scarce criminal-enforcement resources on violent and property crimes — a matter of significant import, given crime levels and fiscal constraints in Detroit and other urban areas in the state.[118]
