Michigan statutes contain an estimated 3,102 crimes. That number far outstrips that of our neighboring states, as well as that recommended by the Model Penal Code, a seminal resource developed by the American Law Institute to help states codify American criminal law. The quantity and complexity of crimes on our books is so great that a reasonable citizen could not hope to understand most of them, let alone be accountable for knowing and complying with all of them. However, Michigan legislators are taking important steps towards ensuring that our criminal law functions in a sensible and predictable manner.

Centuries-old American legal traditions hold that a crime has not occurred unless there is proof of both a wrongful act (actus reus) and a culpable mental state (mens rea). However, 27 percent of Michigan felonies and 59 percent of state misdemeanors contain no mens rea provision. Hundreds of years ago, criminal statutes might have been silent on the subject of criminal intent because it was supposed that every person possessed an inherent understanding of right and wrong by virtue of their humanity. Today, a law with no intent requirement is called a “strict liability offense.” In a highly technical, rapidly evolving, and heavily industrialized society, strict liability offenses make it easy to circumscribe behavior and prosecute noncompliance with myriad rules, regulations and operational standards. This can be good for the public welfare, but it is problematic for the administration of justice in two ways. First, these crimes make it impossible for the average person to understand the law without the help of an expensive legal expert. Second, laws without intent requirements put offenders at the mercy of prosecutorial discretion, resulting in unpredictable judicial outcomes.

There are many instances in which these flaws in our law have worked against well-meaning Michiganders. In one case from 2003, a man named Kenneth Schumacher delivered scrap tires to what he believed to be a legal depository. Unbeknown to him, the facility lacked a license — which was no defense when he was subsequently prosecuted for the strict liability offense of the unlawful disposal of scrap tires. He was convicted, and when his appeal was finally decided four years later, the court upheld his conviction and a sentence of 270 days in jail and a $10,000 fine. This is an example of what can happen when our legislature criminalizes activities without specifying the culpable mental state.

HB 4731 and SB 20 would address these issues by enacting a default mens rea standard, a feature that 14 other states have already incorporated into their laws. While it would still be possible for legislators to write strict liability offenses, they would have to do so explicitly. The default would apply whenever intent requirements are absent, so that citizens would no longer have to assume that they will be held strictly liable for unknowingly breaking the law. This is an important step toward achieving a just, uniform and coherent body of criminal laws that identify crimes and impose criminal liability appropriately.

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