As Michigan lawmakers consider the state’s lack of criminal culpability standards, it may be useful to look at the experience of neighboring Ohio. One year ago this month, Ohio legislators passed what may be the most sweeping reform in the country. It requires a criminal culpability standard for every new criminal offense created. If lawmakers pass an act that creates a new offense but does not spell out a standard, the act is void. For every existing criminal offense, the reform presumes a “reckless” standard, meaning offenders are not considered to have acted with criminal intent unless they acted recklessly. Lawmakers can adjust the criminal intent standard for laws, new or old, as they see fit.

Enacting the reform was no easy feat. Ohio Sen. Bill Seitz, who introduced Senate Bill 361, said prosecutors fiercely resisted it at first. He said the key was finding an area of reform that was important to them, and that turned out to be the legal definition of "reckless."

“Prosecutors hated Ohio’s definition because the statutory language included something to the effect that you must show a ‘perverse’ indifference to the consequences,” he said. “Prosecutors hated the jury instructions on this,” he added, “because most people didn’t understand that ‘perverse’ can mean ‘heedless disregard,” explaining that jurors would often think of ‘perverse’ as sexually deviant behavior.

Seitz’s original bill was to use the tougher standard of “knowingly” for existing offenses, and the votes for it were not a certain thing. Seitz says it came down to an eleventh-hour conference call with the board of the Ohio Prosecuting Attorneys Association. He discovered that prosecutors would be supportive if lawmakers clarified the definition of reckless.

“Prosecutors were motivated to address the issue because now they had (the) opportunity to deal with something they cared about. There is always some element of the unknown when you push things off into the future,” he said. In other words, if “reckless” were to be redefined in the future, lawmakers may not have any control over it.

Not having a default position for the criminal intent standard had become increasingly problematic in recent years. Seitz said lawmakers were passing a number of acts that had sloppy language. When a criminal act does not include language about the state of mind required for a conviction, courts assume “strict liability,” meaning ignorance of the law is never a defense. Confusion may result.

He provided the example of Ohio’s laws regarding assault.

“Basic assault is a misdemeanor, but a number of Ohio laws made it a felony if you struck, fill-in-the-blank, a nurse, a firefighter, a judge, a service animal. The word ‘knowingly’ was in those acts; however, it was never clear what 'knowingly' modified. Was it (the) assault or the protected class? What if you didn’t know the person you hit was a nurse, for example? Then you’d be guilty of a felony,” he said.

Seitz says the assault laws might be similar to a law in Michigan under which it is a crime to sell cigarettes to minors. An offender may know it was against the law to sell to a minor but didn’t know the person was under 18, perhaps because the minor provided a fake ID or simply lied. Without specific language in the statute, the seller is considered to have acted with criminal intent.

Seitz, who is an attorney, said he had tried to fix the language in new bills as they came along, but the need to do that was becoming more and more frequent.

“We were all getting careless and we were now getting more nonlawyers in the Legislature. So, it was important to have a default standard and the general rule of thumb to guide the courts when these issues come up in the future,” said Seitz.

Ohio’s law has been in effect for less than one year, but Seitz has noticed a difference.

“Since this bill has become law, both our legislative service commission and my colleagues are becoming more attuned to the need to specify the degree of mens rea (criminal culpability) in bills and that is a good thing,” he said.

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