How Michigan and Ohio Made It Harder to Accidentally Break the Law
by Josh Siegel
The Criminal Justice Committee was always an odd fit for Rep. Ed McBroom, a state lawmaker and dairy farmer representing a rural area of Michigan.
During his last term on the committee, McBroom, a Republican, was schooled on a criminal justice topic he had never heard of before, but on this one, few could blame him.
Rep. Rose Mary Robinson, a Democratic lawmaker and defense attorney from Detroit, would frequently want to know what the “mens rea” standards were for the state’s thousands of criminal laws and regulations.
“One day I said, ‘Rep. Robinson, I am not an attorney. I am a farmer. What on earth is mens rea?’” McBroom recalled.
Last month, Michigan Gov. Rick Snyder signed into law a bill written by McBroom, and supported by Robinson, that requires prosecutors — unless a law explicitly states otherwise — to prove that a defendant intended to commit a crime.
The willful intent standard, known as mens rea — which is Latin for “guilty mind,” as McBroom can now tell you — has suddenly become of central concern on Capitol Hill, as division over the issue threatens Congress’ efforts to pass a broader criminal justice reform bill.
At the federal level, opponents of requiring more laws to have a willful requirement standard argue that it would make it more difficult to prosecute corporations that commit fraud, taint food, or pollute the environment, because these violators could allege they didn’t intend to break the law.
Others fret over why Congress would risk ruining bipartisan momentum toward reducing harsh prison sentences from the nation’s war on drugs by injecting a seemingly unrelated, harder to understand issue — mens rea — into the same debate.
As federal legislators try to work out their differences, Michigan recently became the second Midwestern state, after Ohio in late 2014, to implement laws reforming how the mens rea standard is applied.
Proponents of mens rea, who call such requirements a necessary guard against overcriminalization by protecting people from accidentally breaking the law, say the states’ efforts prove that there’s a bipartisan way forward on the issue.
‘Common Sense’ in Michigan
“It was pretty commonsense around here,” McBroom told The Daily Signal of the effort he led to reform mens rea in Michigan, which he began at the end of 2014 and saw through until the legislation passed last month.
“After learning about it, I quickly realized that this word, this mens rea, is exactly describing the problem so many of us have been after. People can’t follow or keep up with all these regulatory burdens.”
McBroom, who was tending the cows on his farm in Dickinson County as he remembered this, added: “I happened to be at the right place at the right time.”
The Mackinac Center for Public Policy, a Michigan think tank that advocates for “free market” policies, reports there are more than 3,100 criminal offenses in state statutes, along with other penalties created by regulatory agencies without legislative approval.
Mackinac, which testified in favor of McBroom’s bill alongside the American Civil Liberties Union (ACLU) of Michigan, says that 26 percent of felonies and 59 percent of misdemeanors in the state lack an “adequate” mens rea provision, meaning a judge or jury doesn’t necessarily need to be convinced that the accused knew he was committing a crime.
In making its case, McBroom and Mackinac point to real-life examples where people were prosecuted, or threatened, for breaking laws they didn’t know existed. In a highly publicized case from 2009, Lisa Snyder, a stay-at-home mother who would routinely watch her neighbors’ kids before the school bus arrived, was warned by the Michigan Department of Human Services that she was engaging in illegal child care because she didn’t have a daycare provider’s license to supervise the children.
That law has since been changed. In another case, this one from 2003, a man named Kenneth Schumacher delivered scrap tires to what he believed to be a legal depository. But the facility lacked a license, and though he didn’t intend to break the state’s “strict liability” offense of unlawfully disposing of scrap tires, Schumacher was sentenced to 270 days in jail and a fine of $10,000.
Proponents of mens rea standards contend that judges sometimes interpret laws that are “silent” or weak on criminal intent as being a strict liability crime like this one, where a person can be convicted regardless of his or her state of mind.
Rather than go back and look at each criminal offense to see if it has a mens rea requirement, McBroom decided to require a default standard that would automatically apply to statutes that do not say anything about intent.
In order to win a conviction, prosecutors looking to punish people for such offenses must show that the defendant committed the crime with intent, knowledge, or recklessness.
The legislature still can make law that does not include a mens rea standard — making it a strict liability crime — by specifically saying that it intends for there to be no such requirement.
“This really goes to the fundamental tenets of criminal law,” said Mark P. Fancher, an attorney with the ACLU of Michigan’s Racial Justice Project.
“Law students are taught there is no crime if there is no concurrence between an act and their mental state,” Fancher told The Daily Signal. “In the absence of one of those things, then there is no crime. There is a reason why there is a heavy burden on the state to prove that someone has committed a crime. If someone is going to be held criminally liable, we want as a society for the state to provide sufficient evidence that proves people are guilty beyond a reasonable doubt.”
McBroom says that he was able to win over skeptical prosecutors by not including the criminal, motor vehicle, or public health codes in the legislation. For example, crimes like drunk driving and selling cigarettes or alcohol to a minor do not have an intent standard and were never a part of the discussion.
And prosecutors already must prove that defendants intended to commit crimes such as murder, robbery, and assault.
So McBroom’s legislation deals almost exclusively with laws related to regulatory actions.
“The message that resonated here, and is really missing at the federal level, is that we are not trying to get someone out of being guilty,” McBroom said. “We are just saying that unless otherwise stipulated, you can’t accidentally be a criminal. You can still face some civil penalties, but you are not a criminal. This mens rea issue is so critical to all of us just trying to live every day.”
‘Rescue’ Effort in Ohio
Bill Seitz, the state senator who made Ohio the first in the nation to adopt a default mens rea standard, approached the reform effort from a more familiar place.
A practicing lawyer since 1978 who’s serving the last of his 15 years in the Ohio General Assembly because of term limits, Seitz felt as though he was running out of time to address an issue that’s always irked him.
“Prosecutors are wed to the idea of making things as easy to prove as possible, so they like to have loose standards for mens rea; basically, it makes their jobs easier,” Seitz, a Republican, told The Daily Signal. “I would try to rescue these bills and put a standard in there, but I am not going to be there forever. So whether I am there or not, I figured it would probably be a good idea to have a clear call-out in the criminal code that you must specify the degree of mens rea.”
Similar to Michigan’s bill, Ohio’s legislation, passed in December 2014, says that for people who are prosecuted under existing laws that contain unclear or nonexistent mens rea requirements, those defendants, to be found guilty, must have acted “recklessly.”
In addition, any new criminal offense created by the legislature will be void if it does not contain some type of mens rea standard. So that means prosecutors who prefer that certain crimes not contain any intent requirement can still lobby the legislature to make that so, as long as lawmakers explicitly specify that simply committing the illegal act, regardless of whether the offender intended to do so, is sufficient to be found guilty.
“That’s why accusations of this being something that makes it easier for businesses to be bad actors rings hollow,” said Robert Alt, president and chief executive officer of The Buckeye Institute for Public Policy Solutions, an Ohio think tank that testified in favor of Seitz’s bill.
“We were able to build a coalition in Ohio by sitting down with prosecutors and saying, if it’s important for you to have no criminal intent, you can make that argument for the legislature, but the legislature needs to actively act upon that. Legislation crafted properly leaves prosecutors with ample tools to prosecute wrongdoers while still protecting the rights of the innocent.”
John Murphy, the executive director of the Ohio Prosecutors Association, told The Daily Signal in a brief interview that while “it’s early to make a final judgment” on the state’s mens rea reforms, “we haven’t seen any major problems yet.”
Seitz says he closely follows the mens rea debate occurring at the federal level. Thus far, the White House and Senate have resisted a House Judiciary Committee proposal that would require federal criminal laws without a clear requirement of intent to adopt a default standard saying the defendant had to knowingly commit a crime to be found guilty.
Those opposed to the House’s measure say it distracts from the bigger priority of undoing unfair mandatory sentencing laws and allege that proponents have failed to show how the mens rea reform would impact many people.
“The criminal justice reform debate is aimed at addressing the legacy of the war on drugs, and these proposals are not focused on that,” said Todd Cox, a criminal justice expert at the Center for American Progress in Washington D.C. “The crimes being talked about impact 0.08 percent of the federal prison population, and we believe they would make it difficult to enforce bedrock regulatory safeguards in areas of environmental, health, and consumer safety.”
Rep. Bob Goodlatte, the chairman of the House Judiciary Committee, believes that the mens rea issue is too important not to be included as part of the criminal justice reform package.
“One of the biggest problems facing the criminal justice system is the erosion of mens rea requirements,” Goodlatte, R-Va., told The Daily Signal in a statement. “As Congress focuses on criminal justice reform in the months ahead, it is imperative we address this issue so that honest Americans are not prosecuted for breaking laws when they had no intent to do so.”
While the debate is incomparable to outcomes in the states, Seitz wants people to know what Ohio accomplished.
“Simply making crimes easier to prove by prosecutors threatens us all, so we sought to undo that,” Seitz said. “What we did is really a blow to those who believe it should be as easy as shooting fish out of a barrel to commit crimes.”