Ohio Leads the Way on Criminal Intent Reform

Recently passed legislation will make Ohio become the first state in the country to require that a person’s state of mind be a key element of any criminal prosecution. It does this by making criminal intent a default requirement for prosecutions in any newly-enacted crimes, although legislators can dispense with the requirement in a particular proposal.

More than simply establishing a default going forward, however, the legislation voids any law that does not require prosecutors to show criminal intent, and requires a review of current criminal offenses. Both chambers of the Ohio General Assembly passed the bill unanimously and the governor is expected to sign it.

“This is great liberty victory for all Ohioans. The law goes a long way to protect law abiding citizens from being convicted of a crime simply because of a mere accident,” said Robert Alt, president and chief executive officer of The Buckeye Institute for Public Policy Solutions.

The institute promoted the idea that laws must specify what constitutes a “mens rea,” or “guilty mind.” The Latin term is a centuries-old legal concept under which a crime is defined not only by a wrongful act (actus reus), but a criminal intent as well. The offender must have meant to commit the act and have known that it would have a criminal result.

Michigan does not have a mens rea requirement. As a result, many unsuspecting people have been caught up in criminal dragnets, facing fines and even imprisonment. State Rep. Mike Shirkey, R-Clarklake, introduced a bill this session to create such a requirement. House Bill 5807 requires that for all new laws, prosecutors would have to prove that an offender “purposely, knowingly or recklessly” acted. As with the Ohio bill, the Legislature could still reject the default and establish some other requirement for particular crimes. Shirkey's bill failed to make it out of committee and will die at the end of this session.

“The unanimous vote in the Ohio Legislature demonstrates a bipartisan concern over the damage that can be inflicted on a person who unwittingly violates a poorly drafted law. We hope the Michigan Legislature will consider similar legislation in 2015 in order to protect individuals and improve the execution of justice,” said Michael Reitz, executive vice president of the Mackinac Center and the author of a policy brief on the matter.

Michigan has a number of crimes on the books that few people would recognize as criminal offenses. It is a crime, for example, to transport a Christmas tree without a bill of sale. Since the Christmas-tree law makes no mention of mental culpability, someone could be criminally prosecuted for bringing home a tree without the right paperwork. It is also a crime to purchase a vehicle on a weekend, or to drive a snowmobile that is too loud. Many of the crimes in Michigan's statute books (48 percent of felonies and 76 percent of misdemeanors) are not part of the penal code and are administrative in nature, meaning they have not been closely scrutinized during the legislative process.

When criminal statues do not contain specific culpability language, prosecutors and judges are left on their own. As Reitz states in his policy brief, “Criminal Minds: Defining Culpability in Michigan Criminal Law,” the result can be “inconsistent interpretation by the courts.”

Stephen Markham, a justice on the Michigan Supreme Court, recently weighed in on the importance of specifying culpability within the state’s criminal statutes. In the case State of Michigan v. Alan N. Taylor, he wrote: “Our Legislature might wish to take care in defining critical terms and elements with as much specificity as possible and in terms that are as accessible to ordinary citizens as possible so that they might readily understand what course of conduct it is lawful, and unlawful to pursue.”

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A video of Reitz discussing the importance of criminal intent and some solutions: