Guilty! Of Something No One Knows Is Illegal

Legislation to safeguard Michigan residents from being prosecuted for unintentionally violating thousands of state statutes and regulations has run into a snag in the state Senate. At this writing, it is unclear whether this represents a major obstacle or just a bump in the road.

The legislation — House Bill 4713 and Senate Bill 20 — would establish a default standard for defining criminal liability, known as "mens rea," which is Latin for "the guilty mind." This standard would require that unless a law specifically states otherwise, prosecutors would have to show that a defendant intended to break the law in order to get a conviction.

Proponents of a mens rea standard argue that it is particularly important in an era where so many crimes are defined by regulatory agencies and are largely unknown by common people. One much-cited number is that the average American commits three felonies per day, mostly unknowingly.

“I fully intend to put these bills through the Senate Judiciary Committee,” said the committee chair, Rick Jones, R-Grand Ledge. “However, the Senate legal counsel has expressed concerns about how language in the legislation may affect past (already existing) laws. As an example, it could potentially nullify the law against selling cigarettes to minors.”

“There’s no problem with the wording as it pertains to future laws,” Jones continued. “But due to legal counsel’s concerns over the legislation’s possible effects on past laws, a meeting of interested parties has been scheduled so we can try to address those issues.”

Proponents of the reform argue that without a mens rea standard, Michigan residents face prosecution for violating laws they don’t even know exist. Michigan’s statute books contain an estimated 3,102 crimes, including criminal sanctions for complex or obscure administrative rules that average people aren’t likely to be aware of or fully understand. Yet according to one study, 27 percent of Michigan felonies and 59 percent of state misdemeanors contain no mens rea provision.

Michigan Supreme Court Justice Stephen Markman has called on the Legislature to clarify statutes that criminalize administrative offenses. House Bill 4713, sponsored by Rep. Ed McBroom, R-Vulcan, and Senate Bill 20, sponsored by Sen. Mike Shirkey, R-Clarklake, were introduced in response to Markman’s concerns.

The specific case that brought the issue to Markman’s attention involved Alan Taylor, a Sparta business owner who unknowingly became a criminal after he expanded an employee parking lot. After the parking lot was completed the Department of Environmental Quality informed Taylor that his project had encroached on a wetland. The department's lead investigator admitted it wasn’t clear that the lot was in fact on protected land. Ultimately, though, Taylor was found guilty and ordered to pay $8,500 in fines and costs.

House Bill 4713 was adopted and unanimously reported out of the House Oversight and Ethics Committee on Sept. 24. On Oct. 1, it was passed by the full House with a 106-0 vote. Senate Bill 20 was added as part of the legislative package in the Senate Judiciary Committee. It would make mens rea the default standard for all applicable laws.

The bills specify that they would not apply to certain types of laws, including substance abuse laws, traffic laws and identity theft laws. Groups that have offered testimony generally supportive of the legislation include the Mackinac Center for Public Policy, American Civil Liberties Union, National Federation of Independent Business, U.S. Justice Action Network and Michigan Chamber of Commerce. So far, the bills face no formal opposition.

The Senate legal counsel’s apparent objections referred to by Jones have raised concerns that the bills could get watered down. But Holly Harris of the U.S. Justice Network has expressed confidence that it won't happen.

"Chairman Jones has shown incredible leadership on justice reform issues, and as a 30-year veteran of law enforcement, he speaks with great credibility on these issues,” Harris said. “Requiring that a person have a criminal intent before he or she is labeled a criminal is a common-sense, bipartisan-supported reform, and we have faith Chairman Jones will get this bill across the finish line."

Jones said his goal is for the legislation to be reported to the full Senate by December.

“I might not have quite as much control over that as I usually would,” Jones quipped. “Unfortunately a good number of my legislative colleagues will soon be taking a two-week (deer hunting) break.”