As Congress Fumbles Overcriminalization Reform, Burden Lands on States

Sen Orrin Hatch, R-Utah, has introduced legislation in the U.S. Senate to protect citizens from being criminalized for unknowingly disobeying regulations they didn't even know existed. So far, the effort has run into a wall of obfuscation and resistance typical of Washington. In light of this response, coming on the heels of similar ill-fated efforts at reform at the national level, attempts to address the issue at the state level take on added significance.

At issue is the legal concept called "mens rea," the Latin term for "a guilty mind." It refers to a long-standing doctrine in the law that a person should have to know that he is doing something wrong before he is prosecuted for a criminal offense.

John Malcolm, the director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation, cited a well-known aphorism to explain its significance: “As Oliver Wendell Holmes expressed it: ‘Even a dog distinguishes between being stumbled over and being kicked.’” Malcolm calls the doctrine “the very foundation of our criminal justice system.”

Throughout most of the nation's history laws required two things of an act before it became a crime: An individual must cause (or attempt to cause) a wrongful injury and he must do so with some form of malicious intent. 

In recent decades, the number of complex regulatory regimes have increased both at the state and federal levels. Many of these regimes prescribe criminal sanctions for violating highly arcane rules, even as the mens rea concept is omitted from the statutes that authorize such rules. According to Malcolm, this situation has been common for statutes that deal with environmental regulations and civil rights.

“There are roughly 5,000 federal criminal statutes scattered throughout the 51 titles of the U.S. Code,” Malcolm said. “And in the Code of Federal Regulations there are an estimated 300,000 or more – most likely a lot more – criminal regulatory offenses. The truth is that nobody, not even Congress or the Department of Justice, knows precisely how many criminal laws and regulations currently exist.”

“Many of these laws lack adequate, or even any, mens rea standards — meaning that a prosecutor does not even have to prove that the accused had any intent whatsoever to violate the law or even knew he was violating a law in order to convict him,” Malcolm continued. “We’re trying to ally with several others to get a default mens rea bill in the Congress. Senator Hatch has tried in the Senate, but unfortunately, his effort hasn’t been successful.”

The legislation to which Malcolm referred would establish that the criminal intent concept must be applied to appropriate statutes even if those statutes fail to specify that it does.

Legislation aimed at accomplishing this has been introduced in the Michigan Legislature. House Bill 4713 and Senate Bill 20 are currently in the Senate Judiciary Committee. House Bill 4713, sponsored by Rep. Ed McBroom, R-Vulcan, was passed unanimously, 106-0, by the House on Oct. 1.

Senate Bill 20, sponsored by Sen. Mike Shirkey, R-Clarklake, was paired with House Bill 4713 in the Senate. The bills have been before the Senate Judiciary Committee for a relatively brief time. However, an issue has been raised pertaining to how broadly the concept should be applied. It is not clear yet whether this will result in only a minor tweaking of the language in the legislation or a more significant overhaul.

In Michigan, the issue of criminal intent was brought to the forefront when Supreme Court Justice Steve Markman called on the Legislature to clarify state statutes that criminalize administrative offenses. Markman took this step in reaction to a case in which a Sparta business owner was ordered to pay $8,500 in fines and costs after expanding a parking lot into an area he didn’t realize had been designated as a wetland.

“Legislatures have been passing legislation that strengthens regulation but use very weak mens rea or no mens rea at all,” Malcolm said. “This creates a strict liability that results in people unknowingly being put in a position under which they could be considered criminals. That’s a problem. What’s needed is legislation that says a court should not view silence by the legislature as meaning the absence of mens rea.”

“Some states like Ohio have passed mens rea default legislation, although what passed in Ohio was a somewhat weak version,” Malcolm added. “The folks on the left like the American Civil Liberties Union used to be supportive of mens rea but of late in some cases these groups have started considering it an attempt to get rid of regulations.”

In Michigan, the ACLU has been supportive of the proposed changes.