Not So Criminal Minds: Government Convicts People Who Do Not Knowingly Commit Crimes

LANSING — There are thousands of federal laws and many more coming from the states. So many, that at the national level the government doesn't even try to add them up anymore.

And while historically the state has had to show that a person knowingly committed a crime, many criminal statutes have abandoned this approach.

In recent decades, the government has criminalized an ever-increasing amount of activity, including many things not thought to be harming anyone. 

What can be done to turn that tide while keeping society safe was the topic of an "Issues and Ideas" event put on by the Mackinac Center for Public Policy on Tuesday. The panel featured Mike Reitz, executive vice president of the Mackinac Center, Paul Larkin Jr., senior legal research fellow at the Heritage Foundation, and Marc Levin, who directs the "Right On Crime” initiative at the Texas Public Policy Foundation.

Reitz is the author of a new study, "Criminal Minds: Defining Culpability In Michigan Criminal Law."

"A concept rooted in centuries of American and English legal tradition is that the commission of a crime requires both a wrongful act and a culpable mental state," Reitz wrote. "The wrongful act (actus reus in Latin) is the physical act committed by a person. The mental state (mens rea) is the person's guilty state of mind when committing the act. A crime requires a marriage of both factors."

The forum discussed how the 20^th century saw most states moving away from this standard. There has been an explosion of criminal laws being created, with many of them silent on intent.

Levin said most states have no easily available inventory of laws and that state and federal agencies are able to create rules with criminal penalties outside the legislative system. He noted that only 14 states have a default mens rea, meaning the government has to show that an individual knowingly or recklessly committed an offense if the statute is silent on intent.

As it is, in most states, the government can lock people up even if it is clear they did not know the law and no actual harm was done.

Larkin said that criminal laws historically were to address intentional bad conduct, which was easily known by most people. He said the number of laws and regulations today is "incalculable."

"Traditionally, people could know what a crime is without consulting a lawyer," Larkin said. "That's no longer the case."

For example, it is illegal in Michigan to transport a Christmas tree without a receipt, Levin said.

The primary victims committing crimes unknowingly are individuals and small firms that don't have someone on hand for legal advice, Larkin said.

Larkin proposed one solution that could easily be done.

"[If they are prosecuted, we should] allow defendants to claim, and show, that no reasonable person could conclude something was illegal," he said. "It's one statute … that would solve a lot of problems.”

Levin agreed and suggested Michigan adopt a "default mens rea" law, eliminate the ability for government agencies to create new criminal laws, and prohibit arrest for regulatory misdemeanors.

He also suggested a commission that would "identify criminal laws that are unnecessary, duplicative, overbroad, excessively vague, lacking an appropriate culpable mental state, create vicarious liability, or otherwise deficient, and incorporate their work into one bill."

Similar work has been endorsed by groups from across the political spectrum, including the American Civil Liberties Union, the National Association of Defense Attorneys, the Heritage Foundation and the American Legislative Exchange Council. ALEC has some suggested legislation for states, the “Criminal Intent Protection Act.”

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A video replay of the event: