It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.
—James Madison, The Federalist, No. 62

For the aforementioned reasons, it is certain that many Michiganders unknowingly commit crimes every day. Underlying the argument against overcriminalization is the fact that modern criminal codes, such as Michigan’s, have expanded so exponentially in recent decades that an ordinary person can no longer be assumed to know whether certain conduct is legal — unless advised by the armies of lawyers so common in modern large corporations.[72]

Even if each new crime were enacted with the best of intentions, careful consideration is rarely given to how a new crime would fit into the current criminal-law framework, how — or whether — it would be prosecuted, and what risks the new offense would pose to innocent individuals. Consequently, unnecessary laws pile up (old crimes are rarely pruned from the books), eroding the integrity and logical cohesion of the criminal-justice system, as laws on the books go unused and unenforced.[73]

At the heart of the Anglo-American criminal-justice system is the principle that an individual charged with a crime should be provided fair and adequate notice of the conduct deemed criminal.[74] A corollary principle, that ignorance of the law is not a legitimate excuse,[75] traces to a time when virtually all criminal laws were tied to the “moral code”[76] — including clear societal violations such as murder, assault, or robbery — for which the risk of being unknowingly ensnared by the criminal law was exceedingly low.

In addition, as a general rule, innocent individuals were historically protected by intent requirements: traditional common law required a crime to involve not only a prohibited act but also the intent to commit that criminal act (actus rea and mens rea, respectively).[77] In short, the requirement that a criminal act be knowingly committed, not accidental, prevents the innocent from being unjustly targeted by criminal law.

To be sure, the most dangerous consequences of overcriminalization are mitigated by the discretion that prosecutors exercise when deciding whether, or in what manner, to prosecute a crime. In fact, legislators often rely heavily on the judgment of prosecutors, thereby passing overly broad criminal statutes, confident that no injustice will result.

Yet even if all prosecutors faithfully and judiciously execute their duties, reliance on prosecutors as an exclusive backstop to protect the innocent creates, at minimum, serious risk of wide variance in treatment across jurisdictions. And — to the extent that law-enforcement officials and prosecutors pay attention to the plethora of regulatory crimes in states with criminal codes like Michigan’s — the enforcement of such crimes diverts scarce resources from the enforcement of serious violent and property crimes with real victims.

Of course, blithely assuming that prosecutorial discretion is a reliable check on sweeping, inarticulate criminal laws is a perilous proposition — especially when considering the potential deprivation of individual liberty, disruption of life, and marring of reputation that criminal prosecution can entail.[78] At the federal level, for instance, prosecutorial discretion did not prevent absurd convictions, such as a fisherman convicted of violating a post-Enron, anti-document-shredding statute for destroying three fish;[79] a Florida seafood importer sentenced to an eight-year prison sentence for transporting lobsters in plastic bags, rather than in cardboard boxes (as required by Honduran regulations);[80] or an engineer who pleaded guilty for diverting a backed-up sewage system into an outside storm drain to prevent flooding at a retirement home.[81]

Michiganders, too, have found themselves lost in their state’s labyrinthine criminal-law regime. Consider the case of Kenneth Schumacher. In 2003, Schumacher delivered scrap tires to a facility that he believed to be a legal depository — only to be subsequently prosecuted for unlawfully disposing of them because the facility lacked a license.[82] In 2007, a Michigan appeals court upheld his conviction for the unlawful disposal of scrap tires, including a sentence of 270 days in jail and a $10,000 fine, because it determined that Schumacher’s subjective judgment that his delivery was legal did not absolve him of the environmental law’s strict licensing rule.[83]

More recently, pig farmers in Michigan suddenly found themselves potential felons after the Michigan Department of Natural Resources issued a vague interpretive ruling to add certain types of pigs to its list of “prohibited species”[84] — with violations potentially resulting in a felony conviction, two years in jail, and $20,000 in fines.[85] Without any legislative action, deliberation, or analysis, a regulatory agency was able to disrupt an entire industry with a vague rule requiring pig farmers to bring pictures of their pigs to the Department of Natural Resources to let government workers decide, on a case-by-case basis, whether each pig complied with the new rule.[86] A circuit court has declared the agency action unconstitutional, leaving Michigan hog owners momentarily relieved as they await the state’s appeal.[87]