Legislature Examines Overcriminalization

Two bills propose solutions to criminal intent problem

On Oct. 27, the Michigan Senate Judiciary Committee met in Lansing for a hearing on two bills that address an aspect of overcriminalization that has been the subject of many Mackinac Center studies and commentaries, namely, the failure of criminal statutes to specify a culpable mental state for the commission of a crime. The bills were Senate Bill 20, sponsored by Sen. Mike Shirkey, R-Clarklake, and House Bill 4713, sponsored by Rep. Ed McBroom, R-Vulcan.

In their current versions, SB 20 and HB 4713 take different tacks in reversing the trend of passing criminal laws that remain silent as to a defendant’s state of mind. (The committee is considering substitute language but has not taken action yet.) HB 4713 would apply one of three default intent standards (“purposely,” “knowingly” or “recklessly”) to existing and future laws, working retroactively to immediately change the way alleged criminals are prosecuted. This bill exempts several sections of Michigan law from being subject to this default standard, including the health code, the vehicle code and the penal code.

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SB 20 calls for the enactment of a default “knowingly” intent standard. It would apply to legislation enacted after Jan. 1, 2016, and does not exempt any portion of Michigan law from modification under this new rule. This means the state would need to demonstrate that a person knowingly violated the law in order to convict them of a crime, unless the Legislature specified a stricter intent standard for that particular crime.

Both bills represent an improvement to a disturbing trend that the Mackinac Center has highlighted since 2013, and each contains provisions worthy of support. While HB 4713 boasts more immediate impact than SB 20 due to its retroactive operation, SB 20 specifies a single mental state — “knowingly” — that would not require the courts to determine an appropriate standard. (Both bills correctly fix the standard at something higher than mere “negligence.”)

It should be noted that the large exemptions that HB 4713 carves out do not necessarily render it meaningless. The exempted sections of Michigan law are ones that, according to our assessment, tend to contain fewer provisions that fail to specify criminal intent. The default would amend true problem areas, such as Michigan’s large volume of often highly technical administrative rules and regulations. Mackinac Center Executive Vice President Michael Reitz offered a complete commentary on HB 4713 during legislative testimony last month.

The bills under consideration represent important action on the problem of overcriminalization in Michigan. A default intent standard would reduce the chance that individuals could be prosecuted for crimes they unknowingly commit, allowing law enforcement to focus limited resources on violent and property crimes. Given the crime levels and fiscal constraints in many of our urban areas, this clarified law and renewed focus can’t come too soon.


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