Editor's note: Gov. Rick Snyder has signed House Bill 4713 since this blog was first posted. It is now Public Act 250 of 2015.

The Michigan Legislature unanimously passed House Bill 4713 this week. The bill provides legal protections for individuals by clarifying how certain crimes may be prosecuted.

The problem of overcriminalization at the state and federal level is well-documented. The number of criminal laws increases each year, and, in a troubling development, the use of severe criminal sanctions for regulatory violations is becoming more common. In Michigan alone, more than 3,100 criminal prohibitions can be found in state statutes, with many other penalties promulgated through administrative regulations.

HB 4713 addresses criminal statutes that fail to require a culpable mental state for the conviction of the crime. The culpable state of mind (“mens rea” in Latin) is often indicated in statute as “intentionally,” “knowingly,” or “recklessly.” These are the mental states of the accused that the prosecution needs to demonstrate in order to convict.

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In the last several years, legal scholars and commentators have identified a trend of legislatures omitting mens rea provisions from criminal statutes. Congress and states have proliferated strict-liability crimes, which allow a person to be convicted of a crime regardless of his or her state of mind. Regulating behavior through strict liability can be especially harmful when an act is criminalized that most people would not necessarily recognize as criminal behavior.

An analysis conducted by the Mackinac Center suggests that 26 percent of felonies and 59 percent of misdemeanors lack an adequate mens rea provision. When a statute lacks this, Michigan courts are left to decipher what the Legislature intended to enact with regards to the required state of mind needed for a conviction, often resulting in costly and time-consuming litigation. Or, courts must assume that legislators meant for the crime to be a strict-liability one, where the defendant’s state of mind is irrelevant.

The Mackinac Center has stressed the importance of a default mens rea standard in instances where the statute is silent on intent. HB 4713, sponsored by Rep. Ed McBroom, R-Vulcan, and also championed by Sen. Mike Shirkey, R-Clarklake, does just that. The bill ensures that:

  • A person can only be convicted of a criminal offense if the person acted with the requisite degree of culpability;
  • The Legislature can continue to enact strict-liability crimes by explicitly indicating its intent to do so;
  • If a statute prescribes a culpable mental state but does not specify the element of the crime to which it would apply, the prescribed state applies to each element of the crime;
  • If a statute fails to prescribe a culpable mental state and the Legislature has not imposed strict liability, the default mental state is “recklessness;”
  • Several chapters of the Michigan Compiled Laws are exempted from the new default, but the bill is directed at hundreds of the most harmful regulatory crimes that can entangle well-meaning individuals and small business in criminal prosecutions.

This reform means that the criminal law can be used more prudently to penalize truly blameworthy behavior. Too often, otherwise law-abiding and well-meaning individuals are caught in the criminal justice system for an unlawful act that most people would not consider to be criminal behavior.


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