Mackinac Center partners with ACLU, others
The Mackinac Center is one of several groups hoping to save the state millions and increase the freedom of Michiganders by implementing common sense criminal justice reforms.
Focusing on the problem of overcriminalization (Michigan has over 3,100 crimes on the books), the Mackinac Center has pushed for reforms that would cut the number of crimes and limit the liability of people who unknowingly break them. Executive Vice President Mike Reitz recently discussed the recommendations on a panel in Lansing, covered by MLive:
Michael Reitz, executive vice president of free-market think tank Mackinac Center for Public Policy, said that over the years the legislature has over-criminalized actions that do not actually put the public at risk. He pointed to efforts to repeal old laws and a new focus on criminal justice issues.
The full article is available at MLive's website.
On Sept. 22, Mackinac Center Director of Research Michael Van Beek joined Frank Beckmann on WJR to discuss overcriminalization. A recording of that segment is available on their website.
Bills on forfeiture working through legislature
Civil asset forfeiture — the process of law enforcement confiscating money or possessions from civilians without charging them with a crime — has become an enormous problem in Michigan. The Institute for Justice has ranked Michigan's civil asset forfeiture laws among the worst in the country, but a package of bills in the legislature could help fix them.
Mackinac Center Policy Analyst Jarrett Skorup recently joined radio personality Steve Gruber on WJIM to discuss the process of civil asset forfeiture and how to make the system better for Michiganders.
For more information on civil asset forfeiture, visit www.mackinac.org/forfeiture.
True freedom, information, and action?
“This is just a modernization of Michigan's FOIA Act — long overdue — to provide some additional standardization and transparency.” – State Sen. Mike Shirkey
Michigan’s Freedom of Information Act, passed in 1976 in the wake of the Watergate scandal, is meant to improve public access to government documents.
Sadly, the law has fallen behind the times and needs to be revised to better suit today’s new technologies and societal practices. The law still operates as if the communication and storage methods of 1976 were still widely used. For example, public agencies do not fully take advantage of online databases or e-filing methods.
While FOIA law has been revised roughly a dozen times since its inception, a reform enacted in 2014, Public Act 563 of that year, brought significant changes including clearer standards on the fees that public agencies may charge in response to FOIA requests. Previously, there were only weak limits on how much Michigan public agencies were allowed to charge to fulfill a FOIA request. This left the door open for abuse; public agencies could overcharge on shipping, handling, and research fees.
For instance, the Mackinac Center’s Michael LaFaive submitted a FOIA request in March 2015 to the Michigan Liquor Control Commission. The commission’s response to LaFaive was that he would have to pay approximately $1,500 – in other words, 25 cents per page – for processing and copying fees for pages of a report that did not exist in a hard copy format.
The commission eventually relented when the Mackinac Center Legal Foundation sued. Senior Attorney Derk Wilcox of the Mackinac Center Legal Foundation said, “Taxpayers have a right to this public information. They should not be charged exorbitant amounts of money for documents that are rightfully theirs, nor should they be charged for virtual copies of public documents.”
Revisions to the law, which went into effect on July 1, 2015, reduce the likelihood of government agencies levying excessive fees, as they are now not allowed to charge more than 10 cents per sheet of paper.
Additionally, the Legislature mandated new fines on agencies that willingly and intentionally withhold information from requesting parties. Penalties range from $2,500 to $7,500 and are paid to the state.
People who believe they were overcharged for information can file a petition with a court. If the court decides that the public agency overcharged the inquiring party, the agency must pay up to $1,000 in punitive damages.
Finally, PA 563 limits the labor charges that a government office may impose, as it cannot “charge more than the hourly wage of its lowest-paid employee capable of searching for, locating, and examining the public records.”
This act clarifies the fee structure of FOIA requests, as well as addresses fee-related procedures of the law that have been long abused or ignored. This is a great start to modernizing the Freedom of Information Act to ensure transparency within the government and lower costs for the governed.
App reaches 50,000 downloads
VoteSpotter, an app created by the Mackinac Center, is making it easier for voters to hold their representatives accountable every day. Project Director Andrew Koehlinger recently joined Frank Beckmann to discuss the app's capabilities and growth. A recording of that discussion is available here.
To keep tabs on your elected representatives at the state and national level, download VoteSpotter free for iOS or Android at www.VoteSpotter.com.
Balanced budget amendment, government “jobs for life,” preschool spending
Now with one click you can approve or disapprove of key votes by your legislators using the VoteSpotter smart phone app. Visit votespotter.com and download VoteSpotter today!
Senate Bill 306, Authorize joining Balanced Budget Compact: Passed 26 to 11 in the Senate
To authorize Michigan’s membership in a “Compact for a Balanced Budget.” This would use the device of a multistate compact to submit an application to Congress calling for an Article V "convention to propose amendments to the U.S. Constitution," limited to proposing an amendment prohibiting Congress from increasing the national debt unless a majority of state legislatures approve.
Senate Bill 281, Repeal 36th district court bailiff's "job for life" law: Passed 67 to 36 in the House
To allow a bailiff of the 36th district court to be dismissed for inability to do the job. This is the former Detroit “Recorders Court,” and the law that replaced it with the 36th district court permitted the current bailiffs to keep their jobs for life and not be replaced except for malfeasance, even if the individual is no longer capable of doing the job.
Senate Bill 134, Spend more on government preschool programs: Passed 99 to 2 in the House
To authorize spending an additional $4.35 million on government preschool programs in the fiscal year that begins Oct. 1.
SOURCE: MichiganVotes.org, a free, non-partisan website created by the Mackinac Center for Public Policy, providing concise, non-partisan, plain-English descriptions of every bill and vote in the Michigan House and Senate. Please visit http://www.MichiganVotes.org.
Prepared Testimony Regarding House Bill 4713, House Oversight and Ethics
Editor's Note: the following is a transcript of testimony on House Bill 4713 given by Mackinac Center Executive Vice President Michael Reitz before the House Oversight and Ethics Committee on Sept. 17, 2015. Video of his testimony is available via House TV; Reitz's testimony begins at 18:00.
Mr. Chair and Members of the Committee, thank you for the opportunity to appear before you to comment on House Bill 4713.
The Mackinac Center has published a number of studies and commentaries on the problem of overcriminalization in Michigan. That is, the ever-increasing number of criminal laws and the trend of using severe criminal sanctions for regulatory purposes.
HB 4713 addresses an aspect of overcriminalization: criminal statutes that fail to specify a culpable mental state for the conviction of the crime. Traditionally, for a person to be convicted of a crime, it must be shown that the accused committed an unlawful act and did so with a guilty state of mind. The culpable state of mind is often indicated in statute as “intentionally,” “knowingly,” or “recklessly.”
This combination of the guilty act and the guilty mind helps differentiate a person’s culpability. As Oliver Wendell Holmes Jr. observed, “Even a dog distinguishes between being stumbled over and being kicked.” U.S. Supreme Court Justice Robert Jackson described blameworthiness in this manner: “Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.” (Morissette v. U.S., 342 U.S. 246 (1952)).
Legal scholars have noted a disturbing trend, however, of crimes that are silent on the defendant’s state of mind. This has resulted in a proliferation of strict-liability crimes, where a person could be convicted of a crime even if he were unaware that the conduct is illegal. Strict-liability crimes are frequently used to regulate behavior that falls outside of the common understanding of what constitutes criminal behavior.
HB 4713 is a needed reform in Michigan. The state has more than 3,100 criminal offenses in statute, with an average of 45 new crimes enacted every year. Our analysis indicates that 26 percent of felonies and 59 percent of misdemeanors lack an explicit description of the mental state necessary for a conviction.
The Michigan Supreme Court has wrestled with the problem of interpreting vague criminal statutes. In a 2014 opinion, Justice Stephen Markman recommended that the Legislature adopt the reforms that HB 4713 contemplates. Justice Markman wrote:
It is the responsibility of our Legislature to determine the state of mind required to satisfy the criminal statutes of our state, and the judiciary is ill-quipped when reviewing increasingly broad and complex criminal statutes to discern whether some mens rea is intended, for which elements of an offense it is intended, and what exactly that mens rea should be.
(Order, People of Michigan v. Taylor, No. 145491 (Jan. 31, 2014) (Markman, J., concurring).)
I respectfully suggest the following improvements to HB 4713:
- Sec. 3 indicates that when a criminal offense neither specifies culpability nor imposes strict liability, the offense is established “only if a person acts with intent, knowledge, or recklessness.” Sec. 3 should specify a default culpable mental state – either “intent,” “knowledge,” or “recklessness” – in order to avoid asking the courts to determine the appropriate standard in a criminal offense that is silent on intent. The default mens rea standard should be fixed at a level higher than mere negligence.
- Sec. 2 ensures that the Legislature may create strict-liability crimes, so long as the Legislature plainly expresses its intent to do so. This is appropriate; I would suggest the language be strengthened by amending Sec. 2, lines 2-3 to read: “…not specify any degree of culpability and plainly indicates a purpose to impose strict criminal liability…”
- Sec. 2 could also be improved by adding: “The mere absence of a specified state of mind for an element of a covered offense shall not be construed to mean that the Legislature affirmatively intended not to require the prosecution to prove any state of mind with respect to that element.”
- HB 4713 addresses criminal offenses that have already been enacted into law. It should also address the appropriate mens reaprovisions prospectively in the enactment of new criminal offenses. As the bill is currently written, the Legislature could conclude that it is unnecessary to specify the appropriate criminal intent standard in new crimes, especially if those crimes are codified in the chapters that are exempted by Sec. 7. The Ohio Legislature recently adopted the reforms contemplated in HB 4713. Relevant language stated:
- (A) Every act enacted on or after the effective date of this section that creates a new criminal offense shall specify the degree of mental culpability required for commission of the offense. A criminal offense for which no degree of mental culpability is specified that is enacted in an act in violation of this division is void.
- (B) Division (A) of this section does not apply to the amendment of a criminal offense that existed on the effective date of this section, but it does apply to a new criminal offense added to a statute that existed on the effective date of this section.
ORC Sec. 2901.20.
- In order to avoid confusion that could lead to litigation, HB 4713 should state explicitly that the Legislature intends that the bill apply to criminal statutes that were enacted before the effective date of the act (with the exception of chapters listed in Sec. 7).
Thank you for the opportunity to submit these remarks.
MEA's "August Window" ruled illegal by commission
For years, the Michigan Education Association has held that members may only resign from the union in August, a policy commonly known as the August Window. The Mackinac Center Legal Foundation has fought against this policy, arguing that it violates the rights of union members.
Earlier this month, the Michigan Employment Relations Commission upheld the decision of a lower court ruling the August Window illegal. The MEA is expected to appeal this decision when the commission releases the full written explanation next week.
The Detroit Free Press wrote about the decision on Sept. 17:
The ruling could bring an end to a two-year fight by four Saginaw teachers — who had legal help from the Mackinac Center Legal Foundation — who wanted to leave the union. An administrative law judge made the initial ruling last year, but the MEA appealed. The Michigan Employment Relations Commission (MERC) upheld that decision today.…
"The MEA should stop trying to ruin teachers' credit and should stop collections immediately on those who do not want to be part of the MEA," Patrick Wright, director of the Mackinac foundation, said in a news release. "These teachers simply want to decide for themselves which organizations they want to be a part of and which ones they want to support."
Several other media outlets have covered this victory for workers' rights, including The Detroit News, WILX, ABC 12, WDIO, the Mining Gazette and WOOD-TV. Wright also spoke with Frank Beckmann of WJR on Sept. 18; a recording of their discussion is available here.
The future of the UAW members under right-to-work
The UAW contract with Ford, General Motors and Fiat Chrysler expired on Sept. 14, giving employees in Michigan their first opportunity to resign from the union since the passage of right-to-work in 2012.
Mackinac Center Director of Labor Policy F. Vincent Vernuccio and Terry Bowman, an employee of Ford and founder of Union Conservatives, authored an op-ed in the Wall Street Journal Sept. 16, examining reasons why workers might choose to leave the UAW and the future of the union in the coming years:
Other issues have nothing to do with wages or the collective-bargaining process. Instead, they are wounds the UAW inflicted on itself. Union officials, in a move that angered many workers, increased membership dues by 25% in 2014. Workers now pay dues worth 2½ hours of work every month, the first increase of its kind since 1967.…
However, it may not all be doom and gloom for the UAW. Now that it will have to compete for a worker’s loyalty and prove its value to potential members, the union could emerge better equipped to do what it was originally created for — represent the best interests of all workers.
The full op-ed can be read at the Wall Street Journal website.
Many laws now work against well-meaning citizens
Michigan statutes contain an estimated 3,102 crimes. That number far outstrips that of our neighboring states, as well as that recommended by the Model Penal Code, a seminal resource developed by the American Law Institute to help states codify American criminal law. The quantity and complexity of crimes on our books is so great that a reasonable citizen could not hope to understand most of them, let alone be accountable for knowing and complying with all of them. However, Michigan legislators are taking important steps towards ensuring that our criminal law functions in a sensible and predictable manner.
Centuries-old American legal traditions hold that a crime has not occurred unless there is proof of both a wrongful act (actus reus) and a culpable mental state (mens rea). However, 27 percent of Michigan felonies and 59 percent of state misdemeanors contain no mens rea provision. Hundreds of years ago, criminal statutes might have been silent on the subject of criminal intent because it was supposed that every person possessed an inherent understanding of right and wrong by virtue of their humanity. Today, a law with no intent requirement is called a “strict liability offense.” In a highly technical, rapidly evolving, and heavily industrialized society, strict liability offenses make it easy to circumscribe behavior and prosecute noncompliance with myriad rules, regulations and operational standards. This can be good for the public welfare, but it is problematic for the administration of justice in two ways. First, these crimes make it impossible for the average person to understand the law without the help of an expensive legal expert. Second, laws without intent requirements put offenders at the mercy of prosecutorial discretion, resulting in unpredictable judicial outcomes.
There are many instances in which these flaws in our law have worked against well-meaning Michiganders. In one case from 2003, a man named Kenneth Schumacher delivered scrap tires to what he believed to be a legal depository. Unbeknown to him, the facility lacked a license — which was no defense when he was subsequently prosecuted for the strict liability offense of the unlawful disposal of scrap tires. He was convicted, and when his appeal was finally decided four years later, the court upheld his conviction and a sentence of 270 days in jail and a $10,000 fine. This is an example of what can happen when our legislature criminalizes activities without specifying the culpable mental state.
HB 4731 and SB 20 would address these issues by enacting a default mens rea standard, a feature that 14 other states have already incorporated into their laws. While it would still be possible for legislators to write strict liability offenses, they would have to do so explicitly. The default would apply whenever intent requirements are absent, so that citizens would no longer have to assume that they will be held strictly liable for unknowingly breaking the law. This is an important step toward achieving a just, uniform and coherent body of criminal laws that identify crimes and impose criminal liability appropriately.
Discussing Scott Walker's labor reforms
The Washington Examiner recently published an article discussing Wisconsin Gov. Scott Walker's labor credentials and plans for moving forward on labor policy as a presidential candidate. Gov. Walker has a history of sweeping reforms in his home state, which are now prompting discussion on a national level.
Mackinac Center Director of Labor Policy F. Vincent Vernuccio spoke with the Washington Examiner on the topic:
Reforms to labor laws that were thought to be political suicide just a few years ago are now seen as possible, partly because of Walker's own success. That has given the governor the incentive to be bold and do what he had been thinking of doing all along.
"Taking on labor reform, especially in the Midwest, was thought to be a third-rail issue — touch it and die. Walker proved that the unions' bark was worse than their bite," said Vincent Vernuccio, a lawyer with the Mackinac Center for Public Policy, a conservative nonprofit in Michigan that focuses on labor issues. "Walker is seeing what is politically feasible and is taking it to the next level."
The full article is available at the Washington Examiner's website.