Concerns with Inadequate Mens Rea Provisions

As discussed above, it is quite common for Congress and legislatures to be silent on the issue of intent when enacting new criminal statutes. Many concerns accompany the erosion of criminal intent provisions.

The purpose of the mens rea doctrine was to punish criminally culpable behavior.[*] The proliferation of public welfare offenses, however, increases the possibility that well-intentioned citizens unwittingly break the law. Additionally, as will be shown below, public welfare offenses often regulate and criminalize behavior that would be otherwise unobjectionable, but for the regulatory prohibition. Individuals can incur great damage financially and upon their reputations due to the sanctions associated with a criminal conviction.[29]

Inadequate mens rea provisions also result in a vague criminal code, granting prosecutors and the courts a great deal of discretion and creating the potential of inconsistent application. As detailed in Appendix A, numerous cases have required litigation to the state’s highest court because the Legislature failed to state its intent explicitly as it related to mens rea in criminal statutes. The time and expense required of the state and of criminal defendants to clarify legislative intent is not insignificant.  

Criminal law retains a potency when it regulates truly objectionable behavior. Society risks a breakdown in the rule of law and the respect for it when routine and otherwise moral behavior is penalized with criminal sanctions. As Dr. John C. Coffee Jr, a Columbia University Law School professor, has written: 

The factor that most distinguishes the criminal law is its operation as a system of moral education and socialization. The criminal law is obeyed not simply because there is a legal threat underlying it, but because the public perceives its norms to be legitimate and deserving of compliance. Far more than tort law, the criminal law is a system for public communication of values.[30]

Scores of Michigan statutes are silent on the mens rea element for misdemeanors and felonies. A brief review illustrates the variety and scope of public welfare offenses.

A person who breeds ferrets as a hobby must comply with detailed regulations.[31] Ferrets must be housed indoors, in ventilated areas with minimal drafts and odors, and the temperature must be set to prevent any ferret “discomfort.” Lighting in the cage area must be “ample.” Each ferret must be given a minimum of two square feet of cage space and bedding must be “appropriate for the season.” Food provided a ferret must be “wholesome and of sufficient quantity and nutritive value to maintain all ferrets in good health.” A person who violates the rules of ferret care is guilty of a misdemeanor, punishable by imprisonment for up to 90 days, a fine of up to $1,000 plus prosecution costs, up to 120 hours of community service and permanent relinquishment of all animal ownership.[32]

Christmas revelers would be wise to keep their receipts from the local tree farm. A person may be guilty of a misdemeanor for transporting Christmas trees, evergreen boughs, Michigan holly and other plants without carrying a bill of sale. The law provides an exemption for the sale and transportation of two Christmas trees per person between November 30 and December 31 of the same year.[33]

Any person who purchases poultry for the purpose of reselling the domesticated birds must maintain detailed documentation of the transaction, including the date of each purchase, the name and residence of the seller, the type of poultry purchased with a description and tally. If the seller delivers said poultry by means of a licensed vehicle, the license number must also be noted. Failure to maintain the necessary paperwork is a misdemeanor, punishable by a $100 fine and up to 90 days in the county jail.[34]

Purchasing a vehicle on the weekend can be convenient, but buyers should exercise caution. It is unlawful for any person or corporation to engage in the buying, selling or exchange of new or used motor vehicles on Sunday. Similarly, car dealerships are not permitted to be open on Sunday. Violations are a misdemeanor, and dealers can face the suspension or revocation of their license upon conviction.[35]

An area of dense regulation is Michigan’s environmental and natural resources laws. The primary statute is the Natural Resources and Environmental Protection Act (NREPA), and it governs the management of state lands, air and water pollution, solid and hazardous waste disposal, wetland protection and other topics. Fines and imprisonment can be incurred for numerous violations: unpermitted removal of forest products from state lands;[36] improper disposal of litter produced at a health facility;[37] improper disposal of used motor oil;[38] improper disposal of scrap tires;[39] driving motor vehicles in a state wilderness area;[40] and removal of certain abandoned property on the bottomlands of the Great Lakes.[41]

A variety of other offenses can result in fines and imprisonment: Members of the Michigan Legislature who resign from office are prohibited from lobbying for the remainder of their term of office. A violation is punishable by a $1,000 fine and 90 days in prison.[42] Unlicensed dogs are to be located by the sheriff and destroyed, with the dog owner held accountable.[43] The national anthem may not be played as part of a medley, and dancing to “The Star Spangled Banner” is strictly prohibited.[44]

The conduct described above is but a sample of Michigan law that criminalizes behavior that could result in the application of strict liability. These are examples of statutes where the Legislature should indicate the level of intent necessary for culpability, but each of these statutes is silent on mens rea.

[*]  Dr. John S. Baker characterizes the common law crimes of murder, rape, robbery, burglary, larceny/theft as the “meat and potatoes” of criminal prosecutions. John S. Baker, “Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law,” July 19, 2013, accessed Nov. 20, 2013,