Unlike most traditional crimes, regulatory and licensing offenses in Michigan don’t generally require individuals to understand that their actions were illegal.
In 2009, Michigan resident Lisa Snyder gained national media attention after the state’s Department of Human Services alleged that, in assisting her neighbor’s children board the school bus in front of her house each morning, free of charge, she was guilty of a misdemeanor crime for operating an illegal day care in violation of state regulations. Her local legislator, now–lieutenant governor Brian Calley, spearheaded a legislative fix that helped her avoid prosecution, but many other individuals and small businesses in the Wolverine State have been placed in legal jeopardy by the state’s sweeping criminal laws. These include a man who unknowingly ran afoul of state environmental regulations for disposing spare tires and pig farmers who suddenly found themselves potential felons after the state’s Department of Natural Resources issued a vague interpretive ruling prohibiting the farmers from owning much of their livestock.
Unlike most traditional crimes, regulatory and licensing offenses in Michigan do not generally require an individual to understand that his actions were illegal. Most individuals, moreover, would have little way of knowing that their actions were illegal: thousands of crimes are on the books in Michigan, the number of crimes has been growing annually, and any violation of the state’s voluminous regulatory code — including those dealing with public health, agriculture, and the environment — is a criminal offense, notwithstanding that such regulations are promulgated without legislative action.
At the federal level, the trend toward overcriminalization has drawn the attention of Congress and judges. In recent years, scholars at the Manhattan Institute and elsewhere have examined the increase in “regulation by prosecution,” in which the criminal law is used as a tool to punish ordinary business practice. Although there is “wide consensus” among scholars that the explosive growth of criminal law is problematic, most ordinary citizens remain unaware that they are likely guilty of many criminal offenses — or suspect that they will never be prosecuted.
Most attention placed on overcriminalization to date has focused on federal crimes; however, most criminal prosecutions occur at the state level. Some scholars have argued that — contrary to the federal trend toward expanding the criminal law — states, on balance, may be “moving towards less criminalization rather than more.”
To study the extent to which states have followed the federal trend toward overcriminalization, the Manhattan Institute has begun to look at the evolution of some states’ criminal laws in detail. In May 2014, coauthors Copland and Gorodetski published a primer on the subject, examining North Carolina. The present issue brief, authored jointly with Michael Reitz of the Mackinac Center, is the second in the series.
Michigan’s criminal code contains more than eight times the number of sections found in the Model Penal Code, a document drafted by the American Law Institute (an independent group of lawyers, judges, and academics) to “assist legislatures in making a major effort to appraise the content of the penal law by a contemporary reasoned judgment” — and significantly more than neighboring states Ohio, Illinois, and Wisconsin. Moreover, Michigan’s legislature has been expanding the reach of its criminal law, adding more than 45 new criminal offenses to the books annually, on average, from 2008 through 2013. Almost half of these new offenses are felonies, and almost three-fourths are codified outside the state’s penal code.
Even as Michigan’s legislature has been adding new crimes to the books, it has also tackled some criminal-justice reforms intended to lighten the criminal law’s fiscal burden. (In Michigan, one out of every five state general fund dollars is spent on corrections.) In June 2013, the state launched a Justice Reinvestment Initiative, with a specific focus on its felony sentencing guidelines. Nevertheless, there has been little legislative effort, to date, to assess the criminal-law reach of the state’s regulatory code and its impact on the state’s economy and business development.
This issue brief looks at overcriminalization trends in Michigan, quantitatively and qualitatively, and proposes various avenues for reform. Section I looks at Michigan’s criminal code quantitatively — including the number and rate of creation of crimes, how Michigan compares with its neighbors, and how the legislature has been reforming the criminal law in the sentencing context. Section II looks at Michigan’s criminal law more qualitatively — including outdated criminal provisions, redundant new crimes added to the books, the broad array of crimes “without intent” under Michigan law, and various regulatory mechanisms through which new crimes are enacted. Section III assesses the policy implications of overcriminalization and makes recommendations for reform.