II. Qualitative Assessment

Old crimes. Even as more crimes have been created in Michigan, there have only been sporadic efforts to rid the state’s laws of archaic existing crimes. Criminal offenses currently on Michigan’s books include:

  • Prohibiting endurance contests known as walkathons[38]
  • Entering a horse into a race under a false name[39]
  • Prohibiting the playing of “The Star-Spangled Banner” in public for dancing or as an exit march[40]
  • Prohibiting the shaming of a person for not accepting a challenge to a duel[41]

In addition, the state legislature has left on the books various “moral” offenses — some of questionable constitutionality[42] — such as prohibitions on cohabitation by divorced parties,[43] adultery,[44] teaching or advocating polygamy,[45] and seduction by a man of an unmarried woman.[46]

New crimes. A close examination of recently promulgated crimes reveals that they are often duplicative or unnecessary. For example, among the new crimes passed by the legislature in 2012 were:

  • Displaying any material containing the name of an elected official of Michigan at a polling site[47]
  • Improperly displaying an owner’s contact information on a barge[48]
  • Improperly keeping records of large purchases of plastic bulk-merchandise containers[49]

The prohibition of election material in a polling place rightfully aims to safeguard the integrity of the voting process but duplicates Michigan’s host of electioneering prohibitions on the books, including a broad ban on unofficial materials related to an election covering the very same conduct.[50] Record-keeping and contact-information display requirements are appropriate matters of state regulation, but whether violations in this area should be added to the criminal code is, at the very least, questionable (and especially doubtful in the case of a barge owner’s requirement to display contact information in a particular lettering type, color, and size).[51]

Criminal intent. Criminal statutes that fail to specify whether the state must establish that the defendant intended to commit an illegal act contribute to overcriminalization. Centuries of legal tradition have recognized that for a conviction to occur, a crime requires both a wrongful act (actus reus in Latin) and a culpable state of mind (mens rea). Not only does this principle protect the innocent, but it provides additional due-process protections against overaggressive prosecutions.

In the late nineteenth century, legislatures began enacting “public welfare” offenses as a regulatory response to industrialization — laws that imposed liability on the actor regardless of intent. For example, traffic laws, workplace regulations, and the sale of food and beverages imposed strict liability with the intent to promote social welfare and safety.[52] Because public welfare offenses omit the requirement that intent be established for a criminal prosecution, individuals can be convicted of crimes of which they were unaware through conduct that would be otherwise unobjectionable, apart from the regulatory prohibition.

Congress and state legislatures regularly enact public welfare offenses. For example, a 2010 joint report by the Heritage Foundation and the National Association of Criminal Defense Lawyers found that 57 percent of criminal laws proposed in the 109th U.S. Congress contained inadequate mens reaprovisions.[53]

Michigan displays a similar trend. An extensive 2014 analysis of Michigan criminal statutes conducted by the Mackinac Center for Public Policy found that hundreds of crimes have an inadequate or no mens rea provision. Michigan statutes contain at least 3,102 crimes: 1,209 felonies and 1,893 misdemeanors.[54] Of these, 321 felonies (27 percent of all felonies) and 1,120 misdemeanors (59 percent) contain no mens rea provision.[55]

The remaining crimes require a hodgepodge of mental states on the part of the accused, including that the person acted “willfully,” “intentionally,” “knowingly,” “recklessly,” “maliciously,” “with the intent to,” or some combination.[56] Little indicates that this patchwork of mental states required for various crimes is the product of considered deliberation; rather, it is likely a product of ad hoc decision making by different drafters of these laws. Examples of crimes that fail to define an intent element include:

  • Improperly disposing of scrap tires[57]
  • Driving motor vehicles in a state wilderness area[58]
  • Purchasing a new or used motor vehicle on the weekend[59]
  • Transporting Christmas trees without a bill of sale[60]

When the legislature does not explicitly state an intent standard in a criminal offense, Michigan courts have adopted the practice of evaluating whether amens rea requirement should nevertheless be inferred. While the Michigan Supreme Court has indicated that it does not favor strict-liability crimes, the court maintains that the legislature may decide to penalize certain acts, irrespective of the person’s intent.[61] When a statute codifies a common-law crime (such as murder or theft), the courts assume a mens rea standard.[62] For other crimes that are silent on intent, the courts look to the language of the statute and the legislative history to determine whether the legislature meant to create a strict-liability crime.[63]

Imprecise legislative drafting and judicial efforts to infer legislative intent have resulted in expensive litigation and lengthy appeals to determine what standard of intent should be applied at trial. Worse, unclear intent requirements jeopardize the personal liberty and livelihood of individuals who conduct themselves in a decent fashion, without criminal intent, but who are nevertheless in danger of prosecution.

Regulatory crimes. Although many new crimes on the books enacted by statute are regulatory in nature, a substantial number of crimes are created with no act of the legislature whatsoever. As previously mentioned, various statutes contain catchall provisions that vest in administrative state and local agencies authority to criminalize conduct through their own promulgation of regulations.[64]

An individual who violates any provision of Michigan’s public health code is guilty of a misdemeanor and can also be prosecuted for a violation of “a rule promulgated under this code, or a local health department regulation [emphasis added].”[65] The state’s agriculture, occupational, and environmental codes are riddled with catchalls not only criminalizing the violation of any legislative provision within the various parts of acts but also violations of any rules promulgated, orders issued, or operational standards developed by myriad departments, commissioners, directors, or commissions.[66]

Michigan’s environmental and natural resources laws — largely codified in the Natural Resources and Environmental Protection Act (NREPA)[67] — are densely packed with catchalls criminalizing sometimes hyper-technical regulatory requirements concerning the management of state lands, air and water pollution, solid and hazardous waste disposal, wetland protection, and other areas.[68]

Protecting the environment and natural resources in Michigan with strong rules and regulations is an important government responsibility, but the blanket criminalization of certain matters — such as the failure to surrender a fishing license within a prescribed time span;[69] ensuring the proper type, size, and color of letters on a barge identification;[70] or properly displaying a livery boat’s maximum carrying capacity[71] — needlessly poses a danger to the state’s residents and businesses. Many of these catchall provisions — granting agencies, heads of agencies, and various commissions effective authority to create new criminal offenses — do not contain criminal-intent standards, despite the fact that much of the conduct prohibited under Michigan’s regulatory code is unlikely to be intuitively criminal.