2. Create a Commission to Review the Criminal Law

Following, or concurrent with, the establishment of the legislative task force, the Michigan legislature could create an independent commission charged with consolidating, clarifying, and optimizing Michigan’s criminal statutes. Alternatively, the existing Michigan Law Revision Commission (MLRC), established in 1965 to “examine the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms,” could be delegated the charge.[93]

Such a commission’s first task should be an accurate accounting of all criminal offenses on the books in the state. Within that body of law, the commission should identify and recommend for repeal all unnecessary and overbroad laws[94] — a task that MLRC has undertaken in the past but one that needs further effort — including outdated laws, unutilized laws, and crimes needlessly duplicative of other offenses (such as specific crimes dealing with similar types of electioneering conduct at polling places[95] or the stealing of shrubs, bushes, and vines[96] already criminalized by the common-law crime of larceny). Additionally, the commission could evaluate whether penalties are proportionate to the crimes (e.g., whether the penalty for returning nonreturnable beverage containers[97] should be as severe as that of assault and battery).[98] Finally, the commission should evaluate the propriety of catchall provisions criminalizing the violation of large swaths of administrative rules,[99] as well as review existing mens rea provisions in Michigan law — recommending possible changes as necessary.

The creation of such a body is not unprecedented and has, in fact, been utilized by nearby states. In 2004, Illinois created a commission as part of its Criminal Law Edit Alignment and Reform (CLEAR) initiative in a long-term, bipartisan effort to thoroughly review and clean up its 300,000-word criminal code.[100] As a result, Illinois’s criminal code was reorganized, made easier to understand and reference, reduced in size by one-third, rid of redundancies and inconsistencies, and updated with mens rea protections where necessary.[101] Last year, Minnesota formed a team that helped identify for repeal 1,175 antiquated, unnecessary, and poorly drafted laws, including criminal laws, with a special focus on onerous regulatory provisions.[102] A bit farther away, in Kansas, an “Office of the Repealer” (created in 2011 by the governor)[103] has already recommended 51 statutes and regulations for repeal.[104]