See, e.g., Reining in Overcriminalization: Assessing the Problem, Proposing Solutions: Hearing Before the H. Subcomm. On Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. (2010).
See, e.g., Alex Kozinski & Misha Tseytlin, You’re (Probably) a Federal Criminal, in In the Name of Justice 43–56 (Timothy Lynch ed., 2009).
See, e.g., Marie Gryphon, It’s a Crime?: Flaws in Federal Statutes That Punish Standard Business Practice, Civ. Justice Rpt. 12 (Manh. Inst. for Pol’y Res., 2009), available athttp://www.manhattan- institute.org/html/cjr_12.htm; James R. Copland, Regulation by Prosecution: The Problem with Treating Corporations as Criminals, Civ. Justice Rpt. 13 (Manh. Inst. for Pol’y Res., 2010), available athttp://www.manhattan-institute.org/html/cjr_13.htm; Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703 (2005).
Stephen F. Smith, Overcoming Overcriminalization, 102 J. Crim. L. & Criminology 537, 537 (2012).
The Manhattan Institute’s Center for Legal Policy endeavors to examine the scope of, and trends in, the criminal law across several states. To compare findings across such states as it builds a portfolio of research, these reports — including those on Michigan and North Carolina — will follow a template format utilizing the same methodology for analysis, section organization, and, in some cases, text. Accordingly, some language in this report is identical to that published in a previous Manhattan Institute publication in this series, Overcriminalizing The Old North State: A Primer and Possible Reforms for North Carolina, Issue Brief 28 (Manh. Inst. For Pol’y Res., May 2014), http://www.manhattan-institute.org/html/ib_28.htm. The Mackinac Center has contributed significant original research and analysis, most specifically in, but not limited to, the Criminal Intent section of this brief.
By the count of the Manhattan Institute’s coauthors. Any error in the calculation of new crimes between in 2008–2013 are those of the Manhattan Institute’s coauthors alone and should not be attributed to co-author Michael Reitz or the Mackinac Center.
The estimated calculation was compiled by the Mackinac Center by reviewing criminal statutes, the Michigan Prosecutors’ Association Warrant Manual, and information provided by Michigan House of Representatives staff.
The number of sections in the code does not necessarily comport with the number of crimes: there can be multiple crimes in a single section (such that the section count is underinclusive of the number of crimes), and there can be crimes created in one section with various other provisions, such as penalties, established in other sections (such that the section count is overinclusive of the number of crimes). Some statutes are rarely, or narrowly, applied while others are sweeping and regularly prosecuted. Additionally, many statutes with criminal offenses and penalties are not in Michigan’s penal code. That said, more sections generally mean more crimes: a relatively large number of statutory sections is an important data set when considering the extent of criminalization in the state.
The estimated calculation was compiled by the Mackinac Center by reviewing criminal statutes, the Michigan Prosecutors’ Association Warrant Manual, and information provided by staff of Michigan’s House of Representatives.
By the count of the Manhattan Institute’s coauthors. Ohio Revised Code, Title 29, Crimes-Procedure, http://codes.ohio.gov/orc/29. Any error in the section calculations are those of the Manhattan Institute’s coauthors and should not be attributed to coauthor Michael Reitz or the Mackinac Center.
By the count of the Manhattan Institute’s coauthors. Illinois Compiled Statutes, Chap. 720, Criminal Offenses, available athttp://www.ilga.gov/legislation/ilcs/ilcs2.asp?ChapterID=53. Note that although Illinois’s criminal code contains fewer sections than Michigan’s, it contains more words — about 300,000 — prior to a recent review streamlining its provisions. See CLEAR Initiative, http://www.clearinitiative.org (last visited Sept. 22, 2014). Any error in the section calculations are those of the Manhattan Institute’s coauthors alone and should not be attributed to coauthor Michael Reitz or the Mackinac Center.
By the count of the Manhattan Institute’s coauthors. Wisconsin Statutes and Annotations, Chap. 939–951, Criminal Code, http://docs.legis.wisconsin.gov/statutes/prefaces/toc. In addition to the states listed, Minnesota has 306 sections in its criminal code. Minnesota Statutes, Chap. 609–624, Crimes, available athttps://www.revisor.mn.gov/statutes/?view=part&start=609&close=624. Indiana’s contains 1,139 sections — or 1,013 exclusive of sentencing — though the large number of sections is attributable to a different organizational schema, with only one offense included per section. Indiana Code, Title 35, Criminal Law and Procedure, available athttps://iga.in.gov/legislative/laws/2014/ic/titles/035. A different sampling of southeastern states used as a comparison group in an earlier study of North Carolina similarly saw states with fewer criminal-code sections than Michigan: North Carolina has 765 sections in its criminal code; South Carolina, 556; Georgia, 671; Tennessee, 607; and Virginia, 495. Copland & Gorodetski, supra note 14. Any error in the section calculations are those of the Manhattan Institute’s coauthors alone and should not be attributed to coauthor Michael Reitz or the Mackinac Center.
See Welty, supra note 13.
By the count of the Manhattan Institute’s coauthors. In Michigan, sessions in even-numbered years are two months shorter than those in odd-numbered years. Therefore, the chosen study period to evaluate recent growth trends in Michigan’s criminal laws includes a balanced number of short- and long-session years. As depicted in the chart, significantly more criminal laws were passed in even years with long sessions than in odd years with short sessions. For the six years in the study period, Manhattan Institute research assistants Amanda Swysgood and Meghan Herwig identified every piece of legislation passed with keywords, such as “felony,” “misdemeanor,” “crime,” or “criminal.” They then cross-checked each of those identified laws containing the keywords to determine whether a new criminal offense was created — either de novo or by the expansion of a definition or intent requirement. The Manhattan Institute’s coauthors then reviewed each identification with a careful eye for discrepancies to determine the final count of new crimes created for each year in the study period. MI’s coauthors followed a conservative set of internal guidelines to err on the side of undercounting crimes, with a concerted effort to generate an unbiased result. When a new crime was created by expanding the category of who could be charged — to include, for example, an owner, partners, officer, or director — we conservatively counted the addition as one new offense, even though its application was expanded across several categories. Crimes for second/subsequent offenses were not counted separately as new crimes (Michigan’s felonies and misdemeanors are not formally classified by degrees or classes). New crimes containing the same substantive elements, but with different corresponding penalties based on the severity of harm caused by the criminal conduct, were not counted as separate new crimes. Several pieces of legislation required subjective judgment calls on a case-by-case basis. Such cases usually involved legislation to amend existing law that was already criminally enforced by a catchall provision criminalizing a violation of any provision contained in an act, part, or division. Technically, any substantive change or addition could be considered a new crime. In such a case, however, barring special circumstances, only substantively amended provisions with “shall not” language were counted as new crimes — even though prescriptive “shall” requirements could also be criminally enforced, given the catchall provision. Such subjective decisions may, or may not, be warranted; any relaxation of the conservative counting methodology that we employed would advance, rather than undercut, the argument that Michigan is becoming overcriminalized. Note that the count of new crimes includes any legislation passed by the legislature; almost all were also signed into law by the governor. All the data are organized in a spreadsheet, available upon request. Any error in the calculations are those of the Manhattan Institute’s coauthors alone and should not be attributed to coauthor Michael Reitz or the Mackinac Center.
Copland & Gorodetski, supra note 14; Welty, supra note 13.
See Lawrence v. Texas, 539 U.S. 558 (2003) (finding a due-process right protecting noncommercial sexual activity between consenting adults); see also U.S. Const. amends. I, XIV (establishing right to freedom of speech).
MCL § 750.32.
MCL § 750.30.
MCL § 750.441.
MCL § 750.532.
MCL § 168.744a. This statute is significantly vague, given that it does not criminalize a conduct but rather a condition as a result of some unspecified conduct. It is unclear what conduct would be in violation of the statute — more specifically, how far removed a person could be, in terms of causation in connection to the prohibited condition, to be found criminally liable.
The estimated number of crimes in Michigan was compiled by reviewing criminal statutes, the Michigan Prosecutors Association’s Warrant Manual, and information provided by the staff of Michigan’s House of Representatives. This figure may undercount the actual number of criminal offenses without any criminal intent requirements because of catchall provisions criminalizing large swaths of laws and regulations.
As discussed later, courts in Michigan have developed a practice of inferring intent standards for certain types of crimes and where legislative intent would indicate a desire to establish a standard of intent.
There are also crimes with other, less frequently used, mens rea language, such as “has reason to know,” “carelessly,” “negligently,” etc.
MCL § 324.16902.
MCL § 324.35106.
MCL §§ 435.251–254.
MCL § 324.52901; MCL § 324.52909. These examples are hardly exhaustive. Other crimes on the books in Michigan lacking any mens rea requirement include: removal of forest products from state lands, MCL § 324.2156; causing a pet ferret discomfort or failing to provide adequate bedding, MCL § 287.893; selling dyed or artificially colored baby chicks, rabbits, or ducklings, MCL § 752.91; and trimming a tree or shrub within a highway right-of-way to make a sign more visible, MCL § 252.311.
People v. Lardie, 452 Mich. 231, 240 (1996). Lardie was subsequently overturned by the Michigan Supreme Court on grounds unrelated to the issues discussed in this paper.
Id. at 241.
People v. Kowalski, 489 Mich. 488, 498, reh’g denied, 490 Mich. 868 (2011).
See James R. Copland, What’s Wrong — and Right — with New York Criminal Law, in One Nation Under Arrest 173 (Paul Rosenzweig & Brian W. Walsh eds., 2010).
See Paul H. Robinson, Fair Notice and Fair Adjudication: Two Kinds of Legality, 154 U. Pa. L. Rev. 335 (2005).
See Edwin Meese III & Paul J. Larkin, Jr., Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725 (2012).
See Id. (citing Oliver Wendell Holmes, Jr., The Common Law 45–46, 125 (Belknap, 2009) (1881) (“[T]he fact that crimes are also generally sins is one of the practical justifications for requiring a man to know the criminal law”); Wayne R. Lafave, Criminal Law § 5.6, § 1.3(f) (5th ed., 2010); Livingston Hall & Selig J. Seligman, Mistake of Law and Mens Rea, 8 U. Chi. L. Rev. 641, 644 (1940) (“[T]he early criminal law appears to have been well integrated with the mores of the time, out of which it arose as ‘custom’ ”).
See William Blackstone, 4 Commentaries, at 432 (9th ed., Callahan, 1913).
See Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime — A Roadmap to Restore Rights and Status After Arrest or Conviction (Nat’l Assoc. of Crim. Def. Lawyers, May 29, 2014), available athttp://www.nacdl.org/restoration.
See Yates v. United States, U.S. Sup. Ct., No. 13-7451, decision below 733 F.3d 1059 (11th Cir. 2013).
H.B. 5807 would require “a culpable mental state and that the person act purposely, knowingly or recklessly” for any criminal offense laws enacted after Jan. 1, 2015.
In recent years, crime has been trending downward in Michigan — reported violent crime is down 15 percent from 2008 to 2012 — but violent crime rates in four Michigan cities remain three to five times greater than the national average. See Applying a Justice Reinvestment Approach to Improve Michigan’s Sentencing System, Justice Ctr., May 2014, at https://www.bja.gov/ Publications/CSG-MichiganJRI.pdf. The City of Detroit is an estimated $18 billion in debt, has experienced operating deficits for seven consecutive years, and allocates 38 percent of its expenditures to debt service. See In re City of Detroit, Michigan, 504 B.R. 97 (E.D. Mich., Dec. 5, 2013).