Recycling Pop Cans Shouldn’t Make You a Felon

The many faces of overcriminalization

Most Michiganders are familiar with the state’s bottle deposit law, which was enacted in 1976. At 10 cents a bottle or can, Michigan has one of the nation’s highest deposit rates — most of the other states that use these deposits require only five cents. But what may not be as well known is that Michigan also enforces this law with an iron fist. A recent case from Livingston County resulted in felony charges and raises the question of whether this punishment fits the crime. It also highlights Michigan’s tendency to overcriminalize undesirable behavior.

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On April 27, Brian Everidge, a resident of Michigan, was pulled over for speeding while driving a rental truck in Tyrone Township. The police officer discovered that the truck was packed to the brim with empty aluminum cans — over 10,000 in all. After questioning, Everidge admitted that the cans were from Lexington, Kentucky and that he was aiming to return them for a deposit. He did not state whether he was trying to return them for Michigan’s higher deposit rate or that he knew that this was illegal. (If this storyline sounds familiar, that’s probably because it’s the basis of a famous Seinfeld episode).

Everidge was eventually charged with a felony under Michigan’s Beverage Containers Act, which prohibits individuals from returning, or attempting to return, beverage containers that they know (or should know) are from out of state. Trying to deposit more than 10,000 containers is a felony and can lead to five years in jail and a fine of $5,000. (Misdemeanor charges and civil fines are used for smaller quantities of out-of-state returns.) Grocery stores and recycling centers can also be prosecuted under this law, as it forbids any retailer from knowingly providing 10-cent deposits for out-of-state containers.

Given Michigan’s relatively high deposit rate, it should be no surprise that people might smuggle out-of-state containers into Michigan for recycling. And, sure enough, Michigan has a fair amount of fraudulent redemptions from out-of-state returns. These out-of-state returns are difficult to prevent since most people simply walk into a grocery store, return their bottles, and leave, without any indication of where their returns came from.

While the Beverage Container Act’s criminal provisions are meant to deter out-of-state smugglers, they also demonstrate the drawbacks of using criminal law to punish behavior that most people would not consider morally objectionable and that does not threaten public safety. For example, “mens rea” (Latin for a “guilty mind”) is considered a core component of criminal law. It means that the government needs to prove that an individual at least acted with a culpable state of mind and was generally aware of his or her misconduct. Robust mens rea requirements are especially important for laws like Michigan’s Beverage Container Act, which are what legal theorists call “malum prohibitum” crimes. Such crimes involve conduct that is not inherently wrongful and is only deemed illegal because the government has passed a law saying so. Given that these types of laws do not involve inherently immoral conduct, citizens are more likely to break these laws without even knowing they exist.

Michigan’s bottle return law states that individuals must know that the containers they are attempting to return are from out of state. But the problem is that nothing in the statute explicitly requires that the person returning the containers knows that out-of-state returns are illegal. A better mens rea provision would clarify that the bottle return law’s criminal provisions only apply to those who willfully intend to break the law. In other words, harsh penalties may be appropriate for people who know they are attempting to violate the law, but there should be protections for people who are unaware that returning out-of-state bottles is a crime.

The Michigan Legislature recently passed meaningful mens rea reform. It makes it clear that when a statute is silent on this standard, an individual must at least act with “recklessness” to be found guilty of a crime. While this is a clear step in the right direction, the Beverage Container Act could still benefit from greater clarity. Although courts have not yet construed the law’s mens rea requirements in light of Michigan’s recent reforms, the Legislature could clarify that the bottle return law is only meant to target those individuals who know the law exists and are specifically trying to break it.

It can also be debated whether it’s proper at all for Michigan’s bottle return law to use harsh criminal penalties to deter conduct that most people wouldn’t view as threatening to public safety. For instance, Everidge was probably only going to net a few hundred dollars from his redemption scheme, and punishing him as a felon with jail time and a penalty as high as $5,000 may be overly punitive. One possible reform would be to enforce the bottle return law exclusively through civil penalties, as The Heritage Foundation’s John-Michael Seibler suggests. This would prevent anyone from having to serve jail time for returning out-of-state bottles.

Protecting Michigan’s environment from litter and encouraging recycling are noble goals to which Michigan’s bottle deposit law contributes. One can support these goals, but also acknowledge that criminal enforcement of bottle return laws may need reforming. The Legislature has put some focus on dealing with overcriminalization, and this law might be a good candidate for more reforms to that end.

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