News Story

How You Can Be Prosecuted For Unknowingly Breaking the Law

Panel ponders attempt to fix what constitutes criminal activity

A bill to protect Michiganders from being prosecuted for unknowingly violating thousands of state laws and regulations could soon face a vote in a key committee of the Michigan House of Representatives.

House Bill 4713 would restore a standard for defining what constitutes criminal liability. The move would affect numerous state statutes, especially regulatory violations. Under mens rea (Latin for ‘the guilty mind’), more than just the act of violating a law must be considered to establish criminal liability; the intent of the accused person also has to be considered.

On Sept. 17 the House Oversight Committee held a hearing on the bill. Observers expect the committee to vote on the legislation soon, possibly as early as Sept. 24.

“This addresses statutes that fail to specify that there needs to be proof of a culpable mental state,” Mike Reitz, the executive vice president of the Mackinac Center for Public Policy, told the committee. “For a crime to occur there has to be a combination of intent and action."

Witnesses speaking before the committee said that as the number of the state’s regulatory crimes have increased the mens rea concept has consistently been omitted.

This has resulted in cases such as that of Alan Taylor, a Sparta business owner who unintentionally became a criminal after he had an employee parking lot expanded. After the work was done, the Department of Environmental Quality informed Taylor that his project had encroached on a wetland. The department's lead investigator admitted it wasn’t clear that the lot was on protected land, but ultimately, Taylor was found guilty and ordered to pay $8,500 in fines and costs.

In reaction to this case, Supreme Court Justice Stephen Markman called on the Legislature to clarify statutes that criminalize administrative offenses.

Advocates of reform argue that Michigan’s law books include an estimated 3,102 crimes, a number so large that residents aren’t likely to be aware of or fully understand many of them. One study has shown that 27 percent of Michigan felonies and 59 percent of state misdemeanors contain no mens rea provision.

Under the bill under consideration, mens rea would apply to all crimes to which it could reasonably be applied. Under that standard, a criminal offense could only be established if it were proven that the accused person had acted with intent, knowledge or recklessness. Statutes within the vehicle code, the penal code and drug laws would be exempt and not affected by the bill.

“The need for this involves two issues,” Reitz said. “One, personal liberty; and two, it will also provide an element of clarity.”

Rep. Lana Theis, R-Brighton, asked why the Legislature doesn’t solve the problem by getting rid of all of the state’s problematic laws.

“My concern is that there are a lot of laws on the books that shouldn’t be on the books in the first place,” Theis said. “Maybe we shouldn’t be doing this and instead should be getting rid of those laws.”

Rep. Ed McBroom, R-Vulcan, the chair of the committee and sponsor of the bill, said that doing that was something that sounds easier than it actually would be.

“There is a law that says colored chicks and rabbits can’t be sold, which has never resulted in a single case,” McBroom said. “But when we attempted to take it off the books there was quite an outcry from certain quarters. And that was only one of the many laws we’re talking about.”

Shelli Weisberg, executive director of the American Civil Liberties Union of Michigan, spoke in support of the bill.

“We agree with everything the Mackinac Center has said regarding this bill,” Weisberg said.

Russell Coleman, of the U.S. Justice Action Network, testified in favor of the bill. He cited the case of Lisa Snyder, of Middleville, who watched over her neighbors’ children for 20 to 30 minutes each morning until the school bus arrived. Snyder didn’t realize that what she’d been doing could get her in trouble until she received a letter from the Michigan Department of Human Services. It warned her that if she continued to watch the children at her home, she would be providing child care without a day care license. As a result of her illegal activity, she could face penalties, possibly even jail time.

Coleman also cited the case of Michigan resident Kenneth Schumacher, who delivered scrap tires to what he believed to be a legal depository, not knowing the facility wasn’t licensed to receive the tires. Even after appealing his subsequent conviction, Schumacher received a sentence of 270 days in jail and a $10,000 fine.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.