Oliver Wendell Holmes Jr. said even a dog knows the difference between “being stumbled over and being kicked.” Our criminal law traditionally distinguished between stumblers and kickers: those who commit a morally blameworthy act, called an actus reus, along with an “evil” frame of mind, known as mens rea or scienter. Legislators maintained that distinction by writing mens rea standards such as “knowingly,” “intentionally,” or “recklessly” into all criminal statutes, requiring prosecutors to prove that a defendant acted with a certain standard of criminal intent at trial.
In the mid-19th century, the state and federal governments began to write “public welfare” offenses that often lacked these standards, using the criminal law not as a way to identify and do away with morally blameworthy conduct, but as a regulatory tool to further social agendas.
Today, there are nearly 5,000 federal criminal statutes and an estimated 300,000 or more criminal regulatory offenses, or “public welfare” offenses. As Heritage scholar John Malcolm recently wrote, “many of these laws lack adequate, or even any mens rea standards—meaning that a prosecutor does not even have to prove that the accused had any intent whatsoever to violate the law or even knew he was violating a law in order to convict him. In other words, innocent mistakes or accidents can become crimes.”
The same problems exist in the states. The Manhattan Institute analysis of overcriminalization in Michigan unravels Michigan’s massive criminal code. The code contains an estimated 3,102 crimes, consisting of 1,209 felonies and 1,893 misdemeanors. Moreover, “48 percent of felonies and more than 76 percent of misdemeanors [are] codified outside the penal code.” And there are more crimes in the form of “regulatory ‘catchall provisions,’ which make entire sections of the regulatory code criminal, including the state’s regulations dealing with public health, agriculture, and the environment.” Michigan legislators created at least 273 new crimes from 2008 to 2013 alone:
Chart by Manhattan Institute http://www.manhattan-institute.org/html/ib_31.htm
In People v. Lardie, the Michigan Supreme Court said that criminal laws with no mens rea requirement may be disfavored, but the legislature can still “decide under its police power that certain acts or omissions are to be punished irrespective of the actor’s intent.” Reviewing the erosion of mens rea in Michigan, the Mackinac Center for Public Policy concluded:
Individuals can be charged, convicted and imprisoned for committing misdemeanors and felonies while harboring no criminal intent…. Given the number of statutes that do not specific an intent standard and the proliferation of strict-liability, public welfare offenses, which often criminalize otherwise innocuous behavior, the Legislature ought to clarify standards of intent in criminal statutes. A default mens rea provision would have a moderating influence on unwarranted prosecutions and would concentrate the potency of criminal sanctions on truly culpable behavior.
Michigan legislators have awoken to this serious problem and pushed a strong mens rea reform bill, HB 4713, closer to enactment. After a recent hearing and testimony, it passed unanimously out of review and was unanimously reported with recommendation from the Oversight Committee.
The bill requires that “a person [be] not guilty of a criminal offense unless” the person performs a morally blameworthy act along with some “evil” frame of mind. In other words, you are guilty of a crime if you are a “kicker,” and not just a “stumbler.”
According to the legislative analysis, the bill would “provide protection to a person accused of a crime for which no mens rea standard is currently provided by establishing a default mens rea standard and requiring mens rea to be satisfied for each element of a criminal offense in order to convict the person of a criminal offense.”
While the text of the bill identifies several mens rea standards, it does not actually impose a single default mens rea standard for all courts to apply when one is absent in a criminal law at hand. The bill does identify, define, and require application of strong mens rea standards in any criminal law. The only exception to this rule would arise when a statute’s text “does not specify any degree of culpability and plainly imposes strict criminal liability for the [statutorily proscribed] conduct.”
Michael J. Reitz, executive vice president of the Mackinac Center, suggested several recommendations to strengthen the mens rea reform bill. Even in its present form, this bill answers the call for mens rea reform in language worthy of serious consideration.
This progress is significant, but there is much more work to be done to restore the principle, as the U.S. Supreme Court wrote in Dennis v. United States in 1951, that “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.”
Recent U.S. Supreme Court cases like Elonis and McFadden have reinvigorated traditional mens rea doctrine. Yet, as John Malcolm has noted of the several criminal justice reform proposals percolating on Capitol Hill, mens rea reform is “[n]otably absent.” “Prominent Republican and Democratic members of the Over-Criminalization Task Force seem[] to agree on the need for mens rea reform.” Republican Chairman James Sensenbrenner, R-Wis., stated: “The lack of an adequate intent requirement in the Federal Code is one of the most pressing problems facing this Task Force[.]” Ranking Member Robert Scott, D-Va., added:
The mens rea requirement has long served as an important role in protecting those who did not intend to commit a wrongful act from prosecution or conviction…. Without these protective elements in our criminal laws, honest citizens are at risk of being victimized and criminalized by poorly crafted legislation and overzealous prosecutors.
Senator Orrin Hatch, R-Utah, recently stated that he will be introducing a proposal soon that addresses mens rea reform. Congress should follow Michigan’s lead on mens rea reform to address this important issue.
