Michigan’s absurd laws criminalize the population

This article appeared on DetroitNews.com December 4, 2014.

Did you know that Michigan has a higher incarceration rate than Iran, Russia and Cuba?

This is partly because Michigan state law, like that of other states and the federal government, has gone overboard in criminalizing activities that are not inherently wrong. This means Michiganians could, and probably do, break the law without even knowing it.

According to a new report by the Mackinac Center and Manhattan Institute, Michigan has created an average of 45 criminal offenses a year — 44 percent of which are felonies — over the past six years.

The rapid expansion of criminal laws has brought the total number of criminal offenses in Michigan to more than 3,100. The state’s penal code contains 918 sections, which is eight times the number of the Model Penal Code and significantly more than the neighboring states of Ohio, Illinois and Wisconsin.

The rapid growth of criminal laws — a phenomenon known as overcriminalization — presents a problem for Michiganians: With a long and complicated state code that criminalizes behavior that is not intuitively criminal, how can individuals remain compliant and stay out of the criminal justice system?

Historically, the criminal justice system has required proof of criminal intent to convict an individual of a crime. However, a growing number of public welfare laws has increased the number of crimes that fall short of this standard.

In Michigan, 26 percent of felonies and 59 percent of misdemeanors do not explicitly require the state to prove criminal intent. What makes this dangerous is that one would not expect many of these actions to be criminal.

For example, transporting a Christmas tree before Nov. 30 without a bill of sale is a crime. Not complying with oddly specific guidelines on proper ferret care carries a possible jail sentence of 90 days.

Besides being a disturbing affront to individual liberty, the proliferation of criminal statutes is also expensive. In 2011, Michigan spent 24.1 percent of its budget on corrections, a larger portion than any other state, and total spending is approximately $2 billion per year. That is more than what the state spent on higher education in the same year; one of only eight states to do so.

Michigan is exploring reforms to its sentencing and corrections laws, and more can be done by addressing overcriminalization. Lawmakers should carefully consider what constitutes a crime and what actions could be better dealt with through the civil justice system.

Further, Michigan should ensure that no person is convicted of a crime without the government proving that he or she intended to violate the law or knew the conduct was unlawful.

Establishing a default criminal intent requirement does not take away the Legislature’s ability to enact strict liability laws that do not require criminal intent for conviction; rather, it ensures that when the Legislature creates a new criminal statute, they are mindful of the intent requirement. This will provide much relief to many accidental, nonviolent offenders as well as to the courts and taxpayers.

Michigan can keep innocent individuals out of overcrowded prisons, freeing up both tax dollars and prison beds for violent and dangerous criminals that need to be incarcerated to protect public safety. Let’s end the ridiculous spending and, most importantly, the injustices that overcriminalization brings.

For more information, please see the recent ALEC report, “Criminalizing America — How Big Government Makes a Criminal of Every American.”