Criminal Minds: Defining Culpability in Michigan Criminal Law

ABOUT THE AUTHOR

Michael J. Reitz is executive vice president for the Mackinac Center.

He would like to acknowledge Vikrant Reddy and Marc Levin of the

Texas Public Policy Foundation for their assistance in producing this report.

Any errors in the report are the responsibility of the author alone.

DEC. 10, 2013 S2013-10 ISBN: 978-0-9883921-9-9

Criminal Minds: Defining Culpability in

Michigan Criminal Law

By Michael J. Reitz, J.D.

Executive Summary*

A concept rooted in centuries of American and English

legal tradition is that the commission of a crime

requires both a wrongful act and a culpable mental

state. The wrongful act (actus reus in Latin) is the

physical act committed by a person. The mental state

(mens rea) is the person’s guilty state of mind when

committing the act. A crime requires a marriage of

both factors. As one U.S. Supreme Court justice wrote,

“Crime, as a compound concept, generally constituted

only from concurrence of an evil-meaning mind with

an evil-doing hand[.]” The purpose of this approach

was to penalize only those who, when faced with the

choice of obeying the law or committing a crime,

voluntarily chose to commit a crime.

In 1952, the U.S. Supreme Court issued a landmark

decision in the case of Morissette v. United States, in

which the court examined the concept of mens rea.

While hunting in northern Michigan, the defendant

discovered a pile of rusted bomb casings on state

property that had been leased to the federal

government. Presuming the casings were abandoned,

the defendant collected a load to sell as scrap metal.

He was subsequently indicted and convicted of stealing

federal property. The trial court refused to allow the

defendant to argue his innocent intention, and held

* Citations provided in the main text.

that the fact the defendant took the casings created

a presumption that he meant to steal government

property, regardless of his actual intent. On appeal, the

U.S. Supreme Court reversed the conviction. The high

court held that where a federal statute codifies a

common-law crime, courts should construe the statute

to include a mens rea element, even when Congress

failed to specify a threshold for harmful intent.

With the growth of industrialization and urbanization

in the late 19th century, a new form of crime emerged,

commonly known as “public welfare” offenses.

Legislatures enacted these new crimes under their

police power to promote social order. Examples of

public welfare regulations included the improper sale of

alcohol, sale of adulterated food and drugs or

misbranded articles, public nuisances, and violations of

traffic, motor vehicle and other laws concerning public

safety and public health.

Significantly, public welfare offenses omit the

requirement to establish blameworthiness for a criminal

conviction; liability can be imposed irrespective of the

actor’s intent. The use of public welfare laws to regulate

behavior has increased over time, with state legislatures

and Congress frequently enacting laws that are silent on

the mens rea element of crimes, leaving it to the courts

to determine what standard of intent should be applied.

The expansion of public welfare offenses (and the

attendant erosion of mens rea) has been widely

criticized and raises a number of concerns. Inadequate

mens rea provisions result in a vague criminal code,

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2 MACKINAC CENTER FOR PUBLIC POLICY

granting prosecutors and the courts a great deal of

discretion and creating the potential for inconsistent

application. The purpose of the mens rea doctrine was

to punish criminally culpable behavior, and by omitting

intent provisions, public welfare offenses often regulate

and criminalize behavior that would be otherwise

unobjectionable, but for the regulatory prohibition.

The proliferation of public welfare offenses can place

well-intentioned citizens in jeopardy of unwittingly

engaging in criminal behavior.

Given the erosion of the mens rea requirement, a

number of states have adopted a default mens rea

provision in their criminal code. In other words, the

state prescribes a default culpability standard where

the criminal statute is silent on the intent required to

establish a criminal offense. Legislatures in those states

are still capable of adopting public welfare regulations,

but must do so explicitly.

Michigan’s criminal code does not contain a default

mens rea provision. Thus, if Michigan statute does not

explicitly state the culpability necessary to establish an

offense, courts are left to evaluate whether a mens rea

requirement should be inferred or if the defendant

should be held strictly liable for the criminal act.

Scores of Michigan misdemeanors and felonies are

silent on the mens rea element. These public welfare

offenses cover a wide variety of behavior: lobbying by

former state lawmakers; the care of pet ferrets;

transportation of Christmas trees and Michigan holly;

removal of forest products from state lands; disposal

of litter produced at health facilities; disposal of used

motor oil; disposal of scrap tires; removal of certain

abandoned property on the bottomlands of the Great

Lakes; and the transportation of loaded firearms.

Significant fines and imprisonment can be incurred

for violations of these laws.

The Michigan Legislature should expressly affirm the

fundamental importance of mens rea and should adopt

a default mens rea provision to apply to statutes that fail

to clearly define the intent required for a criminal

conviction. If a criminal statute is silent on the requisite

state of mind to establish a crime, the default mens rea

provision would be incorporated. Standardizing the

application of mens rea requirements would provide for

a more efficient criminal justice system.

Introduction

Joseph Edward Morissette, a 27-year-old Army

veteran, lived with his wife and son in Oscoda, Mich.

Morissette supported his family by working in fruit

markets, hauling scrap iron and driving truck.

In the fall of 1948, Morissette went deer hunting with

his brother-in-law in an area popular with deer

hunters. The property was owned by the

Conservation Department and the Department of

Agriculture of the State of Michigan, but had been

leased to the Air Force, which used it as a practice

bombing range. While hunting, Morissette came

upon a pile of bomb casings in the woods. These

casings had been piled for approximately four years

and showed signs of rust and decomposition.

Morissette assumed that the casings had been

abandoned and were of little use to anyone. He

collected some of the casings, flattened them, and sold

them as scrap metal for $84 (about $800 today). While

Morissette was hauling some of the bomb casings, a

police officer stopped him and asked about the casings.

Morissette told the officer where he obtained the

casings. The matter was reported to the Federal

Bureau of Investigation, and Morissette was indicted

and convicted in federal court for “unlawfully, wilfully

and knowingly steal[ing] and convert[ing]” property

owned by the United States government.

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TEXAS PUBLIC POLICY FOUNDATION 3

Morissette told investigating officers and testified at his

trial that he believed the casings to be abandoned, and

had not intended to steal government property. The

court refused Morissette’s argument of his “innocent

intention” and instructed the jury that Morissette’s

admission to taking the property called for a guilty

verdict. Morissette was convicted and faced two months

in prison or a fine of $200 (about $1,900 today).

Joseph Morissette could little foresee that his 1948

hunting trip would result in a seminal decision from

the U.S. Supreme Court. The case hinged on whether

Morissette, when he took the abandoned casings,

possessed the requisite intent to be convicted of the

federal law prohibiting theft of U.S. property.

This report explores this area of the law — culpability

and criminal intent — and makes recommendations

for how Michigan policymakers could improve

standards for establishing criminal intent for the

conviction of crimes.

Element of Intent in Criminal Offenses

Mens Rea — An Overview

A fundamental principle from English common law

is that a crime generally requires both a wrongful act

(actus reus) and a guilty mental state (mens rea). The

actus reus is the physical act committed by a person,

while mens rea refers to that person’s intent when

committing the act. Under common law, a crime

required a marriage of both factors. In other words,

a person could only be convicted of a crime if he

committed an unlawful act and if he knew that the act

was illegal or if the conduct was of such a nature that

a person should recognize it as wrongful.

The result

of this approach was to penalize only those who

voluntarily choose to commit an unlawful act.

* This could include conduct commonly recognized as wrong, such as gross

indifference to the safety of others.

The mens rea requirement can be traced back through

centuries of legal tradition. William Blackstone, an

18th century English jurist, wrote: “[A]n

unwarrantable act without a vicious will is no crime

at all. So that to constitute a crime against human laws,

there must be, first, a vicious will; and, secondly, an

unlawful act consequent upon such vicious will.”

This principle was carried over the Atlantic and

incorporated into the American legal system. As Oliver

Wendell Holmes Jr. observed, “Even a dog

distinguishes between being stumbled over and being

kicked.”

U.S. Supreme Court Justice Robert Jackson

described how American courts relied on various

devises to infuse blameworthiness into criminal codes:

Crime, as a compound concept, generally

constituted only from concurrence of an evil-

meaning mind with an evil-doing hand, was

congenial to an intense individualism and took

deep and early root in American soil. As the

state codified the common law of crimes, even

if their enactments were silent on the subject,

their courts assumed that the omission did not

signify disapproval of the principle but merely

recognized that intent was so inherent in the

idea of the offense that it required no statutory

affirmation. Courts, with little hesitation or

division, found an implication of the

requirement as to offenses that were taken

over from the common law. The unanimity

with which they have adhered to the central

thought that wrongdoing must be conscious to

be criminal is emphasized by the variety,

disparity and confusion of their definitions of

the requisite but elusive mental element.

However, courts of various jurisdictions, and

for the purposes of different offenses, have

devised working formulae, if not scientific

ones, for the instruction of juries around such

terms as ‘felonious intent,’ ‘criminal intent,’

‘malice aforethought,’ ‘guilty knowledge,’

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4 MACKINAC CENTER FOR PUBLIC POLICY

‘fraudulent intent,’ ‘wilfulness,’ ‘scienter,’ to

denote guilty knowledge, or ‘mens rea,’ to

signify an evil purpose or mental culpability.

By use or combination of these various tokens,

they have sought to protect those who were

not blameworthy in mind from conviction of

infamous common-law crimes.

The issue of mens rea was central to the resolution of

Joseph Morissette’s case. His conviction was upheld by

a federal appeals court, but the case eventually came

before the U.S. Supreme Court. Justice Jackson

(referenced above), who wrote the opinion of the

court, acknowledged that the matter would have been

a “profoundly insignificant case” had it not raised

“fundamental and far-reaching” questions.

Justice Jackson observed that the concept of criminal

intent “is no provincial or transient notion,” but is

rather “as universal and persistent in mature systems

of law as belief in freedom of the human will and a

consequent ability and duty of the normal individual

to choose between good and evil.”

Recognizing the

relation between one’s mental state, a criminal act, and

the concomitant punishment, Jackson wrote, was

essential in replacing the vengeance-based, Old World

criminal justice system with an enlightened one based

on “deterrence and reformation.”

Justice Jackson noted the profound consequences of

holding Joseph Morissette liable for theft of the

government’s abandoned bomb casings:

The Government asks us by a feat of

construction radically to change the weights

and balances in the scales of justice. The

purpose and obvious effect of doing away with

the requirement of a guilty intent is to ease

the prosecution’s path to conviction, to strip

the defendant of such benefit as he derived at

common law from innocence of evil purpose,

and to circumscribe the freedom heretofore

allowed juries. Such a manifest impairment of

the immunities of the individual should not

be extended to common-law crimes on

judicial initiative.

The Supreme Court signaled its approval of requiring

intent as an inherent element of crimes where a federal

statute codifies a common-law crime, even when

Congress does not specify a threshold for harmful

intent.

Thus, as noted in the Morissette case, the

“mere omission … of any mention of intent will not be

construed as eliminating that element from the crimes

denounced.”

Subsequently, the Supreme Court held

that Morissette could not be held liable unless the jury

was afforded an opportunity to evaluate his intent, and

the court accordingly reversed his conviction.

Strict Liability and Public Welfare Offenses

Intent crimes are often categorized as either general or

specific. General intent crimes require the state to

prove that the defendant “purposefully or voluntarily

performed the wrongful act” when seeking a

conviction.

A specific intent crime requires a

“particular criminal intent beyond the act done” —

in other words, committing an act for a particular

criminal purpose.

For example, burglary traditionally

requires breaking and entering with the intent to steal.

A third category of crime is called strict-liability crimes.

Strict-liability crimes require no mens rea — a criminal

penalty can be imposed regardless of the intent of the

actor. Statutory rape, for example, is penalized

regardless of a defendant’s knowledge of the victim’s

age.

As the Michigan Supreme Court has explained:

* The Supreme Court acknowledged that certain exceptions to the rule of

culpability have been recognized over time, such as sex offenses and offenses of

negligence where a crime occurs because of an omission of duty. Morissette v.

United States, U.S. 342 at 251 n.8.

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TEXAS PUBLIC POLICY FOUNDATION 5

For a strict-liability crime, the people need

only prove that the act was performed

regardless of what the actor knew or did not

know. On this basis, the distinction between a

strict-liability crime and a general-intent crime

is that, for a general-intent crime, the people

must prove that the defendant purposefully or

voluntarily performed the wrongful act,

whereas, for a strict-liability crime, the people

merely need to prove that the defendant

performed the wrongful act, irrespective of

whether he intended to perform it.

The regulatory response to growth of industrialization

and urbanization in the late 19th century introduced

a new form of strict-liability crimes, commonly known

as “public welfare” offenses, which legislatures began

enacting under their police power to promote social

order.

New industrial advances, the congestion of

cities and wide distribution of goods all posed new

potential dangers to the public. Public welfare

regulations were intended to “heighten the duties of

those in control of particular industries, trades,

properties or activities that affect public health, safety

or welfare.”

These laws were regulatory in nature,

intended to prevent public harms that could occur

from neglecting a duty of care.

Over time, legislatures used the criminal code, with its

power of prosecution and sanctions, for regulatory

purposes. In a seminal article written in 1933, Harvard

law professor Francis Sayre categorized typical public

welfare offenses: the improper sale of alcohol, sale of

adulterated food and drugs or misbranded articles,

criminal (or “public”) nuisances, and violations of

traffic, motor vehicle and other laws concerning public

safety and public health.

Early public welfare cases in

* For more on the origins of public welfare offenses, see: Catherine L.

Carpenter, “On Statutory Rape, Strict Liability, and the Public Welfare Offense

Model,” American University Law Review 53, no. 2 (2003): 313–391, accessed

Nov. 20, 2013, http://goo.gl/Tq0oaA; Richard G. Singer, “The Resurgence of

Mens Rea: The Rise and Fall of Strict Criminal Liability,” Boston College Law

Review 30, no. 2 (Mar. 1, 1989): 337–408, accessed Nov. 20, 2013,

http://goo.gl/C3lJKW.

Michigan penalized the sale of mustard adulterated

with turmeric and opening a saloon on a Sunday.

Significantly, public welfare offenses omit the

requirement to establish blameworthiness for

a criminal conviction; liability can be imposed

irrespective of the actor’s intent. Legal commentators

have theorized that public welfare offenses were

favored by lawmakers because of the ease of

conviction, as requiring proof of mens rea places a

greater burden on the prosecution.

Public welfare

laws often regulated behavior that would, but for the

prohibition, be considered innocent conduct;

a stop sign at a deserted intersection does not

represent a moral imperative.

Today, it is quite common for legislatures and

Congress to be silent on intent, creating the inference

that strict liability is to be imposed. A 2010 joint

report by The Heritage Foundation and the National

Association of Criminal Defense Lawyers examined

legislation that would create new nonviolent criminal

offenses proposed by the 109th U.S. Congress in 2005

and 2006. The authors determined that 57 percent of

the proposed offenses contained inadequate mens rea

requirements, and 64 percent of the proposals

enacted into law were lacking mens rea provisions.

Mens Rea in Michigan Jurisprudence

Determining Whether Mens Rea is

a Required Element

Given the erosion of the concept of mens rea,

a number of states have adopted a default mens rea

provision in their criminal code. In other words, the

state prescribes a default culpability standard in cases

where the criminal statute is silent on the intent

required to establish a criminal offense.

The Michigan Penal Code does not contain a default

mens rea provision. Thus, if the Legislature does not

explicitly state the culpability necessary to establish an

offense, courts are left to evaluate whether a mens rea

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6 MACKINAC CENTER FOR PUBLIC POLICY

requirement should be inferred or if strict liability

should be imposed.

The Michigan Supreme Court has stated that although

strict-liability crimes are disfavored, the Legislature

may, nevertheless, “decide under its police power that

certain acts or omissions are to be punished

irrespective of the actor’s intent.”

Statutes using strict

liability are not constitutionally prohibited.

Michigan

Chief Justice Thomas Cooley articulated the rationale

for strict-liability, public welfare offenses: “Many

statutes which are in the nature of police regulations …

impose criminal penalties irrespective of any intent to

violate them; the purpose being to require a degree of

diligence for the protection of the public which shall

render violation impossible.”

Criminal intent is typically an element of statutorily

created crimes in Michigan.

Where a statute codifies

the common law, and that common-law crime

required a mens rea, courts will interpret the statute as

also requiring intent to be shown.

For crimes with no

common-law equivalent, courts first look to the

language of the statute to assess the intent of the

Legislature.

Even if a statute fails to expressly state

that intent is a predicate for determining guilt, courts

operate with the presumption that intent is still

necessary. As the Michigan Supreme Court recently

held in People v. Kowalski, “When interpreting a

criminal statute that does not have an explicit mens rea

element, we do not construe the Legislature’s silence

as an intention to eliminate the mens rea

requirement.”

If the text of the statute is unclear,

courts will also examine the legislative history of a

statute to determine intent.

Numerous decisions from Michigan courts have

addressed the issue of culpability and intent. A

discussion of the major cases that have recognized a

mens rea element and those that have imposed strict

liability is found in Appendix A.

Concerns with Inadequate

Mens Rea Provisions

As discussed above, it is quite common for Congress

and legislatures to be silent on the issue of intent when

enacting new criminal statutes. Many concerns

accompany the erosion of criminal intent provisions.

The purpose of the mens rea doctrine was to punish

criminally culpable behavior.

The proliferation of

public welfare offenses, however, increases the

possibility that well-intentioned citizens unwittingly

break the law. Additionally, as will be shown below,

public welfare offenses often regulate and criminalize

behavior that would be otherwise unobjectionable, but

for the regulatory prohibition. Individuals can incur

great damage financially and upon their reputations

due to the sanctions associated with a criminal

conviction.

Inadequate mens rea provisions also result in a vague

criminal code, granting prosecutors and the courts a

great deal of discretion and creating the potential of

inconsistent application. As detailed in Appendix A,

numerous cases have required litigation to the state’s

highest court because the Legislature failed to state its

intent explicitly as it related to mens rea in criminal

statutes. The time and expense required of the state

and of criminal defendants to clarify legislative intent

is not insignificant.

Criminal law retains a potency when it regulates truly

objectionable behavior. Society risks a breakdown in

the rule of law and the respect for it when routine and

otherwise moral behavior is penalized with criminal

sanctions. As Dr. John C. Coffee Jr, a Columbia

University Law School professor, has written:

* Dr. John S. Baker characterizes the common law crimes of murder, rape,

robbery, burglary, larceny/theft as the “meat and potatoes” of criminal

prosecutions. John S. Baker, “Mens Rea: The Need for a Meaningful Intent

Requirement in Federal Criminal Law,” July 19, 2013, accessed Nov. 20, 2013,

http://goo.gl/RtffW6.

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TEXAS PUBLIC POLICY FOUNDATION 7

The factor that most distinguishes the criminal

law is its operation as a system of moral

education and socialization. The criminal law

is obeyed not simply because there is a legal

threat underlying it, but because the public

perceives its norms to be legitimate and

deserving of compliance. Far more than tort

law, the criminal law is a system for public

communication of values.

Scores of Michigan statutes are silent on the mens rea

element for misdemeanors and felonies. A brief

review illustrates the variety and scope of public

welfare offenses.

A person who breeds ferrets as a hobby must comply

with detailed regulations.

Ferrets must be housed

indoors, in ventilated areas with minimal drafts and

odors, and the temperature must be set to prevent any

ferret “discomfort.” Lighting in the cage area must be

“ample.” Each ferret must be given a minimum of two

square feet of cage space and bedding must be

“appropriate for the season.” Food provided a ferret

must be “wholesome and of sufficient quantity and

nutritive value to maintain all ferrets in good health.”

A person who violates the rules of ferret care is guilty

of a misdemeanor, punishable by imprisonment for up

to 90 days, a fine of up to $1,000 plus prosecution

costs, up to 120 hours of community service and

permanent relinquishment of all animal ownership.

Christmas revelers would be wise to keep their receipts

from the local tree farm. A person may be guilty of a

misdemeanor for transporting Christmas trees,

evergreen boughs, Michigan holly and other plants

without carrying a bill of sale. The law provides an

exemption for the sale and transportation of two

Christmas trees per person between November 30 and

December 31 of the same year.

Any person who purchases poultry for the purpose of

reselling the domesticated birds must maintain

detailed documentation of the transaction, including

the date of each purchase, the name and residence

of the seller, the type of poultry purchased with a

description and tally. If the seller delivers said poultry

by means of a licensed vehicle, the license number

must also be noted. Failure to maintain the necessary

paperwork is a misdemeanor, punishable by a

$100 fine and up to 90 days in the county jail.

Purchasing a vehicle on the weekend can be

convenient, but buyers should exercise caution. It is

unlawful for any person or corporation to engage in

the buying, selling or exchange of new or used motor

vehicles on Sunday. Similarly, car dealerships are not

permitted to be open on Sunday. Violations are a

misdemeanor, and dealers can face the suspension

or revocation of their license upon conviction.

An area of dense regulation is Michigan’s

environmental and natural resources laws.

The primary statute is the Natural Resources and

Environmental Protection Act (NREPA), and it

governs the management of state lands, air and water

pollution, solid and hazardous waste disposal,

wetland protection and other topics. Fines and

imprisonment can be incurred for numerous

violations: unpermitted removal of forest products

from state lands;

improper disposal of litter

produced at a health facility;

improper disposal of

used motor oil;

improper disposal of scrap tires;

driving motor vehicles in a state wilderness area;

and removal of certain abandoned property on the

bottomlands of the Great Lakes.

A variety of other offenses can result in fines and

imprisonment: Members of the Michigan Legislature

who resign from office are prohibited from lobbying

for the remainder of their term of office. A violation

is punishable by a $1,000 fine and 90 days in prison.

Unlicensed dogs are to be located by the sheriff and

destroyed, with the dog owner held accountable.

The national anthem may not be played as part of a

medley, and dancing to “The Star Spangled Banner”

is strictly prohibited.

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8 MACKINAC CENTER FOR PUBLIC POLICY

The conduct described above is but a sample of

Michigan law that criminalizes behavior that could

result in the application of strict liability. These are

examples of statutes where the Legislature should

indicate the level of intent necessary for culpability,

but each of these statutes is silent on mens rea.

Recommendations

Michigan’s criminal justice system would benefit from

a standardization of the application of mens rea

requirements. The lack of a clear mens rea provision

in criminal statutes provides inadequate guidance to

prosecutors and judges and can result in inconsistent

interpretation by the courts. The criminal justice

system is taxed with the time and expense of litigating

questions of legislative intent when a statute is unclear

or poorly drafted.

The proliferation of strict-liability crimes has been

addressed, in part, by the Model Penal Code. The

MPC was developed in 1962 by the American Law

Institute, a nonprofit that assists legislatures in

evaluating, modernizing and standardizing their

criminal codes. As it relates to the element of intent

in criminal cases, one of the MPC’s important

contributions was to standardize the levels of

culpability into four states of mind: “purposely,”

“knowingly,” “recklessly” and “negligently.”

These states of culpability are defined in the MPC

as follows:

◆ Purposely: “A person acts purposely … when

… it is his conscious object” to engage in specific

conduct or to cause a specific result.

◆ Knowingly: “A person acts knowingly … when

… he is aware that it is practically certain that his

conduct will cause” a specific result.

◆ Recklessly: “A person acts recklessly … when

he consciously disregards a substantial and

unjustifiable risk” that his conduct will produce

a specific result. “The risk … involves a gross

deviation from the standard of conduct that

a law-abiding person would observe in the

actor’s situation.”

◆ Negligently: “A person acts negligently … when

he should be aware of a substantial and

unjustifiable risk ... will result from his conduct.

The risk must be … a gross deviation from the

standard of care that a reasonable person would

observe in the actor’s situation.”

In addition to defining culpable states of mind,

the MPC prescribes a default culpability as when

“a person acts purposely, knowingly or recklessly

with respect [to the offense].”

If a statute is silent

on the intent required to establish a criminal

offense, MPC recommends using the default

culpability provision. Legislatures are still capable

of adopting statutes that impose strict liability for

certain crimes, but would need to do so explicitly.

Fourteen states have adopted a default mens rea

provision modeled on or similar to MPC’s.

In addition to the MPC’s standards of culpability,

the American Legislative Exchange Council has

published model legislation that codifies default

rules of application for criminal intent (see

Appendix B).

The Michigan Legislature should expressly affirm the

fundamental importance of mens rea and should adopt

a default mens rea provision to apply to statutes that

fail to clearly define the intent required for a criminal

conviction. If a statute is silent on the requisite state of

mind to establish a crime, the default mens rea

provision would be incorporated. The Legislature

would be free to adopt new public welfare offenses,

but would need to explicitly state its intent to do so.

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TEXAS PUBLIC POLICY FOUNDATION 9

Conclusion

The Michigan Legislature has regulated all manner of

conduct to promote public safety and welfare.

Individuals can be charged, convicted and imprisoned

for committing misdemeanors and felonies while

harboring no criminal intent. Penalties associated with

these crimes are often severe, and the resulting damage

to one’s reputation and livelihood can be significant.

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.

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10 MACKINAC CENTER FOR PUBLIC POLICY

AppendixA

Michigan courts have addressed the issue of culpability

in numerous cases. A review of these cases illuminates

the analytical process the courts have adopted.

Court Decisions Recognizing a

Mens Rea Element

In People v. Trotter, the Court of Appeals examined

the validity of Michigan’s “dangerous animals”

statute.

The defendant was convicted of involuntary

manslaughter after her two bullterriers attacked and

killed her 2-year-old nephew. The defendant argued

that the statute violated due process by creating a

strict-liability crime. The court disagreed with the

defendant’s characterization of the statute, holding

instead that the Legislature intended to codify an

aspect of the common-law offense of manslaughter

(death that results from gross negligence), and

therefore, read mens rea into the statute.

Noting that

one of the bullterriers had previously bitten a visitor,

the court upheld the conviction.

In People v. Lardie, the Michigan Supreme Court

reversed a Court of Appeals decision that had held that

driving while intoxicated and causing death of another

was a strict-liability, public welfare offense with no

requirement for the prosecution to prove mens rea.

The Supreme Court stated that the “operating while

intoxicated” crime at issue was not a public welfare

offense as those offenses “are designed to protect the

public welfare by placing the burden of protecting

society on a person otherwise innocent but standing in

responsible relation to public danger.”

Additionally,

the court noted that penalties for public welfare crimes

are typically small and do not inflict substantial harm

to a person’s reputation.

The Supreme Court held in Lardie that the Legislature

intended that general intent must be proven for a

conviction for driving while intoxicated, which could

be shown, for example, by proving that the defendant

knowingly consumed alcohol or a controlled substance

and acted voluntarily in deciding to drive.

In People v. Jensen, the Court of Appeals upheld the

conviction of an HIV-positive woman who failed to

inform a sexual partner of her condition, in violation of

Michigan law.

The defendant argued that the law was

unconstitutional, because it contained no mens rea

requirement. She also argued that the law should

require a showing of specific intent to harm the victim.

Relying on Lardie, the court reasoned that the

Legislature intended to require some type of intent as a

predicate to a conviction, and that by engaging in

unprotected sexual contact, “the requisite intent is

inherent in the HIV-infected person’s socially and

morally irresponsible actions.”

The court expressly

noted that the statute does not impose strict liability as

an infected person is free to have sexual contact

provided his or her partner is informed.

The Court of Appeals held that using a counterfeit

cigarette tax stamp was not a public welfare offense in

People v. Nasir.

The defendant, a party store

manager, had been convicted and sentenced to 18 to

120 months’ imprisonment after the trial court ruled

that the Michigan statute imposes strict liability. The

appeals court reasoned that the tax stamp law is a

revenue law, and the harm to the public at large from

the loss of revenue is not severe enough to hold

violators strictly liable. Further, the severity of the

punishment could inflict substantial damage to a

defendant’s reputation.

Finally, the court reasoned

that imposing strict liability in such cases as these

could criminalize “a broad range of apparently

innocent conduct.”

For example, an innocent retail

customer could buy a pack of cigarettes bearing a

counterfeit stamp and be held liability under a strict

reading of the law.

In People v. Tombs, the Michigan Supreme Court

examined whether a statute prohibiting the

distribution or promotion of child sexually abusive

material required that the act be performed with

_________________________________________________________________________________________________

TEXAS PUBLIC POLICY FOUNDATION 11

criminal intent.

Upon leaving the company, a former

Comcast employee returned his work computer. Child

pornography material was subsequently discovered on

that computer and the former employee admitted to

obtaining the files. The individual was charged and

convicted of distributing or promoting child sexually

abusive material and possessing the material.

The court held that since the statute forbidding the

distribution and promotion of child sexually abusive

material did not include an explicit mens rea

requirement, a longstanding principle applied: that

absent an indication from the Legislature that it

wanted to dispense with a criminal intent element,

criminal statutes are presumed to include such a

requirement.

Noting the statute’s use of active terms

— “distribute,” “promote,” and “receives for the

purpose of distributing or promoting” — the Supreme

Court concluded that the Legislature contemplated

intentional conduct by the accused.

Omitting a mens

rea requirement, wrote the court, could result in a

conviction of a person who lacked the criminal intent

to distribute child sexually abusive material. For

example, the Comcast employees who discovered the

material on the defendant’s computer who transferred

the files among themselves and then to the police

could be charged and convicted under a strict liability

statute, though their only desire was to turn the matter

over to law enforcement. The court concluded that the

Legislature “intended that criminal intent to distribute

be an element” of a conviction under the statute.

Reviewing the facts of the case, the Supreme Court

concluded that there was insufficient evidence to

support a conviction for distribution or promotion of

child sexually abusive material. The evidence indicated

that the defendant did not expect his former employer

to discover the material, but that it would be destroyed

during a routine reformatting of the computer’s hard

drive.

Nevertheless, the defendant’s conviction for the

lesser offense of possessing the illicit images was upheld.

Court Decisions Recognizing Strict Liability

In Berry v. Michigan Racing Com’r, a licensed trainer

of harness racehorses entered two horses in separate

races in 1981.

A urinalysis of the horses found

evidence of a prohibited substance in each horse. The

trainer’s license was suspended for two years pursuant

to the “insurer rule,” which imposed absolute

responsibility for the condition of the horses upon the

trainer.

The Court of Appeals pointed out the public

interest in protecting the wagering public from fraud

or corruption, along with the state’s economic interest

in preserving the business. Those interests, combined

with the language of the statute indicating that trainers

are ultimately responsible for guaranteeing the

conditions of their horses, led the court to conclude

that the statute imposed strict liability for violations.

In People v. Quinn, the Michigan Supreme Court held

that knowing whether a firearm was loaded or not was

not required to convict someone for transporting a

loaded weapon in a vehicle.

The defendant argued

that the law should require a showing of knowledge

that a firearm was loaded in order to exclude

application of the law to innocent violations. While the

court acknowledged that the law required knowledge

of the presence of a firearm, it held that the duty

imposed by the statute is to protect the public from

accidental discharge, irrespective of whether the

individual knew the firearm was loaded. Thus, proof

that a defendant knew the transported firearm was

loaded was not required.

In People v. Likine, the Michigan Supreme Court held

that the failure to pay court-ordered child support is a

strict-liability offense.

The court looked to the history

of the statute in reaching this determination; a

previous version of the statute stated that a father or

husband would be guilty of a felony if he refused or

neglected to pay court-ordered support. The law was

amended in 1999 and the relevant portion of the

* This statute was subsequently repealed by P.A.1995, No. 279, § 35.

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12 MACKINAC CENTER FOR PUBLIC POLICY

statute stated: “[I]f the court orders an individual to

pay support ... for a child of the individual, and the

individual does not pay the support ... the individual is

guilty of a felony ... .”

Given the Legislature’s removal

of language concerning refusal or neglect, the court

determined that the Legislature intended to impose

strict liability.

Earlier cases offered guidance on what offenses would

be considered public welfare offenses. A bar keeper

was convicted when alcohol was sold in his bar

on Sunday without his knowledge.

In People

v. Hatinger, the Supreme Court held that a statute’s

purpose would be defeated if the state were required

to prove guilty knowledge for the sale of intoxicating

liquor or impure foods.

The variety of statutes enacted by the Legislature

occasionally results in inconsistent application of the

analysis of strict-liability offenses. For example, in

People v. Schumacher, Kenneth Schumacher was

convicted of the unlawful disposal of scrap tires, and

was sentenced to 270 days in jail and a $10,000 fine.

The disposal of scrap tires is regulated by the Natural

Resources and Environmental Protection Act, a

comprehensive statutory scheme designed to protect

the state’s environment and natural resources.

appeal, the defendant argued that the statute did not

impose strict liability.

The Court of Appeals determined that the statute

pertinent to this case “contains no language from

which it may be inferred that guilty knowledge is a

required element for offending [the statute’s]

mandate[.]”

Based on statute’s silence regarding

intent, the court held that the statute created a public

welfare offense.

The Schumacher ruling seemingly reversed the

presumption of mens rea and held that legislative

silence is a strong indication that strict liability should

be imposed.

While no cases have cited Schumacher for

this proposition, a trend in this direction could

seriously erode Michigan’s mens rea jurisprudence.

* The Michigan Supreme Court declined to review the Court of Appeals

decision. People v. Schumacher, 480 Mich. 1043 (2008).

_________________________________________________________________________________________________

TEXAS PUBLIC POLICY FOUNDATION 13

AppendixB

The Criminal Intent Protection Act is model legislation

promulgated by the American Legislative Exchange

Council. It establishes default culpability requirements

if the language of a statute does not specify the criminal

intent required to establish an element of a crime.

Criminal Intent Protection Act

Summary

To protect persons from unjust punishment under

vague or ambiguous criminal offenses by codifying

default rules of application for criminal intent (mens

rea) requirements within criminal law.

Model Legislation

{Title, enacting clause, etc.}

Section 1. {Title.} This Act may be cited as the “The

Criminal Intent Protection Act.”

Section 2. {Legislative Purpose and Findings.}

The purpose of this Act is to enact default rules of

application to ensure that criminal intent (mens rea)

requirements are adequate to protect persons against

unjust charges and convictions where the law has

heretofore failed to clearly and expressly set forth the

criminal intent (mens rea) requirements in the text

defining the offense or penalty.

Section 3. {Culpability Requirements.}

(A) Culpability Requirements.

(1) The provisions of this section shall apply to any

criminal offense or penalty.

(2) Criminal Intent Required Unless Otherwise

Provided – When the language defining a criminal

offense or penalty does not specify the criminal intent

required to establish an element of the offense or

penalty, then such element shall be established only if

a person acts:

(a) with the conscious object to engage in conduct of

the nature constituting the element;

(b) with the conscious object to cause such a result

required by the element;

circumstances required by the element or with the

belief or hope that such circumstances exist; and

(d) with either specific intent to violate the law or with

knowledge that the person’s conduct is unlawful.

(3) Prescribed Criminal Intent Requirement Applies

To All Elements – When the language defining a

criminal offense or penalty specifies the criminal intent

required to establish commission of an offense or

imposition of a penalty without specifying the

particular elements to which the criminal intent

requirement applies, such criminal intent requirement

shall apply to all elements of the offense or penalty,

including jurisdictional elements.

(4) For the purposes of this section, the following

definitions apply:

(a) The term “criminal offense” shall include any

portion of a statute, rule, or guidance that defines one

or more elements of a violation of law that may be

punished by a criminal penalty.

(b) The term “penalty” shall include any criminal fine,

criminal restitution, criminal forfeiture, term of

imprisonment or confinement, probation, debarment,

or sentence of death imposed upon a defendant by the

authority of the law and the judgment and sentence of

a court.

any natural person, corporation, or unincorporated

association.

_________________________________________________________________________________________________

14 MACKINAC CENTER FOR PUBLIC POLICY

(d) The term “rule” shall have the definition set forth

in section

_____ of this title and shall include any interpretive

rule, guidance, or other agency publication that may

have the effect of altering the scope of state criminal

liability of any person or entity, but shall not include

any order issued as part of an adjudication under

section ____of this title.

(e) The term “guidance” shall include any guidance,

interpretative statement, or binding enforcement

policy issued by any agency.

(f) The term “agency” shall have the definition set forth

in Title 5, United States Code, Section 551(1) [or cite

to state equivalent if applicable].

(g) The term “element” shall mean (i) such conduct,

(ii) such attendant circumstances, or (iii) such a result

of conduct as:

(i) is included in the description of the forbidden

conduct in the definition of the offense; or

(ii) establishes the required kind of culpability; or

(iii) negatives an excuse or justification for such

conduct; or

(iv) negatives a defense under the statute of

limitations; or

(v) establishes jurisdiction or venue.

Section 4. {Severability clause.}

If any provision of this [Act] or the application thereof

to any person or circumstance is held unconstitutional

or otherwise invalid, the remaining provisions of this

[Act] and the application of such provisions to other

persons or circumstances shall not be affected thereby.

Section 5. {Repealer clause.}

Section 6. {Effective date.}

_________________________________________________________________________________________________

TEXAS PUBLIC POLICY FOUNDATION 15

Endnotes

1 Harvey Silverglate, Three Felonies a Day: How the

Feds Target the Innocent (Encounter Books, 2011);

Morissette v. U.S., 342 U.S. 246 (1952); Morissette

v. U.S., 187 F.2d 427 (6th Cir. 1951).

2 Morissette v. United States, 342 U.S. at 248.

3 John S. Baker and William J. Haun, “The ‘Mens Rea’

Component Within the Issue of the Over-Federalization

of Crime,” Engage 14, no. 2 (Jul. 2013): 24-29, accessed

Nov. 15, 2013, http://goo.gl/Gzi8Tc.

4 William Blackstone, “Commentaries on the Laws of

England,” 1758, accessed Nov. 19, 2013,

http://goo.gl/uc3a2X.

5 Quoted in Morissette v. United States, 342 U.S. at

252 n.9.

6 Ibid., 251-52.

7 Ibid., 247.

8 Ibid., 250.

9 Ibid., 250-51.

10 Ibid., 263.

11 Ibid., 263.

12 People v. Lardie, 452 Mich. 231, 241 (1996). Lardie

was subsequently overturned by the Michigan Supreme

Court on grounds unrelated to the issues discussed in

this paper.

13 Ibid., 240.

14 People v. Cash, 419 Mich. 230 (1984).

15 People v. Lardie, 452 Mich. at 240-41 (internal

citations omitted).

16 Morissette, 342 U.S. at 254.

17 Francis B. Sayre, Public Welfare Offenses, 33

Col.L.Rev. 55, 73, 84 (1933), cited by Morissette, 342 U.S.

at 262 n.20.

18 People v. Snowberger, 113 Mich. 86 (1897) and

People v. Waldvogel, 49 Mich. 337 (1882).

19 Catherine L. Carpenter, “On Statutory Rape, Strict

Liability, and the Public Welfare Offense Model,”

American University Law Review 53, no. 2 (2003): 324,

accessed Nov. 20, 2013, http://goo.gl/Tq0oaA.

20 Brian W. Walsh and Tiffany M. Joslyn, “Without

Intent: How Congress Is Eroding the Criminal Intent

Requirement in Federal Law” (The Heritage Foundation

and the National Association of Criminal Defense

Lawyers, May 5, 2010), accessed Nov. 20, 2013,

http://goo.gl/M5Tglr.

21 Lardie, 452 Mich. at 240.

22 People v. Quinn, 440 Mich. 178, 198 (1992).

23 People v. Roby, 52 Mich. 577, 579 (1884).

24 Lardie, 452 Mich. at 239.

25 Ibid., 241.

26 People v. Kowalski, 489 Mich. 488, 498, reh’g denied,

490 Mich. 868 (2011).

27 Ibid., 499.

28 Lardie, 452 Mich. at 250. In People v. Quinn, the

Michigan Supreme Court summarized several factors

courts have relied upon to determine whether a

legislature dispensed with the mens rea requirement:

“(1) the statute’s legislative history or its title, (2)

guidance to interpretation provided by other statutes, (3)

the severity of the punishment provided, (4) the severity

of potential harm to the public, (5) the opportunity to

ascertain the true facts, and (6) the difficulty

encountered by prosecuting officials in proving a

mental state.”

29 Andrew M. Grossman, “The Unlikely Orchid

Smuggler : A Case Study in Overcriminalization”

(The Heritage Foundation, Jul. 27, 2009), accessed

Nov. 20, 2013, http://goo.gl/3q9UVG.

_________________________________________________________________________________________________

16 MACKINAC CENTER FOR PUBLIC POLICY

30 John C. Coffee, “Does Unlawful Mean Criminal:

Reflections on the Disappearing Tort/Crime Distinction

in American Law,” Boston University Law Review 71

(1991): 201–252, accessed Nov. 20, 2013,

http://goo.gl/0VcW5h.

31 MCL § 287.893.

32 MCL § 287.899(2).

33 MCL § 324.52901; MCL § 324.52909.

34 MCL § 445.301; MCL § 445.305.

35 MCL §§ 435.251-254. The law allows for certain

exceptions and does not apply to counties with a

population under 130,000.

36 MCL § 324.2156.

37 MCL § 324.8905.

38 MCL § 324.16704.

39 MCL § 324.16902.

40 MCL § 324.35106.

41 MCL § 324.76107.

42 MCL § 4.416a.

43 MCL § 287.277.

44 MCL § 750.542.

45 Model Penal Code § 2.02(2)(a)-(d).

46 Ibid., § 2.02(3).

47 John S. Baker, “Mens Rea and State Crimes”

(The Federal Society, Jul. 2012), 12, accessed

Nov. 20, 2013, http://goo.gl/VJQ1GU.

48 People v. Trotter, 209 Mich. App. 244 (1995).

49 Ibid., 248.

50 Lardie, 452 Mich. at 237.

51 Ibid., 254 (citations and internal quotation marks

omitted).

52 People v. Jensen, 231 Mich. App. 439 (1998).

53 Ibid., 453.

54 Ibid., 455.

55 People v. Nasir, 255 Mich. App. 38 (2003).

56 MCL § 205.428(6) prohibits the manufacture,

possession or use of a counterfeit tax stamp, and is

punishable for up to 10 years imprisonment and a fine of

up to $50,000.

57 Nasir, 255 Mich. App. at 44.

58 Ibid.

59 People v. Tombs, 472 Mich. 446 (2005).

60 MCL § 750.145c(3)-(4).

61 Ibid., 456-57, 466.

62 Ibid., 457.

63 Ibid., 459.

64 Ibid., 461.

65 Berry v. Michigan Racing Com’r, 116 Mich.

App. 164 (1982).

66 People v. Quinn, 440 Mich. 178 (1992).

67 People v. Likine, 492 Mich. 367 (2012).

68 MCL § 750.165(1).

69 People v. Roby, 52 Mich. 577, 579 (1884).

70 People v. Hatinger, 174 Mich. 333 (1913).

71 People v. Schumacher, 276 Mich. App. 165 (2007).

72 MCL §§ 324.101 et seq.

73 Schumacher, 276 Mich. App. at 173.

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