The conservative approach to criminal justice:
fighting crime, supporting victims, and protecting taxpayers.

In Support of Mens Rea Protections in Ohio

| December 8, 2014

Being convicted of a crime is a very serious event that can close many doors in a person’s life. This is why there are many measures taken to ensure that only the guilty are treated as such.

But now many states, including Ohio, have removed a key historical protection of citizens, mens rea. Mens rea, or ‘guilty mind,’ is the element of a crime that requires the perpetrator to realize that what they are doing is wrong or illegal. Without that requirement, a violation of a minor regulation can be criminal and punishable by jail time.

According to Right on Crime senior policy analyst Vikrant Reddy, this change in mental culpability requirements already lead to the trial of the Ohio Stowers family for violating a statute that criminalized operating a retail food establishment without a license, a law that they allege they did realize affected their private-membership food co-op. Despite winning their case on appeal, the Stowers faced possible jail time without any intent to break the law.

Among the states Ohio is presenting itself with the opportunity to take a stand against this endangerment of its citizens. Senator Seitz’s bill, SB 361 requires that all bills that are silent regarding mental state of the offender, should be construed to include a mens rea requirement. This bill offers Ohio the ability to be a safer state and to lead the way in mens rea reform across the country. Below is Reddy’s testimony from an appearance before the Ohio Senate on December 2, 2014.

Prepared Testimony of Vikrant P. Reddy
Senior Policy Analyst, Texas Public Policy Foundation

Re: Ohio SB 361
December 2, 2014

Thank you for the opportunity to appear before you today to discuss SB 361, a bill that will make Ohio a national leader in combating overcriminalization. My name is Vikrant Reddy, and I am a senior policy analyst in the Center for Effective Justice at the Texas Public Policy Foundation (TPPF). The Foundation’s mission is to promote and defend liberty, personal responsibility, and free enterprise in Texas and the nation with academically sound research. We seek to advance these goals in several different policy areas. My work concerns research and advocacy in the area of criminal justice.

TPPF has supported legislative reforms in Texas that have coincided with the lowest crime rate the state has enjoyed since 1968 and with significant budget savings.[1] TPPF is also well-known for advancing these reform ideas in states throughout the nation with its national initiative, Right On Crime.[2] We were broadly supportive of proposals to reform Ohio’s criminal justice system in 2011 that resulted in HB 86.

One of the cornerstones of the Foundation’s criminal justice work is addressing overcriminalization. This term refers to the use of the criminal sanction to punish actions that historically would not have been considered crimes. Overcriminalization occurs in a variety of ways. Most obviously, governments simply create too many criminal statutes. In my home state of Texas, for example, we have eleven separate crimes relating to oyster harvesting.[3]

SB 361, however, is targeted at addressing a more insidious kind overcriminalization: the erosion of mens rea protections. Civil and criminal law are distinguished by the requirement that a criminal must have a guilty state of mind (mens rea), not merely a guilty action (actus reus). Roscoe Pound, a major twentieth century legal thinker, wrote that a crime is something “based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”[4]

Criminal statutes have historically included a level culpability—such as intentionally, knowingly, or recklessly—that must be demonstrated in order to convict a defendant. Nevertheless, an increasing number of offenses—often regulatory offenses—dispense with the mens rea requirement altogether. Alternatively, they require mere criminal negligence rather than intentional, knowing, or reckless conduct.[5] This, in effect, is often the same thing as eviscerating the mens rea requirement altogether.[6]

In a 2013 report, the Texas Public Policy Foundation detailed several examples of how these weakened mens rea requirements have resulted in abuses in several states.[7]

In nearby Pennsylvania, for instance, consider the Clean Streams Law and Solid Waste Management Act, both environmental protection statutes. XTO Energy, a company operating in Pennsylvania’s Marcellus Shale formation, violated federal laws in 2010 when it spilled wastewater. XTO paid a $100,000 fine and deployed a plan to enhance its wastewater management practices. The state of Pennsylvania, however, additionally decided to pursue criminal charges against the company even though there is no evidence that it “intentionally, recklessly, or negligently discharged” the wastewater. The attorney general countered this argument by saying that under the relevant laws, the state does not need to demonstrate intent.[8]

Michigan, yet another neighboring state, provides an example of this problems affects ordinary individuals, not merely large firms. In Michigan, it is illegal to operate a daycare without the appropriate license. Lisa Snyder, who had no knowledge of these requirements, was prosecuted when she offered to watch her neighbors’ children at her home on weekday mornings because the school bus picked up students near her driveway. Michigan officials threatened Snyder with various fines and jail time for “operating a daycare” when though she lacked CPR training, had not submitted a to premises inspection, or done several of the other things required to obtain a day care license. The case became a cause célèbre, and the prosecution was only halted after the intervention of the governor.[9]

Ohio, of course, is not immune. Consider this story, which my colleague Marc Levin and Isaac Gorodetski of the Manhattan Institute told in a Cincinnati newspaper op-ed in February:

On the morning of Dec. 1, 2008, the Ohio Department of Agriculture and Lorain County Health Department agents raided the home of the Stowers family and seized the family’s food, cellphones and personal computers. They were accused of violating a statute that criminalized operating a retail food establishment without a license, even though the Stowers believed they could maintain their private-membership organic food cooperative without permission from the government. While the Stowers won their case on appeal, they could have faced jail time even if they had no intent to violate any law.[10]

This problem could be addressed in the states—and at the federal level—by establishing a default mens rea in the state law. The American Legislative Exchange Council (ALEC), for example, has recommended model legislation that would apply a strong mens reaelement to all criminal laws that are silent on this issue.

Ohio is now proposing to be the first state in the nation to pass this important legislative reform. Senator Seitz’s bill, SB 361, proposes the adoption of a default mens rea statute in Ohio. Although there are many components to the legislation, the critical language is the following: “When language defining an element of an offense neither specifies culpability not plainly indicates a purpose to impose strict liability, the element of the offense is established only if a person acts recklessly.”

Legislators should of ensure that mens rea protections are included in every criminal law that is passed, but in those instances when the protections are lacking, this default language will be able to protect Ohioans. It ensures that an appropriate culpable mental state will always apply in every case.

 


[1] The Council on State Governments Justice Center, Justice Reinvestment State Brief: Texas (2007).

[2] See www.RightOnCrime.com.

[3] http://www.politifact.com/texas/statements/2013/mar/27/scott-henson/scott-henson-says-texas-has-11-different-felonies-/

[4] Roscoe Pound, Introduction to Sayre, Cases on Criminal Law __ (1927).

[5] “[T]o ensure that only persons who are truly culpable can be convicted and punished, the definitions of malum prohibitum offenses must include protective mens rea requirements. Unfortunately, many of the thousands of malum prohibitum offenses in federal law do not….Over 57 percent of the offenses considered by the 109th Congress contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment.” Brian Walsh and Tiffany Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law (Heritage Foundation and National Association of Criminal Defense Lawyers, May 2010), 3-4. The arguments made by Walsh and Joslyn focus on federal overcriminalization, but may reasonably extend to state overcrminalization too. Criminalizing ordinary business conduct is not sound public policy merely because the law is enacted by a state legislature or state agency rather than by Congress or a federal agency.

[6] “[T]o ensure that only persons who are truly culpable can be convicted and punished, the definitions of malum prohibitum offenses must include protective mens rea requirements. Unfortunately, many of the thousands of malum prohibitum offenses in federal law do not….Over 57 percent of the offenses considered by the 109th Congress contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment.” Brian Walsh and Tiffany Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law (Heritage Foundation and National Association of Criminal Defense Lawyers, May 2010), 3-4. The arguments made by Walsh and Joslyn focus on federal overcriminalization, but may reasonably extend to state overcrminalization too. Criminalizing ordinary business conduct is not sound public policy merely because the law is enacted by a state legislature or state agency rather than by Congress or a federal agency.

[7] See Vikrant P. Reddy, Overcriminalization in the States (2013).

[8] Andrew Maykuth, “Shale criminal charges stun drilling industry,” Philadelphia Inquirer, Sept. 12, 2013.

[9] Tahman Bradley, “Michigan to Mom: Shun Daughter’s Schoolmates,” ABCNews.com, Sept. 30, 2009.

[10] http://www.cincinnati.com/article/20140204/EDIT02/302040020/OPNION-Ohio-Legislature-on-notice?gcheck=1&nclick_check=1

Share

RIGHT ON CRIME is a national campaign to promote successful, conservative solutions on American criminal justice policy—reforming the system to ensure public safety, shrink government, and save taxpayers money. By sharing research and policy ideas and mobilizing strong conservative voices, we work to raise awareness of the growing support for effective reforms within the conservative movement. We are transforming the debate on criminal justice in America.

www.scriptsell.net