Reddy: In Support of Mens Rea Protections in Ohio

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.

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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

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Creeping Overcriminalization Threatens Ordinary Citizens

fishermanA fisherman is currently facing trial with the possibility of twenty years in prison for losing three fish. This type of rampant expansion of criminality endangers all people, and neglects a long honored judicial doctrine, the rule of lenity. This ensures that if there is a statute with two reasonable readings, the one that can be construed more leniently for the defendant must be chosen. This is a key protection of citizens’ rights in the criminal court, and ignoring it sets a dangerous precedent.

These days, calls for criminal justice reform are loudest on the political right. Corrections reform has advanced rapidly in conservative states like Texas and Georgia; Republicans like Mike Lee and Rand Paul are vocal advocates for reforming mandatory minimum sentencing; and Koch Industries is involved in a major project to improve indigent defense.

There are many reasons conservatives are engaging so deeply with criminal justice. One notable reason is that they tend to notice creeping “overcriminalization,” causing them to reflect more broadly upon the entire justice system.

 

Continue Reading at The Federalist

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Overcriminalization Goes to the Supreme Court

Ahead of oral arguments in U.S. v. Yates, legal experts demand an end to the proliferation of thousands of capricious federal statutory crimes

Austin, TX— In the run-up to the Supreme Court’s hearing of oral arguments in U.S. v. Yates, Right on Crime, the nationally recognized conservative criminal justice reform organization, will convene a briefing on over-criminalization and prosecutorial overreach.

In this case, a Florida law enforcement officer (deputized as a federal officer by the National Marine Fisheries Service) boarded the ship of a commercial fisherman, John Yates, for an inspection of his catch of more than 3,000 fish. The officer accused Yates of catching 72 undersized red grouper. Upon second count, however, the officer only found 69 groupers. He accused Yates of throwing fish overboard, and for this alleged disposal of evidence, a federal prosecutor criminally charged Yates with violating the “anti-document-shredding” provision of the 2002 Sarbanes-Oxley Act, which was passed in the wake of the 2001 Enron accounting scandal. The violation is punishable by up to 20 years in prison.

The assembled legal experts will discuss solutions to prosecutorial overreach of this sort, such as strengthening mens rea protections in statutes and eliminating certain crimes altogether.

Right On Crime’s parent organization, the Texas Public Policy Foundation, signed an amicus brief in Yates observing that the prosecutorial overreach in the case is part of a larger trend of over-criminalization in America. Modern federal criminal law provides for almost 5,000 crimes. Historically, “crime” was a term restricted to morally blameworthy actions, but today, many ordinary activities are captured by the term. Individuals have been threatened with prosecution (and in some cases served prison time) for importing lobsters in the wrong container, mislabeling paperwork on orchids, and helping injured animals.
 
Press Briefing on Over-criminalization and U.S. v. Yates, featuring:

  • Marc Levin, Policy Director, Right on Crime
  • Vikrant P. Reddy, Senior Policy Analyst, Right on Crime
  • Adeel Bashir, Counsel for Mr. John Yates
  • William Shepherd, National Association of Criminal Defense Lawyers
  • Paul J. Larkin, Jr., The Heritage Foundation
  • Pat Nolan, The American Conservative Union

 

Monday, November 3, 2014 at 1:30 PM

American Conservative Union
1331 H Street, NW |  Suite 500
Washington, DC

This event is sponsored by the Texas Public Policy Foundation, the American Conservative Union, the Heritage Foundation and the National Association of Criminal Defense Lawyers.

For more information or to arrange an interview, please contact Kevin McVicker with Shirley & Banister Public Affairs at (703) 739-5920 or [email protected].

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Overcriminalization in America: No Home for Justice

All Jack and his wife Jill Barron wanted was a home near their family for retirement. After going through all of the necessary permitting, they purchased the land where they intended to build. But soon the EPA alleged that the land might be a wetland and began restricting building on the site. Eventually the EPA brought felony charges on Jack for bringing gravel on to his property. This sparked a legal fight that threatened Jack with federal prison.

After extensive legal fees and a great deal of time and stress on the part of the couple, a jury decided that the property had not been proved to be a wetland and found Jack not guilty. But the EPA continues to require Jack to restore the property to its original state, prohibiting his development. [Read more...]

This is the first of a series of films that looks at what happens in an overcriminalized society. A couple can lose their life savings in legal fights through overgrown bureaucracy.

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Pat Nolan: Fear of Crime and the Prison Build Up

Pat Nolan, Director of the Center for Criminal Justice Reform at the American Conservative Union Foundation and Right on Crime Director of Outreach, talks about how being a former legislator and having served time in prison has made it clear for him to see the bureaucracy within the criminal justice system. This is a driving factor in his passion for reform. Here, on The Vera Institute “Justice In Focus”, he shares his experience.

 

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