Overcriminalizing the Wolverine State: A Primer and Possible Reforms for Michigan

In recent years, Michigan’s criminal law has put into legal jeopardy a woman innocently helping her neighbor’s children board a school bus; a man who unknowingly deposited spare tires with a facility lacking proper state permits; and a business owner who expanded his parking lot on land that state regulators later deemed a “wetland.”

At present, Michigan’s vast, disorganized criminal law inherently places the Wolverine State’s residents at risk of unintentionally violating a growing array of regulatory crimes that are difficult, if not impossible, to discover and understand. For example:

• Michigan’s penal code contains 918 sections — eight times the number of the Model Penal Code and significantly more than that of neighboring states Ohio, Illinois, and Wisconsin.


• Michigan has at least 3,102 crimes — 1,209 felonies and 1,893 misdemeanors — and most of these (48 percent of felonies and more than 76 percent of misdemeanors) lie outside the penal code.


• Michigan has created, on average, 45 crimes annually over the last six years, 44 percent of which were felonies and 73 percent of which fell outside the penal code.


• More than 26 percent of felonies and more than 59 percent of misdemeanors on the Michigan books do not explicitly require the state to make a showing of intent (mens rea) on the part of the accused.

The size as well as the breadth of Michigan’s criminal law not only places citizens in legal jeopardy but also creates a serious risk that prosecutions will vary markedly from jurisdiction to jurisdiction. Further, it threatens to divert scarce resources away from the enforcement of serious violent and property crimes. To address this overcriminalization, Michigan policymakers should consider:

1. Creating a bipartisan legislative task force to conduct hearings and set guiding principles for lawmakers when creating new criminal offenses, with an emphasis on organizing and clarifying criminal laws for state residents.


2. Creating a commission, or charging the Michigan Law Revision Commission, to review the criminal law and consolidate, clarify, and optimize the state’s current criminal statutes.


3. Enacting a default mens rea provision, ensuring that to be convicted of a crime requires a showing of intent, unless the legislature clearly specifies otherwise.

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James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute.