The Conundrum of Strict Liability Crimes (2)
As discussed in part one of this series, strict liability crimes—criminal offenses which do not require the prosecution to prove intent (mens rea)—arose in the late 19th and early 20th centuries in response to urbanization and industrialization. These laws, often referred to as public welfare offenses, were typically directed at the sale of alcohol, foodstuffs, and narcotics, along with pollution and public nuisance offenses. For better or worse, the list of strict liability offenses grew throughout the latter half of the 20th Century, leading judges, lawyers, and legal academics to question not only their fairness, but their constitutionality. Despite calls to curtail the promulgation of strict liability crimes, many states continue to pass them, including Michigan. A number of state legislators have, however, taken steps to pass intent statutes which require the presence of general intent for most crimes, regardless of statutory language. Michigan is not one of them.
In order to rectify this matter, the Michigan Supreme Court has clarified that “as a general rule ‘strict liability offenses are disfavored.’” Rambin vs. Allstate Ins. Co., 495 Mich. 316, 327 (2014) (quoting People v. Likine, 492 Mich. 367, 391 (2012)). “Criminal intent is ordinarily an element of a crime even where the crime is created by statute.” People v. Lardie, 452 Mich. at 239 (quoting People v. Rice, 161 Mich. 657, 664 (1910)). As the Michigan Supreme Court in Rambin continues:
To that end, courts will infer an element of criminal intent when an offense is silent regarding mens rea unless the statute contains an express or implied indication that the legislative body intended that strict criminal liability be imposed. Further, this presumption in favor of a criminal intent or mens rea requirement applies to each element of a statutory crime. This presumption stems from the [u]nqualified acceptance of this doctrine by English common law in the Eighteenth Century. For this reason, the existence of mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence. With this general rule in mind, we examine the language of the statute itself to determine whether the statute imposes strict liability or requires proof of a guilty mind.
Rambin, 495 Mich. at 327-28 (internal quotation marks and citations omitted).
In other words, the Michigan Supreme Court has upheld a presumption in favor of intent for all elements of a statutory crime even if the statutory language is silent regarding intent. “When interpreting a criminal statute that does not have an explicit mens rea element,” the Michigan Supreme Court “do[es] not construe the Legislature’s silence as an intention to eliminate the mens rea requirement.” People v. Kowalski, 489 Mich. 488, 499, reh’g denied, 490 Mich. 868 (2011). In order to overcome this presumption in favor of intent for all elements of a statutory crime, courts must look to the language of the statute to assess the intent of the legislature to make the crime strict liability. Id. at 498. If the text of the statute is unclear, courts will also examine the legislative history to determine intent. Lardie, 452 Mich. at 250.
An open question that must be considered is how aware defense lawyers and lower-court judges are of this jurisprudence. A number of Michigan statutes, on their face, appear to call for strict liability, meaning that those individuals charged under them would not be able to mount a full defense in accordance with the principles of the Anglo-American criminal law tradition. While the Michigan Supreme Court has established a clear presumption in favor of retaining a general intent requirement for each element of a crime charged, it does leave open two “backdoors” by which a crime may still be interpreted as a strict liability offense: textual analysis or, if that proves ambiguous, legislative history.
Both of these adjunct pathways for determining whether or not a crime requires intent present their own significant challenges—challenges which will be reviewed in greater detail in the next installment of this series.