Proud to report that my home state has recently made it a little harder to unwittingly commit a crime. On Friday, Ohio Gov. John Kasich signed into a law Senate Bill 361, aimed at shielding individuals and small businesses from prosecution when they accidently or unknowingly break one of the state's myriad rules, regulations, or criminal statutes.
"In recent years, states across the nation have seen an upsurge in the size and scope of their criminal codes, paired with an ever-growing labyrinth of rules and regulations that increasingly criminilize ordinary conduct," note Manhattan Institute heads Isaac Gorodetski and James R. Copland at Economics21. "Ohio's SB 361 will provide a template that other states should embrace" to counter this trend of overcriminalization.
Under the new law, legislators must explicitly specify the "degree of mental culpability" required for someone to be guilty of a newly-created crime. If a criminal statute will still apply in the absence of intent (known as strict liability), then lawmakers must specifically provide for that. Otherwise, unknowing violations of the law or regulation are not enough to render someone criminally guilty.
For existing crimes, the legislation specifies that individuals with no intent to do harm or no knowledge of their action's criminality cannot be guilty unless the criminal statute specifically says intent is irrelevant or strict liability is "plainly indicate(d)". In the absence of such indications, "the offense is established only if a person acts recklessly."
With SB 361, "the Ohio legislature has reclaimed from the courts the authority to define crimes in a way that is consistent with the longstanding principle that a mistake without intent should not generally be criminal," write Gorodetski and Copland.
This important shift will not affect the prosecution of conduct traditionally thought of as criminal—crimes relating the public safety and public order—but it will limit the use of the inefficient criminal-justice system to enforce mundane regulatory offenses. As such, the Ohio legislation will promote good stewardship of taxpayer resources and will encourage both entrepreneurship and volunteerism by removing the threat of prosecution that has hung over Buckeye State residents.
In testimony before the Ohio Senate's Criminal Justice Committee, Robert Alt, president & CEO of free-market think tank The Buckeye Institute, pointed out that "traditionally, to be convicted of a criminal offense, a prosecutor must prove beyond a reasonable doubt that the accused committed a guilty act, or actus reus, and that she had a guilty mind, or mens rea." Though there's been a "disturbing trend" for legislators to criminalize conduct without any mens rea requirement, Ohio's new law will force state senators and representatives to actually think before they blanketly criminalize.