Crime

Ohio Just Made It a Little Harder to Accidently Commit a Crime

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bridgetwillard/Flickr

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. 

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  1. Call me when a state, local, or the fedgov actually REDUCE THE NUMBER OF LAWS. Then we have something to talk about.

    Also, fuck Ohio. For EDG.

    1. The very fact that they felt like they needed this law is sickening.

      1. To clarify, I mean that its sickening that they would have so many arbitrary and capricious laws that they felt like they needed to protect ignorant people from them.

    2. Well fuck Michigan! Merry Christmas to you Almanian!

      I’m going for a 5 mile jog along the beach in 75 degree weather this morning. Later, I’m going to eat mozzarella sticks and pizza for lunch. Then, I plan to go to my local bar and get drunk and watch college basketball.

      Merry Christmas Reasonoids!

      1. Merry Christmas, EDG! Enjoy the fine weather!

  2. So they adopted the modern penal code? I know nothing of crim law outside of Texas, but I assumed that most states other than NY had done so.

  3. This is excellent, but mens rea should never have gone away. I don’t know if its loss is from courts or legislators, but it ought to be a requirement. Victimless crimes themselves stink, but if they’re going to be part of coercive government, then ignorance of victimless laws should be a valid legal excuse.

    1. Agreed. This is a necessary correction, but it should never have become necessary. It remains insufficient, but it is a hopeful indication.

    2. I agree with the exception of crimes committed by law enforcement. They should damn well know what is illegal.

  4. If an individual or company has no knowledge their actions are criminal, and no intent to do anyone harm, then maybe their “crime” shouldn’t be a crime at all.

    1. You’re a real funny guy.

      /the state

    2. Once they know that action is illegal, though, then any attempt to take that action is done with intent to harm. Practicing hairdressing is providing a service. Practicing hairdressing without a license, when you know you need one? That’s fraud or reckless endangerment or something.

      1. I’ve always wondered what they think would happen if people were allowed to cut hair without a license.

        Would there be a bunch of throats getting slit with razors by crazed maniacs who simply could not handle the high stress world of salon quality hair styling?

        Speaking of which, remember the time a SWAT team raided a barber shop over license compliance?

        Mark Steyn had the proper response:

        Where’s the so-called “party of small government” on this? Because, whatever else may be said about a regime that dispatches a Swat team to check barbering licenses, small government it’s not. You can’t complain about big, bloated, out-of-control government, and then make an exception when Hair Team Six wants to check Kelli-Sue’s curling permit.

        1. Occupational license, of course, is all about job and wage protection by those already doing that work. But legislators need a better excuse to create the licensing regime. In the case of barbering, it’s because, doncha know, all them unlicensed barbers won’t recognize lice, ringworm, or other skin diseases, and this is a public health issue. It takes up to 2000 hours (one year, full time) to be properly trained in such recognition skills.

          The excuse for plumbers was that back then (late 1800s), there was still a common misconception that bad smells alone could cause disease, and heavens forbid someone would plumb a house without traps.

          1. heavens forbid someone would plumb a house without traps.

            There is a tremendous incentive not to leave out traps, plumbing code or no.

            There is some reason to have some kind of certification for trades like plumbing and electrical work, but it could certainly be handled by a private, voluntary organization. And it is absurd that you basically have to be able to design and wire an industrial 3 phase installation if you want to be allowed to charge money to install a light fixture in someone’s house.

            1. Theoretically, the plumbing and electrical codes could be legitimate in that both of those things can involve connections to shared resources and infrastructure. If you wire your house wrong, not only could it be dangerous for you, it could damage your neighbors’ houses too.

              However, like all things they do, the state starts with a kernel of a legitimate idea and morphs it beyond all recognition, with the tacit support of the voters and the explicit support of the police.

              The better question to ask, really, is why is the state involved at all? Somebody owns the pipes, somebody owns the wires, why don’t we just have them set the rules and leave people free to explore other options if they don’t like them?

  5. So, now they won’t go to jail for all of those unknown laws they are breaking every day, they’ll just have the cops come and confiscate everything they own, and not shoot them down in cold blood if they’re lucky. I guess everyone in Ohio can sleep better at night now.

  6. Mens rea is so quaint. I mean, that’s like from back when old white guys had like slaves and stuff, right?

    1. That’s pretty much the attitude of some of the radfems where I went to law school.

  7. This is too confusing. Just list the things Ohioans are allowed to do.

    1. /the state

      1. Now, now, be fair.

        “Submit a request to apply for consideration that you might be granted contingent permission, revocable at any time. Upon receipt of any documentation, know that it is non-binding, non-reciprocal, and subject to reinterpretation as convenient to us. If you do not receive documentation, know that you may appeal and re-apply for final disapproval.”

        /the state

  8. My friend tells me that we are all the state so when a crime against the state is committed, we are all victims. He says many stupid things and ALWAYS thinks he’s right because his brain tells him so.

  9. I can hardly wait to see how the courts gut this in application.

    These, for example are not consistent with one another:

    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)”.

    and

    In the absence of such indications, “the offense is established only if a person acts recklessly.”

    The first sentence requires actual knowledge. The second sentence requires only recklessness, and is a significantly lower bar.

    1. If I read it correctly, doesn’t this new rule just get rid of the old “ignorance of the Law is no excuse” maxim?

  10. A heartwarming story about a good cop:

    Police officer ‘fired after 19 years on the force for trying to stop cop from choking and punching handcuffed black suspect in the face’

    Cariol Horne claims that she was fired from the Buffalo Police Department after 19 years for trying to stop an assault on a black suspect
    Horne says that Officer Gregory Kwiatkowsi ‘choked and punched Neal Mack in the face while he was handcuffed’
    What’s more, Horne claims that Kwiatkowski then punched her in the face when she attempted to stop the assault
    Horne, a mother of five, now works as a truck driver
    Kwiatkowski was recently indicted on federal civil rights violations after an incident in 2009 when he and two cops ‘shot a black teenager with a BB gun while the boy was handcuffed and in their squad car’

    http://www.dailymail.co.uk/new…..uffed.html

    1. I wonder how she lasted 19 years. She seems like far too good a person to be in that profession.

      1. Being that they mention the race of the kid, it makes me wonder if she got her jollies by beating up white kids. And only objected when a black kid was mistreated.

        1. Congrats on winning today’s cynicism award. Well, at least I don’t think that one is going to be topped today.

    2. The union worked hard in her defense, didn’t it?

    3. We found the one good cop… Now she’s off the force.

  11. Strict liability is a good marker for the progressive state mindset: personal individual responsibility is not important and must give way to technocratic management of the disbursement of the social costs of risks.

    1. How is the legal job market these days (you are a 2L, right?)? We are still breaking in our new associates over here and the general feeling is that things are better, but what does it look like on the inside?

      1. Better, but that’s kind of like saying the midget has grown an inch or two. I’ve got a fallback lined up from a summer internship so I’m not too worried. It’s not ideal, but it’ll pay the bills and be law.

        1. It’s amazing how many law students are willfully blind to the terrible prospects out there. I see so many of them who have nothing standing out on their resumes but are tra-la-la’ing through school, happy to have a $12/hr secretarial job at a firm that won’t hire them upon graduation.

          Sometimes it’s like walking down death row. You can see the realization wash over these students that they are going to be in trouble come graduation. It’s really sad to see.

  12. I am curious how this interacts with the big strict liability crime: statutory rape. The statutory rape section is not, IMO, abudantly clear on the mens rea piece:

    2907.02 Rape.

    (A)

    (1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

    * * *

    (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.

    Also, it should be noted that, of course, the State of Ohio exempted all of the traffic laws from this requirement. Wouldn’t want to lose that ticket revenue.

    Anywho, when is Kasich going to sign that damn red-light ban already?!

    1. Isn’t “whether or not” pretty clear?

    2. unless the criminal statute specifically says intent is irrelevant or strict liability is “plainly indicate(d)”.

      As I read the statute, it says actual knowledge of the age is not necessary only if the victim is under thirteen.

      For victims age 13 – 17, the new law would make recklessness the standard (as near as I can tell, given its internal contradictions). So “But she looks 18” is a defense if the jury agrees that it would not be reckless to believe she was 18.

      In the absence of such indications, “the offense is established only if a person acts recklessly.”

      The disconnect here is that the new statute talks about reckless acts, and the statutory rape statute talks about knowledge of age. Basically, since you are deemed to know she was under 13, any sex would be reckless. But for older minors, the new statute may change things a little.

    1. Are the Twitchy commenters always that humorless?

      1. When they’re not being racist.

        1. Too bad, because the site itself seems to be pretty good for calling people out.

    2. I can’t tell if the comments section is filled with liberals that don’t know how ironic they are, or conservatives who really have no sense of humor. I don’t think it’s both because they all seem to know each other and agree on everything.

      1. Both sides are scared shitless of him. Neo-cons fear him because he actually stands for what their base wants(smaller government) and progs because he puts them to shame on civil liberties and he can give an articulate defense of the free market.

  13. “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)”.”

    I hope this means that fewer people will be prosecuted who shouldn’t be, but this stuff should already be covered under the principle of mens rea.

    That’s basically the definition of mens rea.

    Incidentally, one would expect natural laws to keep reasserting themselves when governments ignore them, and mens rea is probably a pretty good example of that principle in action. How many times have various governments tried to get rid of mens rea since the Roman Republic? …and here’s mens rea reasserting itself in Ohio again thousands of years later.

    And mens rea is, in my opinion, the fundamental foundation of libertarian criminal justice. When a jury considers mens rea, what’s really happening is that a jury of your peers (not the government) hears the facts and decides whether the accused willingly forfeited some of his rights and liberties–when he willingly and knowingly violated someone else’s rights.

    I don’t see how there can be a libertarian criminal justice system without mens rea.

    1. Most people (even on the far left) agree that mens rea should be a part of all but a few outlying crimes.

      One thing I see here a lot is a fundamental misunderstanding of what mens rea is. Most lay people think of it as being aware that you are breaking the law, when it is really negligently / recklessly / knowingly / willingly doing the forbidden action. It’s a more subtle difference than people think and its easy to get confused.

      Also, to be clear, it isn’t like Ohio is introducing mens rea for the first time in its history. It’s just modernising itself by further abandoning the criminal portion of the common law, which is probably a good thing overall.

      1. “Most lay people think of it as being aware that you are breaking the law, when it is really negligently / recklessly / knowingly / willingly doing the forbidden action.”

        Yeah, I described the libertarian version of it as knowingly and willfully violating someone else’s rights.

        Hell, even in cases of negligence, you probably need to show something, to the jury’s satisfaction, suggesting either that the defendant knowingly and willfully neglected to do or know about something.

        “It isn’t like Ohio is introducing mens rea for the first time in its history.”

        Yeah, mens rea just keeps reasserting itself when it starts to become neglected or ignored–just like a natural law should.

        Taking God out of it, if the law is one big evolutionary adaptation, it should evolve in harmony with natural laws. When evolution brings about changes that aren’t in harmony with the natural world, it’s maladaptive, and that change doesn’t survive and flourish.

        I’m a big fan of fallibilism and the idea that the things that are mostly likely to be true are the things that have survived the most scrutiny. That’s basically what evolution is–things surviving massive scrutiny.

        What I was trying to say is that I think mens rea is actually more like the scrutiny–rather than something that survives scrutiny. In that evolution and adaptation analogy, it’s more like a natural law than it is like a statute in the state of Ohio.

  14. …Ohio’s new law will force state senators and representatives to actually think…

    Good luck with that.

  15. Ohio’s new law will force state senators and representatives to actually think

    “I think you’re a criminal, therefore you are.”

  16. They had to do this to balance out their fucking ‘Ohio Patriot Act’ disgrace from years back, the fucking pissheaded arm-draggers..

  17. Okay, it’s a step in the right direction.

    Better would be to mandate that no more laws can be passed without a 110% corresponding reduction in the existing code. So you want to add 1000 words to the “law”? Get rid of 1100 words in outdated laws.

    Continue until the code is 50% of its current size.

  18. “…and that she had a guilty mind, or mens rea.””

    Guess the movie “Men’s rear? How did we get men’s rear? We both use condoms!”

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