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The Cincinnati Enquirer


Ohio Legislature On Notice

February 04, 2014

By Isaac Gorodetski

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.

Countless other Ohio laws are similarly silent as to whether criminal intent is required for conviction, even though they too criminalize activities that, because they don’t directly harm others, the ordinary person cannot be assumed to know are illegal. Under the traditional common law, a person charged with a crime had to be provided with fair and adequate notice of the conduct that is deemed criminal. Such notice is self-evident for morally reprehensible acts like murder, assault or robbery, but the old rules ensured the innocent would not be ensnared by the criminal law by forcing the state to prove defendants acted with intent – which lawyers call by the Latin term mens rea. This is in essence a requirement that a criminal act be knowing, not accidental.

Modern written criminal codes, however, tend to punish conduct that is not inherently evil but merely proscribed as part of the regulatory apparatus. Moreover, as legislators have drafted more and more criminal laws to respond to various disturbing headlines – a trend dubbed overcriminalization – they have often omitted mens rea requirements. As such, the notice principle has begun to erode, and the government has increasingly gained the power to punish people criminally even for unknowing regulatory infractions.

The Ohio criminal code, unlike most in the nation, takes seriously the notion that a person should only be guilty of a crime when they intentionally commit what they should reasonably know is an unlawful act. Unfortunately, a growing number of vague criminal laws in the Buckeye State are increasingly being interpreted by the courts to lack intent requirements, eroding the notice principle that Ohio law on its face explicitly seeks to preserve.

According to a study by law professor John Baker, Ohio courts began muddling the state’s default mens rea requirement with a string of cases interpreting statutes that proscribed the sale of alcohol to a minor, which the courts deemed strict liability crimes despite an absence of clear legislative intent. Subsequently, the courts began generally erring on the side of strict liability when legislative intent was in question.

As recently as 2010, the Ohio Supreme Court ruled that if one element or clause of a criminal statute includes a mens rea requirement, the absence of a mens rea requirement in another section of the law implies that the Legislature wanted strict liability – in essence turning Ohio’s statutory presumption that crimes require intent on its head.

Only the Ohio Legislature can act to clarify to the courts that it means what it says: If the state is going to put someone in prison for a crime without intent, it should only happen when the Legislature, rather than the courts, says so. By enacting a new default mens rea law, the Legislature can helpfully orient scarce law enforcement resources to combatting real criminal activity and ensure that the state’s awesome power to deprive an individual of his liberty only occurs with fair notice. Without this policy change, Ohio’s citizens run the risk of being branded as criminals and even locked up for accidental infractions.

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