Testimony by James Copland to the Ohio State Senate

Chairman Butler, Vice Chairwoman Pelanda, Ranking Member Stinziano, and members of the House Judiciary Committee, I would like to thank you for opportunity to speak on Senate Bill No. 361, sponsored by Senator Seitz, which involves an issue that I and my colleagues at the Manhattan Institute's Center for Legal Policy have devoted significant attention—namely, criminal intent or mens rea standards.

Personal Statement

Since 2003, I have directed the Center for Legal Policy at the Manhattan Institute for Policy Research, where I also serve as a senior fellow. The Center for Legal Policy seeks to develop and communicate thoughtful ideas on how to improve the civil and criminal justice system.

I have authored numerous studies on how civil and criminal law affects businesses, and I have previously testified before Congress and other lawmaking bodies on litigation, legal enforcement, and capital markets. Before joining the Manhattan Institute, I served as a consultant for McKinsey and Company in its New York office and clerked on the U.S. Court of Appeals for the Second Circuit. I studied economics and political economy at the University of North Carolina and the London School of Economics, and I have JD and MBA degrees from Yale.

Many of the views expressed herein are drawn from my prior research and those of my colleagues on this topic, including a 2009 Manhattan Institute report by my former colleague Marie Gryphon (Newhouse), It's a Crime?: Flaws in Federal Statutes That Punish Standard Business Practice; a chapter on New York criminal law I wrote for a 2010 book edited by Brian Walsh and Paul Rosenzweig, One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty; a 2014 study on criminal law in North Carolina, which I co-authored with my colleague Isaac Gorodetski; and a 2014 on criminal law in Michigan I co-authored with Gorodetski and Michael Reitz of the Mackinac Center. Each of these reports is available on the Manhattan Institute webpage. My statements today may include verbatim language from these earlier writings for which I served as author or co-author.

I want to emphasize, however, that my comments today reflect my own views and do not necessarily reflect the views of any of my colleagues or the Manhattan Institute for Policy Research as an institution.

General Background

In recent years, there has emerged a "wide consensus" among scholars, Congress, and judges that the trend toward "overcriminalization" the explosive growth of criminal law is problematic. Although most attention placed on overcriminalization to date has focused on federal crimes, most criminal prosecutions occur at the state level. Some scholars have argued that contrary to the federal trend toward expanding the criminal law, states on balance may be "moving towards less criminalization rather than more."

To study the extent to which states have followed the federal trend toward overcriminalization, the Manhattan Institute has begun to look at the evolution of some states' criminal laws in some detail. Initially, our efforts were exploratory and focused on four states with significantly large economies and at least anecdotal evidence of problems: New York, Ohio, Illinois, and North Carolina. Initial events in these states informed a May 2014 analysis I co-authored with my deputy director Isaac Gorodetski looking at the subject in North Carolina, and a second co-authored with Gorodetski and scholars at the Mackinac Center looking at Michigan.

Ohio Background

On June 4, 2013, we held an event in Columbus on this topic, Overcriminalizing the Buckeye State? Criminal-law Trends in Ohio and the Threat to Liberty and Commerce, which we organized with other national groups as well as local organizations, including the Buckeye Institute and the 1851 Center for Constitutional Law. Among those speaking at this event were:

• Ohio State Supreme Court Associate Justice Paul E. Pfeifer
• Ohio State Senate Majority Whip Larry Obhof
• Buckeye Institute President Robert Alt
• 1851 Center for Constitutional Law Executive Director Maurice A. Thompson
• Heritage Foundation Senior Legal Research Fellow Paul Larkin
• Jones Day partner Chad Readler

This event helped to inform the need for greater focus on these issues in Ohio. Event panelist Readler followed up with an opinion piece in the Cleveland Plain Dealer and my deputy director Isaac Gorodetski co-authored a piece with Texas Public Policy Foundation's Marc Levin in the Cincinnati Enquirer.

Analysis

At the heart of the Anglo-American criminal-justice system is the principle that an individual charged with a crime should be provided with fair and adequate notice of the conduct deemed criminal. A corollary principle, that ignorance of the law is not a legitimate excuse, traces to a time when virtually all criminal laws were tied to the "moral code"—including inherently evil crimes like murder, assault, or robbery—for which the risk of being unknowingly ensnared by the criminal law was exceedingly low. In addition, as a general rule, innocent individuals were historically protected by intent requirements: traditional common law required that a crime involve not only a prohibited act but also the intent to commit that criminal act (actus rea and mens rea, respectively). In short, the requirement that a criminal act be knowingly committed, not accidental, prevents the innocent from being unjustly targeted by criminal law.

As Gorodetski and Levin have noted:

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.

Indeed, to a significant extent, the Ohio courts have inverted the state's statutory mens rea default:

"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."

Thus, Gorodetski and Levin called for Ohio to enact a new default mens rea bill 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.

Application

Senate Bill 361, authored by Senator Seitz with significant input from the defense and prosecution bars in Ohio, as well as various in- and out-of-state legal experts, takes a modest but salutary step toward clarifying Ohio law. In its most critical part, the bill:

• Prospectively requires that new legislation that creates a criminal offense specify a state of mental culpability to be enforceable;
• For existing crimes, clarifies that the legislature's creation of strict liability in one division of the section of the code does not imply strict liability in other divisions of the sections for which the mental state is unspecified; and
• For existing crimes in which the legislature's intent as to mental culpability is unclear, for which a mental culpability requirement may fairly be inferred, there is at minimum a required finding of recklessness as to mental state.

Overall, this bill would not fully revivify the mens rea default in Ohio: certain offenses that have been created in the past without clarifying the legislature�s intent will need only a showing of recklessness to prosecute. Given the historical lack of attention to mental culpability in creating the volume of potential criminal offenses in Ohio, however, the proposed bill strikes a careful balance between not imposing undue burdens on prosecutors for crimes already on the books and protecting defendants whose conduct is unintentional without being reckless.

I am happy to take further questions.