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. On Wednesday, Ohio lawmakers battled back against this alarming trend—dubbed “overcriminalization”—by unanimously passing an original piece of legislation to protect its innocent residents and small businesses from unknowing and accidental violations of criminal offenses. Last Friday, the bill was signed by the governor. Ohio’s SB 361 will provide a template that other states should embrace to safeguard the liberties and livelihoods of all Americans.
One such American is Lisa Snyder, a resident of Ohio’s neighbor to the north, Michigan. In 2009, Snyder received a letter from the state’s Department of Human Services alleging she was guilty of a misdemeanor crime for operating an illegal day care while assisting her neighbor’s children board the school bus in front of her house each morning—free of charge. Or consider North Carolina’s Steve Pruner, who spent 45 days in the custody of the county sheriff for runnning afoul of regulatory requirements for operating a hot dog cart without the proper permit. Numerous local ordinances in Illinois similarly threaten small businesses by creating felonies for braiding hair, applying nail polish, or delivering letters by bicycle in Chicago’s Loop without a license. In each of these examples, law-abiding individuals are being ensnared by a criminal system created by well-intentioned lawmakers who criminalize normal behaviors without requiring that the criminal act be knowing, not accidental.
Ohio’s Senate Bill 361 takes direct aim at this dangerous tendency by requiring legislators to explicitly specify the state of mind required to convict an offender of a newly created crime. That way, individuals and small businesses—who, unlike large corporations, do not have armies of lawyers at their disposal—cannot be rendered criminals for unknowing violations of sweeping laws and regulations, unless the legislature expressly provides that a crime should apply in the absence of intent. For crimes already on the books, the new legislation protects individuals who had no intent to do harm or knowledge of the illegality of their conduct by requiring the state to prove that the defendant acted recklessly, unless the text of the criminal statute specifies otherwise.
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. 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. It would be wise for lawmakers in other states across the country to follow Ohio’s trailblazing example.
James R. Copland and Isaac Gorodetski are director and deputy director, respectively, of the Manhattan Institute’s Center for Legal Policy.