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Conduct, not intention

| Oct 31, 2015 | Criminal Defense |

 

One of the great challenges with criminal law is determining a balance. Too little law and regulation and there is a fear of anarchy. But too much law can become stifling and oppressive. North Korea probably has very little street crime, but who would choose to live there?

In Michigan, as with much of the United States, the trend in recent years have been to attempt to legislate a criminal solution to every unfortunate act. The criminal laws of the U.S. are rather robust, and many situations are already covered by multiple statutes.

 

But when a child is kidnapped and disappears forever from a rural road, the shock and fear is such that people demand “action” and Congress and the Michigan legislature both wish to be seen as “tough” on such crimes.

While assault, kidnapping or child endangerment charges could follow such a case, the marketing aspect of politicians tends to kick in and demand that they demonstrate that they have a branded solution for this particular crime. Hence, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, and the state law equivalents.

But ever more specific laws tend not to deter most criminal activity. Murder has been prohibited since the time of Cain and Able, but such acts still occur on a daily basis, in spite of millenniums of societal prohibition.

An additional problem is the lack of intent as a necessary element in many crimes. When conduct, such as the possession of a Bald Eagle feather or a small amount of marijuana is all that is necessary for a prosecutor to show, those with malevolent intent as well as those inadvertently swept up in a raid are equally guilty.

Overcriminalization is the result. This leads to a diminished respect for the law as people lose the ability to identify what conduct makes a crime, and places strains on the system as more people are dealt with by being locked up. 

Source: mackinac.org, “Federal Government Mirrors Michigan Overcriminalization Efforts,” Geneva Ruppert, October 9, 2015