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Criminal intent should be explicit in laws

On Behalf of | Dec 11, 2015 | Criminal Defense |


One element of most criminal laws that makes them different from other legal situations is that a prosecutor needs to prove the element of intent. With a breach of a contract, all you have to prove is that there was an offer, acceptance, a breach of the agreement and damages. You don’t have to prove someone “intended” to breach the contract, merely that they did.


This is unlike a criminal charge, such as first-degree murder, where the State must prove you intended to kill someone. This intent requirement is not present in all statutes or regulations that impose criminal liability. There are thousands of federal laws and hundreds of laws in Michigan that do not contain an element of criminal intent.


This has fueled the trend of “overcriminalization,” where laws are enacted that are, in essence, “strict liability.” All a prosecutor needs to show with this type of law is that an event occurred or that you possessed some item.

It does not matter why you had an item or why something happened. This makes prosecution easier, but also facilitates prosecutorial overreach, where prosecutors charge numerous crimes in a coercive piling-on, that can force the accused to accept a lesser charge in a plea agreement to avoid the risk of a potentially long sentence at trial.

A simple solution to this issue would be for the Michigan Legislature to enact a default “criminal intent” provision for all statutes and regulations that lacked an explicit requirement.

This would not weaken any criminal sanction, but would protect the overall rule of law by requiring prosecutors truly have a genuine criminal case, and not merely a collection of facts. 


Source:, “Michigan should adopt ‘criminal intent’ rule,” Orrin Hatch and Michael Reitz, December 1, 2015


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