By Robert Alt

Thank you Chairman Eklund, Vice-Chairman Seitz, Ranking Member Kearney, and members of the Criminal Justice Committee for providing me this opportunity to discuss Senate Bill 361. My name is Robert Alt, and I am the President and CEO of The Buckeye Institute for Public Policy Solutions. Founded in 1989, The Buckeye Institute is an independent research and educational institution—a think tank—whose mission is to advance free-market public policy. The Buckeye Institute is a non-partisan, non-profit, and tax-exempt organization, as defined by section 501(c)(3) of the Internal Revenue code.

Prior to joining The Buckeye Institute in 2012 (and of potential relevance to this hearing), I taught Criminal Law at Case Western Reserve University School of Law, and served as a Director in the Center for Legal & Judicial Studies at The Heritage Foundation. At Heritage, I managed the project on over criminalization, which explored the weakening of traditional criminal law protections and the effect of the diminution of such protections.

Traditionally, to be convicted of a criminal offense, a prosecutor must prove beyond a reasonable doubt that the accused committed a guilty act, or actus reus, and that she had a guilty mind, or mens rea. I say “traditionally” because of a disturbing trend in which laws are passed without any mens rea requirement, or with unclear or inadequate mens rea requirements that do not apply to all the elements of the offense. The effect of these missing or inadequate mens rea requirements is to create traps for the unwary, in which citizens risk becoming criminals by accident or through mere inadvertence.

A study co-authored by The Heritage Foundation and the National Association of Criminal Defense Lawyers highlights the problem of laws passed with inadequate mens rea requirements. The study found that of the 446 non-violent criminal offenses introduced in the 109th Congress, more than half (57%) lacked an adequate mens rea requirement. Of those offenses that became law, the statistics were even more disturbing: 64% contained inadequate mens rea requirements. See Brian W. Walsh and Tiffany M. Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, ix (The Heritage Foundation and National Association of Criminal Defense Lawyers, 2010).

One solution to the problem of laws that are enacted either entirely missing mens rea requirements or laws that are passed with mens rea requirements for one part or element of an offense but that are unclear as to other parts or elements of an offense is to enact a default mens rea requirement. Ohio has such a law in R.C. 2901.21(B), which creates a default culpable mental state, or mens rea, where the statute lacks one:

When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense. R.C. 2901.21(B) (emphasis added).

Unfortunately, recent judicial interpretation has limited the effect of Ohio’s default rule to cases where the mens rea term is entirely lacking in the “section” of the law containing the offense. See Ohio v. Johnson, 128 Ohio St.3d 107, 113 (2010) (“R.C. 2901.21(B) was designed to apply only when there is a complete absence of culpability in the section defining the offense.” (emphasis in original).

Instead of a default rule that supplies the mens rea term where it is missing from elements of an offense, Ohio courts have interpreted R.C. 2901.21(B) as creating a default rule such that if the legislature assigns a mens rea requirement as to one element of the offense but is silent as to all others, the silence will be treated as requiring NO culpable mental state for those other elements of the offense. See Johnson, 128 Ohio St.3d at 114 (stating that for offenses “in which the General Assembly has included a mens rea for one element but not for the other elements in the section defining the offense[ ] . . . if the General Assembly intends for the additional elements to carry their own mens rea, it must say so. Otherwise, no culpable mental state need be proved for those elements.”) (emphasis in original).

This reading places more weight on legislative silence than it can bear.

To remedy this problem, SB 361 (with proposed amendments) clarifies that the default mens rea term in R.C. 2901.21 applies to any element to which mens rea may fairly be applied.

The proposal thereby prevents omissions that may be caused by drafting errors or inadvertence from being interpreted as stripping away traditional legal protections for the accused. At the same time, SB 361 does not prevent the legislature from passing laws with mens rea requirements below the default standard of recklessness—it merely requires the legislature to plainly indicate its intention to do so.

The default rule in SB 361 seeks to assure that the traditional requirement of a culpable mind is present in each material element of an offense, except where the General Assembly plainly indicates that it wishes to dispense with the requirement. In so doing, the language reduces the risk that Ohioans who are seeking to follow the rules may nonetheless run afoul of the criminal law without having a guilty mind. Thank you for allowing me the opportunity to testify today. I look forward to answering any questions that you may have.