Michael Van Beek, Mackinac Center for Public Policy
Last week, the Mackinac Center published a study about the problem of letting administrative agencies define criminal behavior. This happens when the state Legislature empowers a state department to write legally binding rules to execute a statute and then declares that anyone violating the statute or these rules is guilty of a crime. In effect, then, unelected bureaucrats in these agencies can determine what constitutes criminal behavior.
This is problematic for several reasons discussed in the report, but here is just one of them: meticulous and overly precise rules. These are difficult to comply with, even for the well-meaning citizen trying to abide by the law. These rules are also virtually impossible for the state to thoroughly enforce because it would take too much oversight to ensure compliance. The study highlighted several such rules, including ones dictating the details of the title page used to apply for a license to build a mobile home park and others defining the allowable surface area of a sign used to advertise certain types of alcohol.
Charter boat companies need to follow extremely detailed rules, too. Part 445 of Michigan’s Natural Resources and Environmental Protection Act of 1994 empowers a state department to write rules about safety standards for chartered boats. Anyone who violates the statute or the rules created under it has committed a misdemeanor. Roughly 600 charter boat captains are members of the Michigan Charter Boat Association and there were 18,000 chartered excursions in 2017.
The department’s rules contain more than 40 sections and specify requirements about boat engines and electrical systems, licensing requirements for boat pilots and safety equipment. For instance, vessels carrying passengers on one of Michigan’s Great Lakes need to affix retroreflective material that measures precisely 200 square centimeters to both the inside and the outside of a flotation device. Attaching more may mean you’ve committed a misdemeanor.
Storing these flotation devices is also a risky business, because the rules are very specific on how this must be done. If stored in a container, the words “Life Preservers” must be printed on the outside in lettering at least one inch tall in a color that contrasts with the color of the container. The container must indicate how many flotation devices it contains and their size. And no container may contain a mix of different sizes, so boat owners face misdemeanor charges if they accidentally put a “large” life jacket in a container meant for “medium” ones.
There are other overly precise rules. For instance, boat owners must have a working flashlight onboard, but not just any flashlight — it has to be powered by “D-cells or larger-size batteries.” Bring any other type of flashlight, no matter how reliable, functional and bright, and you’re subject to a misdemeanor charge.
The intent of these rules is admirable: They exist to try to ensure that people who hire charter boats face fewer risks and are reasonably prepared in case of an emergency. But should violating them in minor ways — labeling storage containers with the wrong color or carrying the wrong flashlight — result in a criminal charge? Even well-intentioned charter boat owners could accidentally run afoul of these rules.
Policymakers need to take a close look at rules that are overly precise and meticulous and carry criminal penalties. Citizens shouldn’t be in fear of criminal charges if they fail to meet the fastidious demands of unelected bureaucrats.
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Michael Van Beek is director of research for the Mackinac Center for Public Policy.
