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On a recent episode of Hi-Phi Nation, host Barry Lam examined the rich tapestry of federal crimes—and why you don’t always need to display criminal intent to commit one. In this excerpt, Lam speaks with Mike Chase, an author and criminal defense lawyer who’s trying to catalog the entire federal criminal code, and Benjamin Levin, a law professor at the University of Colorado Boulder. This transcript has been condensed and edited for clarity.
Mike Chase: It’s a federal crime to make an unreasonable gesture to a passing horse in a national park. That’s all the law says. And so, does the horse have to find them unreasonable? What kind of gestures does a horse find unreasonable?
Barry Lam: You go through some gestures that might be unreasonable towards a horse. Can you describe some of these gestures?
Chase: Well, there’s the classic, the middle finger. But you want to have a strong middle finger.
Lam: Like, two middle fingers may be the double crime?
Chase: I think that that’s clearly gonna be evidence of intent, and so it makes the prosecutor’s case a heck of a lot easier.
Lam: I think it’s also a little bit controversial whether the middle finger with the other fingers bent or curved down is worse.
Chase: Yeah. A tight fist with the middle finger versus a little bit of bend. But that’s where you can add a little bit of personal flair to each gesture. I go into the moon—
Lam: Like a little bit of crack?
Chase: No, all crack, the whole crack, you don’t want a little bit of crack. A little bit of crack could totally be—you’re gonna get acquitted.
Lam: Not quite offensive enough. Could’ve been an accident.
Chase: Right. Crack all the way down to the bottom and you’re definitely gonna get arrested. And I personally like the bras d’honneur, the arm of honor, I believe it’s called. It’s where you slap your hand, palm down, onto your bicep and you hook your other arm in an L-shape upwards and it sort of tells everybody, “Hey, up yours!”
Lam: There’s also ethnic ones too? Like if the horse might be Italian or something.
Chase: Sure, the chin flick. It’s sort of like, take the back of your fingers with your hand and you fold it under your chin and you just kind of aggressively move it outward from underneath your chin.
Lam: Unfortunately, the kind of crimes Mike Chase wants to teach you about aren’t the ones that’ll pay off. If anything, they might actually cost you. But if you wanted a career breaking as many criminal laws as possible without hurting anyone, you should definitely get his book.
Chase: If you sell pork from a pig carcass that has a pronounced sexual odor, that’s a crime. But if it’s less than pronounced, it’s OK. You can sell it for certain purposes. It can be comminuted—you know, chopped up. It can be put into certain kinds of pork products. And so it leaves some questions: When is a sexual odor pronounced, and when is it less than pronounced? What is a sexual odor? And it’s not defined in the regulation.
Lam: There’s a lot of margarine-based crimes?
Chase: Margarine is a great example because it shows how we ended up with a lot of the statutory federal crimes, which is that they’re the product of lobbying efforts. Butter was king, and then margarine was the new kid on the block. The dairy lobby was furious, and so they went to Congress and they said we need to ban it. If you are a restaurateur and you’re serving individual pats of margarine, they have to be triangular in shape. And you say that’s silly and inane. But there’s a guy, Joseph Trewasky here in Hartford, Connecticut, he got charged for it twice and got hauled out of his restaurant for serving square pats of margarine.
Lam: Where is clogging a toilet a federal crime?
Chase: National forests. Any national forest. They are, I guess, federal toilets on national forest land, and it’s a federal crime to put any substance in a toilet that could interfere with its use, clog it.
Lam: The term is substance.
Chase: Yeah, substance. And it wasn’t always substance. There was a time when they said rags, cans, objects, things like that. The purpose there clearly was, are you putting an object in with the intent to clog a toilet? That’s what we would think would make sense. But there have been revisions to the rule, and in fact additions to the rule, that now make it clear that any substance put in a toilet to interfere with its use, without regard for intent, that becomes a federal crime. And so it’s pretty vague. Even an accidental toilet clogging is totally permissible as a federal crime.
Lam: Mike Chase has been trying to organize and catalog the federal criminal code for six years now. It’s something no lawmaker, nonprofit, or government agency has been able to do, and if I can be frank, Mike probably won’t succeed in doing this in his lifetime. It’s like taking a census of the New York roach population. There’s a list of crimes that arise the way we would expect: Some one or group lobbies the federal government to say that such and such should be a crime, Congress passes a law, it gets signed, and it’s a statutory criminal law. But then there are criminal laws that arise from regulatory agencies. The FDA wants to protect us from sexually smelly pork, so they notify pork producers of the new rule. At the same time, Congress will pass this other law that says that regulations coming out of the FDA shall also be criminal laws. As a result, then, you get hundreds of thousands of regulations that are automatically criminalized, subjecting its violators to arrest, prosecution, or jail time. It’s part of a distinctive American phenomenon called “governing through crime.”
Benjamin Levin: “Governing through crime” is a phrase from Jonathan Simon, a criminologist law professor at Berkeley. And the idea of governing through crime is that the way the government responds, the way legislators respond to each new social problem—each time we have a terrible thing that happens in the world and someone says we need to do something about this—the way of doing something about this is passing a new criminal statute.
Lam: According to Ben Levin, governing through crime is not a left-right issue, not a Democrat-Republican issue. It’s more a governing by stick versus by carrot issue. Every political party, every ideological orientation, seems to have a preferred set of bad guys they want governed by sticks.
One particularly powerful tool in governing through crime is to formulate a law that makes it a crime to do something rather than purposefully do something. That’s an important difference. One makes the act illegal in all situations. The other only makes illegal the act done with a certain motive. Most of these federal crimes say nothing about motive. They don’t say anything about knowledge either.
Chase: For the most part, many of these have zero mens rea requirement.
Lam: And what does that mean specifically?
Chase: The government does not have to prove that you acted with any ill will or criminally culpable mindset. They just have to prove that the act was done and that you’re the one that did it. That’s it. Even if it was an accident. And that’s why that’s a problem: If there’s no mens rea requirement, accidents are chargeable.
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