Criminal Minds

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S1: This ad free podcast is part of your Slate plus membership from Slate.

S2: If you want to start a career in crime, the best person to call would be my chase.

S3: So my name is Mike Chase. I’m a criminal defense lawyer and the operator of the crime at a Twitter account. So I wrote a book called How to Become a Federal Criminal An Illustrated Handbook for the Aspiring Offender. 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?


S4: You go through some gestures that might be unreasonable towards a horse. Can you describe some of these gestures? Well, there’s the classic, the middle finger. But you want to have a strong middle finger to middle fingers, maybe the double curve.

S5: I think that that’s clearly going to be evidence of intent. Right. And so it makes the prosecutor’s case a heck of a lot easier.

S4: I think it’s also a little bit controversial whether the middle finger with the other fingers bent over or to, like, curve down is worse.

S3: Yeah, a tight fist with the middle finger versus a little bit of bend. I know. I mean, but that that’s where you can add a little bit of personal flair. Right. To each each gesture, I go into the moon. Yeah. Like a little bit of crack. Might just know all crack. The whole crack. Oh, you do want a little bit of crack. A little bit of crack.


S5: Could totally be a you’re going to get acquitted. You’re going to get acquitted. But not a quite offensive enough. Yeah. No accident. Right. Crack all the way down to the bottom and you’re definitely going to get arrested.

S3: And then I personally like the Broz Don or the arm of honor. I believe it’s called it’s you sort of like 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 up yours like, hey, up yours. That’s right.

S4: Yeah. There’s also these like ethnic ones. Oh yeah. I can knock off the horse. Might be Italian or something. Sure. The chin flick.


S5: She’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.

S6: Unfortunately, the kind of crimes my chief 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.

S3: 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 just say 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, yeah, it leaves some question, 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.


S4: There’s a lot of margarine based crimes.

S3: Margarine is a great example because it it shows how we ended up with a lot of the statutory federal crimes, which is that they’re the product of lobbying efforts. So butter was king and then margarine was the new kid on the block in the dairy lobby was furious. And so they went to Congress and they said, we need to ban it. If you are a restaurant tour and you’re serving individual parts of margarine, they have to be triangular in shape. And you say, oh, that’s silly and inane. But there’s a guy, Joseph Trotsky, here in Hartford, Connecticut. He got charged for it twice and got hauled out of his restaurant for serving square parts of margarine.


S2: Besides all the food based crimes, there are also postal service crimes. Apparently, it’s really serious. The dress and a postal uniform when you’re not a postal worker and there are a surprisingly large number of crimes having to do with the sanctity of our national parks, whereas clogging the toilet, a federal national forest.

S3: Yeah, any national forest. They are, I guess, federal toilets. Right. On National Forest land. And it’s a federal crime to put any substance in a toilet that could interfere with its use clog. The term is substance. Substance. 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? Right. That’s what we would think would make sense. But there’ve 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.


S7: From Slate.

S8: This is hyphenation philosophy in story form this season. Crime and Punishment recording from Vassar College. Here’s your host, Barry Lamb.

S9: Welcome to Hyphenation Season for lots of things are happening this season, so let me tell you about them upfront before we continue. Each episode of the series looks at a certain stage of the criminal justice system, takes a practice that happens in that stage and uncovers its underlying assumptions, questioning them, see if they contribute to justice or injustice. And today, it’s about the first stage legislation when a bunch of people we elect get together and try to formulate what’s a crime and who goes to jail. This is we’re gonna look at every stage policing, prosecution, sentencing, what it’s like in jails and what happens after you get to leave. There’s going to be an exclusive bonus episode following every episode this season with long form discussions of the issues. Feature me and a special guest for the first four episodes. It’ll be Sara Lustbader, public defender and writer at the appeal.


S7: And if you like me, leave law school and then become a public defender. It all kind of breaks down the first bonus episode.

S9: We’ll be free, but all subsequent ones will be available with a slate plus membership. I’m also doing invite only Zoome events after every episode where I and a special guests will get to meet you. To find out how to get an invitation, go to high vibration dot org. Let’s get back to the episode. My chase has been trying to organize and catalog the federal criminal code for six years now. If something no lawmaker, non-profit 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 Roache population.

S2: There’s a list of crimes that arise the way we would expect someone or group lobbies the federal government, Congress passes a law, it gets signed, and it’s a statutory criminal law. But then there are all these 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 or the Department of the Interior or the U.S. Postal Service 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 phenomena called governing through crime, governing through crime is a phrase from Jonathan Simon.


S10: Criminologists and law professor at Berkeley.

S2: This is Benjamin Levin, law professor at the University of Colorado, Boulder.

S10: 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 kind of 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.

S2: According to Ben Levin, governing through crime is not a left right issue, not a Democrat Republican issue. It’s more of 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. The schools are pretty bad. Too many behavior problems. How about a few more cops, random locker searches and juvenile arrests? There’ve been a rash of hoodlums causing horses to buck their riders off. Let’s give park rangers the authority to arrest and charge them. 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. You can’t plead ignorance. For instance, if you decide to flush your stash of Vike it in down a national forest toilet and clog it up leading to your arrest. The toilet clogging law is a no intent, no knowledge required criminal law, which means that accidents are no excuse and ignorance is no excuse for the most part.


S3: Many of these have zero mens rea required.

S9: And what that what does that mean specifically?

S3: 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 is if there’s no mens rea or requirement. Accidents are chargeable.

S9: The technical legal term, mens rea a requirement is a fancy Latin term for something deeply important to morality and crime. You might think that morality is about doing bad things in crime, about the things that are so bad. We want the government to stop or punish them. But it’s not.

S11: For this thing we used to talk about in graduate school. Like everything else in philosophy, it’s either deeply insightful or completely obvious. It’s about how no one ever really dies because they get sick.

S9: They only die because they get sick and then don’t get better.

S11: And if you think about it, no one ever really dies because they get old, either they die because they get old and then don’t get younger again.

S9: Criminal and moral responsibility has this exact same flavor.

S11: You don’t get punished for doing a bad thing. You get punished for doing the bad thing and not having an excuse for it. That assumption is always in the background.

S6: When we think of holding someone responsible for wrongdoing and there’s a theory of moral responsibility that’s codified in the law. It says what it means to have an excuse completely depends on your state of mind in doing the crime.


S11: If you give a thirsty child some tap water and she dies from arsenic poisoning, that’s a bad thing. But whether you’re morally responsible for the death or how responsible you are completely depends on your mental state, not the act itself. Did you know there was arsenic in the water? Did you put it there specifically to kill the child or did you think it was a vitamin? Or maybe you knew it was arsenic but didn’t know it was poisonous? Which one of these deserves to be a crime and which ones are just unfortunate accidents? The person has to live with but doesn’t have to be punished for.

S6: This is the moral dimension of a mens rea requirement. It encodes the responsibility side of morality. You’re trying to figure out which state of mind is so objectionable, so inexcusable that it deserves a criminal penalty.

S1: I’m getting Yaphe I’m a professor of law, philosophy and psychology at Yale University.

S2: What are some of the mens rea of requirements, if you can give me some examples?

S1: Well, so one thing to note is that by default, every crime has mens rea requirements and every crime has multiple mens rea requirements considered burglary. So burglary is entering somebody else’s residence, often at night with the intent to commit a felony inside. So in order to make out the case against the defendant, the prosecution has to show that he actually entered somebody’s home. That’s just a fact about how his body moved. But then they would also need to show that he knew that it was somebody else’s home. So that’s a knowledge requirement.

S4: So if somebody was, like, mistakenly thought drunk and thought, oh, this is my house, I’m breaking in because I forgot my keys. That would be an excuse.


S1: Yes. So it would show that they didn’t have the mental state that was required for the crime, which includes knowledge that you’re breaking in factual knowledge is a requirement for a criminal mind.

S9: No knowledge, no responsibility, no knowledge.

S1: Isn’t the only fact about your mind that would need to be shown for burglary.

S2: You also have to show that the person intended to commit a felony inside intent is a requirement for some crimes, but intent also requires knowledge. What is the intent in breaking in was to do drugs inside and doing those drugs happens to be a felony in that state. But you didn’t know that this would be legal. Ignorance. It’s a good question whether legal ignorance gives you an excuse in this context. For every crime. What you need to know in order to be culpable is as complex as the crime. And that’s just knowledge and intent. There are two even weaker mens rea requirements that figure just as prominently in criminal law.

S10: So recklessness is awareness of risk that a certain result will occur as a result of his actions. So the risk must be substantial enough that the action represents a gross deviation from what a reasonable, law abiding person would do.

S2: An example of recklessness would be if the city warned you that there might be arsenic in the water. So don’t drink it. But you disregard the risk and gave the water to the child anyway. You didn’t know it would kill her. You didn’t intend it, but you took an unreasonable chance.

S1: There’s also negligence. So cases of negligence are ones where people are completely oblivious to some fact. But if they’d been thinking straight, if they’d been thinking reasonably, if they’d been caring enough about other people, they would’ve noticed. So, for instance, in lots of jurisdictions, the United States, rape has a means rather of negligence so that if. One person has sex with another and they think that person is consenting, but a reasonable person in their shoes would have known that, in fact, the person was not consenting. Then that would be an instance of negligence. So negligence, recklessness, knowledge, intent. Those are the four main categories of mens rea.


S4: Now, can you talk a little bit about why it is that we have these different kinds of requirements? It’s possible for us to have had a legal system where we said, oh, it’s only one kind or something like that. Yeah. What is it that’s important to us about having these different kinds of requirements?

S1: So I think it’s a fantastic question and it’s actually incredibly elusive to the right answer to it is. Notice you could ask the same question about ordinary morality. So, for instance, you walk outside one morning and your car’s missing and then you find out later that your neighbor had it and he says, oh, I thought you probably didn’t mind, depending on your relationship with your neighbor, that might or might not work. Right. You have a certain kind of close relationship with your neighbor. You might feel like, well, OK, but, you know, maybe next time you could, like, check. Right. But if you don’t even have that kind of relationship with your neighbor, is this just like your neighbor who once, five years ago you lent your car to him? You might say that’s just not good enough. What do you mean you thought I wouldn’t mind? So your neighbor in that situation, what he’s saying, the way you put it in legal terminology, is your neighbor saying, I was reckless. I didn’t know that you weren’t consenting. I thought there was a chance you’d consent. Cut. There was a chance you wouldn’t consent. Ordinary morality tells us that whether or not that’s a good excuse depends on the subtlety of a relationship between the two people involved. And it’s really hard to explain, like in a principled and rigorous way, what facts about that relationship make one kind of plea, an excuse or that same kind of plea wouldn’t be an excuse it with a more distant relationship, give the same kind of thing with menswear requirements, which is what we’re really talking about, are the relations among citizens and what we expect from each other and what we owe to each other. And without a systematic accounting of those different relations and how those work among citizens, it’s very hard to specify with any kind of precision why one kind of menswear requirement would be appropriate in one context and not in another. So why a negligence standard for non consent in rape? It has everything to do with sexual morality, with the way in which arousal affects psychology, with the magnitude of the harm involved in it. And that’s just one crime. Right.


S12: I think what is it for credit card fraud? What is it for criminal trespass?

S10: What is it for burglary? What is it for a murder?

S13: When it comes to the criminal mind, the job of a legislature is the same job as an ordinary person here trying to formulate what mindset you think deserves a criminal sanction. The legal system in commonsense treats the four mens rea of mental states as making up a kind of hierarchy of evil. Negligence is the least evil mindset worthy of blame for some crimes. It’s when you fail to know something.

S14: Society expects you to know recklessness. The second knowledge without intent is third and final. The intent is the most evil set. Mens rea, a high and every bad mindset. Below it is an excuse. Set it low and every mindset above it is worthy of punishment. Crimes without mens rea requirements bypass the hierarchy entirely. They allow for punishment without any criminal mind. That’s a problem. It’s important to know why human beings care so much about mindset in the first place. Why do we care so much about intent? Or the difference between intent and knowledge, knowledge and recklessness, recklessness and negligence? Gideon Yaphe has a theory.

S1: Often very subtle psychological differences, differences that are super hard to measure in the lab, conditions make huge differences intuitively to responsibility. A very good example of this, I think, is perception of risk versus knowledge.

S9: Indulge me for a second on a hypothetical example. Suppose there’s a guy trying to scare his neighbors into turning down the music that’s been blasting all night. He reaches into his safe, filled with loaded guns, takes one, goes in, waves it in his neighbor’s face. Horrible. Maybe even criminal.


S2: Now compare that to a guy who reaches into his safe but is safe, is full of fake Hollywood movie guns. Only one gun out of a dozen in is safe, is real. And he doesn’t remember loading that one in years.

S9: Now this guy goes and waves the Godet as they press face. That’s less bad, even if both guys do the exact same things with the exact same intent.

S1: So it’s very, very subtle difference might then makes this huge difference in responsibility.

S12: So why the person who knows he has a gun and moves forward in a certain instance really just cares a lot less about other people’s safety. But if he thinks there’s a chance that he doesn’t have a gun so that he might not, in fact, be actually risking whatever harms the person with others might suffer at the hands of his gun. He’s less bad. What’s less bad? What’s less bad is that he weighs the impact of his conduct on other people more heavily in guiding his conduct when he moves forward, only aware of risks than when he moves forward in the state of knowledge. Or similarly, somebody who intends to harm somebody else, as opposed to thinking as he runs a stop sign, I might harm somebody else, said he’s running that stop sign. Aiming to run the guy over. He takes the harm to somebody else as a positive reason in favor of his conduct, not as a reason to hold back these facts about how we grant reason giving weight. I would say to the effects of our conduct in other people. Those are what’s morally significant, I think. And those are what’s indicated by these subtle facts about our psychology. So it’s that fundamental idea about how we work with and transact with the effect of our conduct on other people. What kind of weight we give that in our deliberations about what to do. That is the fundamental issue that sits behind the choices of mens rea requirements, because that’s what we’re getting at. When we prove that the person intended harm.


S4: So is this. Is this a accurate way of putting it? So your view is that what’s important to us is the way a person values their own interests compared to the interests of other people. That’s really the thing that’s underlying all of these menswear requirements. Yeah, I think that that’s right.

S12: That is the fundamental thing.

S2: Menswear requirements are then policing the attitudes that we have toward other people. Just like criminal acts are supposed to be so contrary to the interest of other people that we need to prohibit them.

S15: Mens rea a requirements say that certain ways of thinking about other people are so beyond the pale that we need to prohibit them too. The flip side is that when you do not have these states of mind, you’re innocent, morally blameless. Even if the state can prove you did the crime, it’s why intending to steal but failing is a crime. But stealing without intending is not. These are the moral dimensions of mens rea of requirements. It’s how criminalization is supposed to work. There should be no crime without a criminal mind. But there’s another dimension to criminal states of mind, a political one, a menswear requirement. Tells us what the government needs to prove about a defendant’s state of mind before they can convict them for a crime.

S16: And for some kinds of crimes, the truly criminal mind might be pervasive, but hard to prove. So what do you do? Maybe you get rid of mens rea requirements.

S8: High five nation will return after these messages.

S9: Street crime can be scary. But white collar crime is far more costly. Take it from a prosecutor turned legislator who is trying to pass laws that criminalize more harmful White-Collar conduct.


S17: I’m State Senator Todd Kominski. I live in Long Beach, New York, and represent parts of NASA County. Prior to that, I was a prosecutor for 10 years.

S2: I did a little over six years in the Eastern District U.S. attorney’s office, mostly doing political corruption, but also other cases to consider the example of lead poisoning and water or cancer causing carcinogens in the air or soil or the financial crash that devastated the U.S. economy. Why isn’t anyone in jail for these things? The answer is mens rea.

S17: So in white collar cases in particular, it gets really hard because you have to prove bad faith used to prove someone knew what they were doing was wrong and did it anyway in any other case. You know, a crime happened. The question is, who did it? There’s a dead body. There’s a kilo of cocaine. There’s a weapon. But in a white collar case is the pivotal moment is. And then the money was transferred to the Morgan Stanley account. Boom. It’s like. All right. Is that a crime? So, you know, first you’ve got to prove there’s a crime. It’s really hard and you’ve got to prove what the person was doing was wrong and did it anyway. And most of the time, in these white collar case, these people have really good expert attorneys who kind of know their way around the courtroom, know the way around accounting documents. Have experts come in giving them opinions that what they’re doing is OK?

S2: Think about how much easier it is to manufacture reasonable doubt about mens rea. For a white collar crime than for a street crime. My client didn’t know about this obscure federal law, and even if he did look at all the lawyers and experts who themselves disagreed about whether his action was harmful and how could he possibly have known that it was.


S18: Now, compare that to arguing that your client didn’t know stabbing someone might lead to their death. White collar crime has this paradoxical effect on our moral psychology, if nothing to bad results from it, by cheating on your taxes. It doesn’t feel like a crime. So the mind that committed it doesn’t seem to harbor any ill will. On the other hand, the worse the effects of the crime, like plunging an entire country into a severe recession or poisoning 12000 children, the easier it is to plead ignorance and therefore blame lessness. I mean, who could have foreseen all of these bad consequences? It’s easier for white collar actions not to feel wrong because of their epistemic remoteness from their harmful consequences. So how do you fix that problem for a prosecutor? If you care about white collar crime, you get rid of mens rea or requirements.

S1: A lot of statutes defining criminal conduct were written with tons and tons of either ambiguity about their mens rea requirements or just no specification of the mens rea requirements at all. The law just might say it is a crime to cause another person to ingest poison. And then when you have the person who says, well, you know, I just gave my child a couple of Advil, I had no idea that that many Advil were toxic. Question is whether their failure to know that serves as any kind of excuse in the statute. Didn’t really say the statute, didn’t say anything about knowledge. And prosecutors like to win. And the fewer things they have to prove, the more likely they are to win. And police like to be able to arrest even without any kind of suspicion about anything about the mental states of the people whom they’re tracking. So both prosecutors and police have an incentive to interpret statutes that are either vague or unspecified on mens rea to interpret them in a way which goes to their side and against defendants.


S18: Very efficient way to govern through crime is to interpret any criminal statute with an unspecific mens rea requirement as a strict liability crime. These are crimes with no mens rea of requirements. The government doesn’t have to prove knowledge, intent, recklessness or negligence. It takes away the power of a defendant to claim that they have an innocent mindset that way. All of the power gets transferred to the government to use their discretion to deal with you. Maybe they’ll go easy on you. But that’s not because they’re forced to by law. It might sound scary, but it’s funny how quickly that goes away. When we start looking at the right kind of bad guys.

S19: My name’s John Guidry. I’m a criminal defense attorney here in Orlando, Florida. I’ve been defending criminal cases since 1993.

S2: We’ve been talking about federal regulatory crimes, but street crimes are not immune from lax menswear requirements. Florida has sort of a tasting menu of strict liability crimes.

S19: It’s a real strict liability when it comes to having sex with somebody that is underage. Statutory rape. It is not a defense in Florida that you did not know. This girl was 15 or 16 years old and you’re 25. That doesn’t matter. You should have known. That’s what they say.

S9: Possession of child pornography.

S19: Child porn case where they figured out that child porn was being downloaded in this home. Right. And they come in and they arrest the dad. As it turns out, was the 19 his 19 year running out and say, my dad didn’t do this. I did this. They said, hey, this is in your home. You must have done it. That guy was going to prison.


S9: Drug trafficking.

S19: The legislator decided that we don’t want the prosecutors to have to prove that somebody knew a drug was in their car. We’re just going to go ahead and say if the drugs were in your car and if they are illegal drugs, we’re going to send you to prison or whatever the punishment may be. You could help your buddy move, for example, and you don’t know what’s in his boxes and they’re in your trunk. You’re moving his drugs. Now you’ve got a felony and you’re going away even though you had no idea what was in those boxes.

S9: And finally, death by dealer.

S19: We’ve had a lot of overdose deaths. Right. I’ve represented plenty of clients that have dealt drugs and they are literally charged with the murder or attempted murder of the person that they gave the drugs to. Now, that’s where you’re getting the strict liability. The crime says we don’t care whether you intended to kill him or not. Your drugs killed this guy and you’re getting charged with murder.

S9: Every state can have hundreds or thousands of mens rea, ambiguous laws. And as we know from my chase, the federal government can have hundreds of thousands. And so in the interest of criminal justice reform, Republican legislators have come to the rescue. Gideon Yaphe.

S1: So what the Republican bill was trying to do, the mens rea a reform act 2018, was to impose a default mens rea requirement. So make it the case that a default rule was just in place in federal law, so that if the statute didn’t say, then on the Republican bill, prosecutors would have to prove knowledge under the standard.


S2: Both factual and legal ignorance could be excuses for violating federal criminal laws that did not have explicit mens rea of requirements might chase the notion that ignorance of the law was no excuse made sense back at the founding of the country when you could actually open a book and read everything that’s a crime and conform your conduct to it.

S3: Fine, when there are potentially half a million federal crimes on the books. Yeah. Ignorance of the law should definitely be an excuse.

S10: Ben Levin, there’s support for the menswear reform, generally speaking, from conservatives, from libertarians and folks on the political right, because a lot of these federal criminal laws are viewed as an extension maybe of government run amok. This is big government in its scariest form. Right. And these expansive criminal statutes are seen as a as a component of overregulation from a liberal perspective or from a progressive perspective or a left perspective. There’s support for mens rea reform, in large part because of concerns about mass incarceration, because of concerns about over criminalization. Too many people are being punished. We know that there are tremendous disparities based on race, based on class. And giving prosecutors too much power seems to be enhancing those dynamics. Those disparities.

S4: How do you become a partisan argument then?

S1: It became a partisan argument because it isn’t. Yoffie Democrats interpreted Republicans as being interested in this solely out of an interest in protecting corporations.

S20: Because many of the strict liability crimes that were prosecuted were ones that could only be committed by corporations, things like environmental harming.

S10: This is really a way of shielding people who commit white collar crime, who commit financial crime or economic crime from any kind of accountability and accountability through the criminal system.


S21: I’m very careful about putting more restraints on our prosecutors. State Senator Todd commenced. My argument is that we’re not arresting young people from disadvantaged neighborhoods. We’ve just been arresting our way out of issues. We’ve been stocking our jails full of people. And the answer to society’s problems is not incarcerating people. Many, most of whom are poor. I agree with that. But if you limit this to white collar cases, you’d be arresting white collar criminals. I want to make it easier to prosecute white collar case. They’re not held it on crimes. They’re not high sentences.

S4: Do you think that white collar criminals just have good attorneys and the laws are are formulated in their favor or. Yes. OK. You think. Yes, because the Republican and Libertarian talking point is that there are a bunch of people who don’t know what the laws are because there’s too many damn laws and you can’t hold people to knowing some obscure federal regulation about dumping or something like that. Like that’s their argument, because your view is that not people know that they’re doing wrong shit. They just have better lawyers to get away with.

S21: Yeah. Or that there’s not enough resources to law enforcement getting at that stuff. I mean, look at the example you gave. I have a law that would create a crime called criminal disposal. There is no law right now about dumping black large construction companies. And take Phil from their construction sites that are toxic. Go to poor neighborhoods and dump them in their parks. That’s crazy. No one could tell me they don’t know what they’re doing when they’re driving out in the middle of night and dumping stuff somewhere. That’s clearly a crime. I think we need a whole white collar reform move in Albany. It has gone nowhere. There’s no appetite for having more arrests.


S4: It seems like the momentum for criminal justice reform on the side of street crime is being used to also make white collar crime harder to prosecute. Yeah, do you agree with that? Yes. And it’s totally perverse.

S10: Ben Levin, Elizabeth Warren has been a vocal opponent of menswear reform. President Obama was a vocal opponent of menswear reform. They’re very concerned that menswear reform is going to make it harder for federal prosecutors to prosecute people committed white collar crime.

S20: To me, it’s completely unjust to be punishing people in the absence of proof of mens rea. Gideon Yaphe, completely unjust to punish people without giving them an opportunity to offer excuses on their behalf. And so any default role is a step towards justice because it’s going to require prosecutors to prove what to me is absolutely essential to the justification of punishment, which is something about responsibility, something about the mental state of the defendant. The bill that the Republicans were proposing, it was step in the right direction because it was a step against the kinds of highly manipulative practices that were being engaged in, both by prosecutors and police, to try to bypass an absolutely essential element to just punishment.

S2: So here we are with a choice. We have a strong feeling of injustice when someone is charged and convicted of a crime they never intended and never knew they were committing.

S22: At the same time, requiring the state to prove mens rea. Let’s a lot of people off the hook, people who are already rich and powerful and do some of the most wide ranging and serious harms in a society. What to do when we return. Blackstones ratio and mens rea are. Or whether it’s ever OK to build a law that convicts the innocent in order to ensnare the guilty.


S23: We’ll return to the rest of hyphenation after these messages.

S2: All right, Sara Lustbader, you’re my co-host for the first for Slate plus episodes this season and you’ve been listening to these issues. What do you think about the choice between the morality of mens rea of requirements and the need to prosecute white collar crime?

S7: This is where theory and practice diverge. So in theory, of course. I think it’s abhorrent to criminally try and convict anyone who didn’t intend to do anything wrong. I think it’s pretty hard to argue otherwise. On the other hand, progressives like Senator Elizabeth Warren have opposed menswear reform. And I think it’s a false choice. Right? I think that the idea of menswear reform across the board is a false choice, that the the bill that I think she was referring to was like basically tailored to make it easier for people to commit corporate crimes, like it was made it harder for the government to prosecute specifically corporate crimes. And we know that that if you want to talk about the intent of the peop the Republicans who are trying to push that they, I believe, were actually trying to block criminal sentencing reforms for like street crime unless Congress would agree to a mens rea amendment. So actually, they saw those two things as in conflict with one another. And so I think in practice, it’s a false choice to say if you want to rollback mass incarceration, you actually have to be kinder to corporate defendants. And I actually don’t think that’s true. There’s no reason that you can’t go through laws and say, I choose these laws to be tougher on. I think when it comes to corporate crimes, these crimes are more deterrable. So like literally incorporations, people ask their attorneys, what can I get away with? And the attorneys will say, if we do it this way, actually, it’ll be harder to prove intent. You know, people who are arrested for street crime generally don’t have their lawyer friend who they can ask, how can I show the least evidence of intent? So it will help me evade prosecution.


S9: There’s more long form discussion with me and Sara Lustbader and the Slate plus bonus segment this week. And she makes a good point. The whole purpose of governing through crime is that you’re trying to calibrate your criminal laws to fit the outcomes you prefer, the outcomes you think are just there’s this famous maxim attributed to Sir William Blackstone, famous English jurist of the 19th century.

S24: You’ve definitely heard of it. Better to let 10 guilty go free than convict one. It is a person. There’s also this other maxim. No one ever talks about. I call it the Converse Blackstone maxim, but don’t look it up. I just made up the name. It says better to convict one innocent person than let 11 guilty ones go free.

S11: The Blackstone maxim says, don’t make the standards of proof too low. The Converse Blackstone maxim says don’t make them too high.

S24: People take the Blackstone ratios to justify a kind of universal burden of proof in criminal law. Proof beyond a reasonable doubt for all crimes.

S11: No exceptions. But what if it does the opposite?

S24: What if Blackstones ratios get us in the habit of seeing criminal procedure as a numbers game where justice is a matter of the right ratio of guilty to innocent people behind bars and in society? The government seems to be using strict liability crimes as an end run around constitutionally protected burdens of proof with certain crimes. Don’t have the right Blackstone ratios.

S11: Let’s tweak mens rea to see if we can calibrate the right number of people to put in prison.

S25: I think the debate shouldn’t be about white collar versus street crime or progressive versus libertarian social policy. But rather about whether criminal procedure should ever be used as a governing device to get socially desirable Blackstone ratios.


S22: That’s how I put the issue to Gideon Yaphe.

S4: There’s a certain kind of numbers game, actuarial assessments of these menswear requirements. Arguments to the effect that from the Democratic side, something like more white collar criminals will go free under the bill. And some people could respond well. Well, also, other people who are unjustly incarcerated will also go free. Let’s just take a look at the numbers. And you generally don’t like that way of assessing the menswear requirements and tell me why that is.

S1: I think it orients the wrong way towards their moral significance. Let me give you an analogy. So you’re trying to decide whether or not to torture somebody and you make the following argument in favor of it. If I torture them, I’m going to stop three other acts of torture. Anybody who makes that kind of calculation doesn’t really understand the import of the rule. Don’t torture people. I think there’s something very similar going on with these mens rea of requirements, which is what you’re really measuring when you say more of these people will go free, more of those people will do it. What you’re trying to do is measure injustices relative to one another and count the injustices. So we’re gonna stop this many injustices by allowing that many injustices. Well, that’s fine, as long as the numbers are the right way. And that fails to recognize the kind of import of these principles, a principle of the form that says only punish somebody if he’s responsible. And saying, oh, well, I’m going to be able to I can kind of highlight this one time, punish somebody who’s not responsible or who I’m not confident is responsible. Why? Well, because when I do that, I managed to capture a lot of people in my net. Who are responsible. You might. But it exhibits the wrong kind of attitude towards the principal. And that’s the way I think of these mens rea requirements. I think they are fundamental in the same way as the rule. Don’t torture people as fundamental.


S2: Jaffe’s fundamental moral law here is that there’s no crime without a criminal mind and no just criminal law without a just mens rea a requirement to formulate and prosecute a strict liability. Crime violates the inviolable, the basic moral principles by which we evaluate the justice of laws. Underlying this stance is a moral theory, a deontological moral theory, the kind of moral theory that gives no room for a political dimension to mens rea requirements.

S1: The basic idea of a deontological theory, as I understand it, is to separate the right from the good. There can be acts that make the world better.

S26: That is that add to the good, but which are in violation of principles that themselves determine the boundaries of the right and also the wrong.

S1: So don’t torture as an example, this. We can all think of examples. Terrorist attacks, imminent, etc., where you can make the world better by torturing somebody. The ontologies would say, yes, but there’s this principle, don’t torture. And that’s the principle that determines the boundaries of the right. So you can recognize that sometimes you can make the world better by doing wrong. But our job is not to make the world better. Our job is to do what’s right.

S2: But the criticism of de ontology in public policymaking is that it isn’t about right. It’s about self-righteousness.

S26: Why isn’t the task of policy making consequentialist, which means you look at winners and losers of particular laws and regulations and you balance things out for long term good. What conception of right makes it possible for the right thing to do more long term harm than good? And my feeling is there’s a lot to that thought in many areas of public policy.


S1: Like who should get to drive, who should get to be a contractor for we’re looking at issues of these kind. Make really good sense. I feel that way about many different aspects of public policy. I just don’t feel that way about criminal justice.

S12: Really, it comes from a kind of vision about what criminal justice is for, what what it is, it’s the government trying to behave collectively for us on our behalf.

S1: In a way which we see as ripe and not just as good. And so to me, it’s something about the very nature of criminal justice and the very nature of criminal punishment that makes it especially important that the government act in accordance with right principle and not just make the world better.

S4: So it’s not an engineering tool. It’s a moral tool.

S1: That’s exactly right. That’s and that’s it. It’s probably not the only set of government behaviors that serve an essential moral function in this way, but it’s it’s one of them. And it’s intertwined with practices of holding each other accountable that are kind of essential to many aspects of ordinary human life and of what it is to be a human being in contact with and living among other human beings.

S2: So which is it is criminal justice, a public policy tool serving the interest of the greater good. Or a moral tool serving only the interests of right and wrong.

S6: Consequentialist saw utilitarians hate framing things this way because to them there’s no difference between the right and the good criminal justice policy when it’s underwritten by consequentialism rises and falls on data cost, benefit analysis, effectiveness measures, everything and nothing is moralized, including mens rea or requirements.


S2: But if you’re a DEONTAE allergist, the data, the cost benefit analysis governing through crime can be completely offensive to the very nature of criminal justice. Crime and punishment is not a matter of governance at all, but moral expression and condemnation. Criminal justice is an expression of our personal senses of justice and injustice. Moral reactions to objectionable states of mind and the people who have them.

S6: Here’s a pretty strong deontological commitment. No strict liability crimes ever. There’s no responsibility without mens rea. Ever. And there is no playing politics with criminal justice.

S2: What are the repercussions for such an unrelenting moral position? You’ll get to see as our series on Crime and Punishment continues.

S8: High Five Nation is written, produced and edited by Barry Lamm, associate professor of philosophy at Vassar College. Editorial director for Slate podcasts. Escape year old Ron Senior Managing Producer for Slate podcast.

S27: It’s June Thomas, operations manager for Slate podcast is Asha Solutia, editor for Slate.

S6: Plus is me child to our new executive producer for Slate podcasts. Is Alicia Montgomery.

S8: Production assistance this season provided by Noah Mendoza, good.

S27: Visit hyphenation dot org for complete show notes, soundtrack and reading list for every episode. That’s h i p h i nacion dot org.

S8: Follow hyphenation on Facebook and Twitter and on the Web site for updates on stories and ideas.