Milk crates are surprisingly ubiquitous. Durable built-in handles are well placed for lifting. The shape of the bottom locks tightly into the top of the next when stacked. They make a rugged, modular tower that’s hard to topple and easy to move. They’re remarkably durable, lasting up to 20 years even with daily use.
They’re so likely to be pilfered and reused that millions of Americans have a handful in their homes, serving some trivial household purpose, without knowing exactly where they came from. Chances are that milk crate is also illegal to own, bearing some version of the words, “Unauthorized use of milk cases illegal.”
Milk crates vary in design and construction from dairy to dairy, but they’re made of rigid, high quality plastic. The crates cost about $4 to manufacture, with some fluctuation according to the price of the necessary petroleum, but might sell for $20-$40 online or in a home improvement store.
Yet it’s easy to think of them as “free.” One of the peculiarities of milk crates is that they are most useful when they can be left unattended. They’re expensive to manufacture, in aggregate, but not expensive enough to heavily guard or individually monitor. Dozens of them are stacked, empty, on loading docks and in alleys behind diaries, bakeries, and retail groceries. Awaiting overnight and early-morning pickup by designated drivers, they make tempting bait for renegade home-organizers and criminal recyclers.
Dairies and other milk producers in many states have lobbied for special criminal penalties for buying or selling milk crates that belong to someone else. Dairies stamp or burn their names in new crates, along with a (state-specific) warning like this: “Unauthorized use of milk cases illegal; fine of $300 or imprisonment up to 90 days, Pennsylvania Law Act No. 37, 1987.” Industry spokesmen claimed milk producers didn’t want to criminalize anyone. They just wanted people to return branded milk crates to the dairy, so the dairy didn’t have to replace them.
Home re-use of milk crates in garages or attics is not what dairy advocacy groups set out to target. “Personal use” is estimated to account for 5 percent of total annual milk-crate losses. Most of the losses ($80 million in 2009) stem from organized crime, in which thieves pick up large numbers of crates and take them to semi-legal recyclers who shred the high-quality plastic into chips for other purposes.
The International Dairy Foods Association maintains its own methods for tracking theft, identifying weak spots in the supply chains between its members. Given the distributed impact of a slow siphoning of interchangeable crates, industry groups are motivated to identify and report large thefts, which by their own estimate would solve 95 percent of the problem.
But legislatures didn’t just assign penalties for stealing or selling crates, but over time criminalized possession and misuse of a single milk crate. Police were now empowered to patrol the “misuse” of this decades-old, widely distributed item worth less than a frozen burrito.
Reasonable people might assume that the law is more of a deterrent, and that no one would really be arrested for possessing milk crates. Or, at least, we might hope that enforcement would target verifiable criminal activity, like large-scale theft for profit. But cities like Miami and New York have used the law to harass homeless people found sitting on overturned milk crates.
Not having stolen the milk crate, or even knowing how it came to be separated from its dairy supply chain, is no excuse. The end user is presumed to be in possession of stolen property.
In 2021, viral video platform TikTok briefly promoted a #milkcratechallenge. Participants attempted to run up, and then down, a triangular structure of empty crates. A New York Police officer participated, on video, scaling a stack including clearly dairy-branded crates, which his fellow cops arrested people for sitting on.
Polk County, Florida Sheriff’s department arrested and jailed a man because he was using a milk crate as a bicycle basket, and the Sheriff’s office reasoned, “what we’ve learned is, those who will go out and steal a milk crate, for example, are the same people who are probably breaking into cars, breaking into your house.”
Do we really believe that using a milk crate as a bicycle basket is a good predictor of willingness to burgle?
The fate of the milk crate (the ostensible reason for having a milk crate law) is of no significance to an officer looking for a reason to roust a man from under a bridge, or bother someone selling oranges on the sidewalk. Can you imagine an NYPD officer spending his whole day investigating New York’s 28,000 storage units in search of dairy-stamped crates? The effectively unenforceable prohibition, with its provenance in lobbying, becomes an excuse to police a targeted person.
The resolution to this dissonance is not, of course, to enforce the law universally, tracking down everyone who posted video of themselves criminally misusing milk crates. Nor is it to raid the suburban garage of every state senator in search of illegal storage solutions.
Criminalizing the private possession of milk crates creates criminals, and excuses for police interactions, where none previously existed. In Florida and Maryland, among other states, penalties are $1,000 and up to one year in prison, making the penalty for possession of a milk crate on par with possession of marijuana.
Arresting people for misusing milk crates may feel a bit absurd, but the problems it highlights are anything but amusing. All over the nation, for those of us with the privacy of a basement or garage or attic, milk crates quietly house our sports equipment and children’s toys. Our decades-long criminal activity goes entirely unnoticed.
Thousands of brake lights go out, vehicle registrations or licenses lapse, and only a few will result in anything more than a ticket. Millions of adults smoke cannabis “illegally” in their own homes and are never arrested or jailed. For many of us, these laws are inconveniences, barely significant, because we assume the law will not happen to us. We are confident in our shield of private property privacy, our knowledge of civil liberties and the money to enforce them in a court. Even as we commit the crime, rummaging through the milk crate, we do not consider ourselves criminals. The lawmakers who added special criminal penalties for milk-create-crimes are not likely to have returned each one they’ve had since college to its labeled diary.
If local police or federal agents were inclined to search any one of our homes, they might find many such barely noticeable violations of an absurdly complex criminal code. The law is not, as Bastiat would say, “either respected or respectable.” Too many of us in this nation are willing to accept, even chuckle at, laws we know we’ll keep on breaking, confident the law will happen to someone else. And it does happen, not just to criminals but to peaceful-but-powerless people sitting on milk crates because they haven’t got chairs. If we do not resist on their behalf, the encroachment of these petty tyrannies will happen to us sooner or later.
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*AIER is a 501(c)(3) Nonprofit registered in the US under EIN:04-2121305