![]() Mary follows ten steps behind, and even though she does not pronounce the magic words, the doors open for her as well. A woman is walking ahead of her with two manic children, one of whom shouts, “Open Sesame!” as the doors part to admit them. Later that day, Mary is walking towards the entrance of the target store. Chris reminds Mary that she has been caught doing something similar at another Wal-Mart “last year” and that she was “banned” from “the premises.” She reassures him that she has patronized many Wal-Mart stores recently and made purchases without incident. After placing the goods in some old plastic bags with the store logo, she will hand them to Chris, who will take them inside and return them for cash using the receipt. Mary has an old Wal-Mart receipt she suggests that she visit the local Wal-Mart, take a few items listed on her receipt, put them in her bag, and leave without visiting the cash register. Consider a couple looking for money to buy hydrocodone. This is an article lamenting the divergence between burglary’s definition in contemporary criminal codes and the intuitive idea of burglary in American culture. Lawmakers’ Surprise: Trouble Defining Something Everybody Knows The Public’s Surprise: The Rule of Law Value of Predictability Upset Expectations: Public and Legislative Burglary in America at the Advent of the Model Penal Code If states do not want to adopt the Model Penal Code’s language wholesale, they should at least copy its language specifying that burglary cannot be committed in a place that is open to the public. Thus, I recommend that states simply adopt the Model Penal Code’s burglary provision. The statute they included in their finished product does do a much better job than the law on the books in most states of picking out all and only conduct both intuitively recognizable as burglary and serious enough to merit punishment as such. The drafters of the Model Penal Code argued that one of the best reasons to retain burglary was that hundreds of years of common law tradition had habituated the people to believe that burglary was a distinctly serious way of victimizing another person. ![]() I point to two legislative solutions that are ready at hand. Third, legislators may be equally surprised at how statutes are being applied, indicating how difficult it is to successfully draft a modern statute for a classic malum in se crime. Second, public expectations are frustrated, and the rule of law damaged, when the law surprisingly classifies crime that looks like one offense, like shoplifting, as an intuitively distinct offense, like burglary. First, people may be charged with burglary for minor conduct that would otherwise be a misdemeanor, producing excessive and disproportionate sentences that violate the internal logic of a criminal code that ranks crimes and indexes punishments to crimes based on that ranking. ![]() ![]() Several costs result from poorly drafted statutes that sweep in conduct that looks nothing like what a common person would recognize as burglary. As journalists and defense practitioners have documented, prosecutors in some states have been charging repeat shoplifters with burglary, on the theory that, having been banned for life from a certain chain store for shoplifting in the past, they committed burglary by entering with the rest of the public and shoplifting again years later. ![]() These loosely written burglary statutes can work significant injustices and are responsible for counterintuitive real-world prosecutions that would be laughable were the consequences for criminal defendants not so dire. I will show that the definition of burglary in modern state criminal codes deviates significantly from the ordinary idea of what burglary is and what makes it wrong. ![]()
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |