![handle is hein.journals/jleg46 and id is 1 raw text is:
SHE COULD STEAL, BUT SHE COULD NOT ROB:
PUNISHMENT INFLATION IN BURGLARY STATUTES
NATIONWIDE
Candace McCoy* and Phillip M. Kopp**
INTRODUCTION
Burglary affects the lives of more people than homicide, rape, or grand theft.
Among serious felonies, burglary occurs most frequently, but because it very seldom
involves bodily harm, burglary is less dangerous than most assaults. The prevailing
view is that burglary is a crime committed against the property of another involving
entry into the home or other building, with intent to commit another separate crime
while inside.1 Usually, that other crime is theft, but sometimes the other crime is
violent assault if one or more people are present. Upon arrest, the offender can be
charged with both burglary and the crime committed during the burglary. It is the fact
that other crimes might occur after a burglar enters a building, and that those crimes
might be violent, that probably accounts for the categorization of burglary as a violent
offense even when no violence occurs.
Yet the criminal law punishes for acts committed, not for acts that might have been
committed, so the severity of the crime of burglary must spring from some
characteristic of the actual crime that sets it apart from lesser ones. Perhaps burglary
is punished severely not because it may create an environment in which violence might
occur, but because the property owner whose home and possessions have been invaded
perceives the violation not only as a theft but as an invasion of privacy. State statutes
vary widely as to elements of the crime, but most include some statutory factor meant
to account for the degree of invasion and any associated trauma. For instance,
distinctions are often drawn between whether the dwelling burglarized was occupied
or not, whether the burglary occurred during the day or night, or whether the building
*Candace McCoy, J.D., Ph.D. is Professor of Criminal Justice at the City University of New York,
Graduate Center and John Jay College. She has published widely in social science, policy, and law journals,
as well as authoring books and a co-edited textbook. A criminal justice generalist, she served as a Senior
Research Associate at the United States Sentencing Commission when the federal guidelines first took effect,
and most recently while on professional leave from CUNY served as the Director of Policy Analysis for the
Inspector General for the New York Police Department. Dr. McCoy is a member of the Ohio bar.
**Phillip M. Kopp, Ph.D. is an Assistant Professor in the Division of Politics, Administration, and
Justice at California State University - Fullerton. His research has been published in Criminal Justice Policy
Review and the American Journal of Criminal Justice. His current research focuses on the co-occurrence of
violence and burglary, use of force by police, use of body-worn cameras by police, and mass media
stereotypes of police and crime control. He dedicates this article to the late Professor Richard Culp, who first
sparked his interest in the topic.
1 The United States Supreme Court has said: [i]n listing those crimes, we have held, Congress referred
only to their usual or (in our terminology) generic versions-not to all variants of the offenses.
See Taylor v. United States, 495 U.S. 575, 598 (1990). That means as to burglary-the offense relevant in this
case-that Congress meant a crime 'contain[ing] the following elements: an unlawful or unprivileged entry
into ... a building or other structure, with intent to commit a crime.' Id. Mathis v. United States, 136 S. Ct.
2243, 2248 (2016).
1](ViewImageLocal?handle=hein.journals/jleg46&div=1&collection=&method=preview&ext=.png&size=3)
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