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46 J. Legis. 1 (2019)

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).


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