Criminal Law, Empirics, and Burglary
posted by Max Minzner
The next piece of empirical data that I think is worth considering the context of criminal law comes from an excellent book, Burglars on the Job (h/t Marginal Revolution), by Richard T. Wright and Scott Decker. The book is almost 15 years old, but anyone who teaches burglary as part of the basic criminal law course should read it. Wright and Decker interviewed 105 self-reported burglars and what drew my eye to the book is the methodology. Rather than interviewing incarcerated burglars, they set out to find active burglars in the community. They drew on a network of people who they believed were likely to know criminals. Interviewees would introduce them to burglars who in turn would introduce them to other burglars. This approach introduces a selection effect, of course, but avoids the obvious selection bias arising from only interviewing burglars in prison.
The book has a number of nice facts to add to the basic criminal law course. First, one of the points I try to emphasize when teaching criminal law is that you need the right paradigm for each crime. You want to make sure you are thinking about average cases rather than exceptional cases. For instance, you can’t think effectively about the crime of murder if you believe that women are more likely to be murdered by a serial killer than their husband or boyfriend. So who is the average burglar? Some of the facts they report are (or should be) widely known, but are important to reemphasize. For instance, drug addiction plays a heavy role in motivating residential burglaries and many of the burglars claimed that supporting a drug habit is the sole motivation for the burglary. Additionally, burglaries were highly concentrated – the interviewees were not committing episodic crimes. Many reported multiple break-ins per month. Burglars generally avoided breaking into occupied residences, in part out of a fear of apprehension, but interviewees were often more concerned about victim resistance. Burglars generally knew their victims, at least as acquaintances. Strangers were infrequent targets.
There is also an interesting fact for the law of attempt here. Wright and Decker report that offenders frequently would stake out a target home on several occasions prior to the burglary in order to learn the behavior pattern of the occupants. However, they often lacked a specific plan to break into the house on a particular date and time. Instead, this preparatory work was designed to allow a break-in on short notice whenever the burglar was short on money, which might be a week or a month later. Is this type of preparation an attempted burglary under the Model Penal Code? For those of you who are not just out of the first year criminal law course, the MPC attempt statute requires that the defendant engage in conduct constituting a “substantial step in a course of conduct planned to culminate in the commission of a crime” and the conduct must strongly corroborate the defendant’s criminal purpose. This serves as a nice hypothetical to work with students on the attempt statute. Performing surveillance on the place where the crime will be committed can be enough to meet the substantial step standard, but if the defendant only has a vague and indefinite plan to commit the crime at some point in the future, the defendant may not have crossed the line to committing attempted burglary. (I think this conduct should be enough for an attempt prosecution, but that’s not the point, of course.) I like this example because unlike many hypotheticals for incomplete act attempts, it does not seem forced or unrealistic.