Criminal Law, Empirics, and Burglary (II)
posted by Max Minzner
I have been away for awhile, but I’m back and want to continue discussing the book Burglars on the Job. There is still more there for those of you preparing your criminal law class for the first time. In particular, students often ask me “does the criminal law matter?” The utilitarian justifications behind the criminal law turn heavily on the idea that the law is knowable (and known) and that people avoid or reduce their criminal activity in response to the law. Especially in the death penalty context, there have been dueling regressions on the effect of differences in the law, but I’m never going to try to explain those results to my students and (to steal a line) regression results often fail to move people away from their pre-existing views. This area, though, is one where I think there’s a lot of value in qualitative empirical work. If you are interested in what criminals know and what shapes their behavior, asking criminals can be a good first step. The answers aren’t a replacement for harder data, but they are a valuable addition to the story.
So what do Wright and Decker find? First, there is some evidence that criminal penalties matter. As I noted earlier, the burglars they interviewed often avoided occupied houses, both because they feared victim resistance and because they might be called on to use violence, which they knew might lead to higher penalties. More surprising (at least to me), there was at least one burglar who, when discussing reasons to commit crime alone, demonstrated a vague awareness of the felony murder rule (although he believed that it was even broader and included a felony assault rule):
That’s the whole point of going [on burglaries] by yourself. If you have somebody else with your and they panic . . . they might hurt somebody. Then you got an assault charge. Accidentally kill somebody and then you both got a murder charge.
They also report some results suggesting a substitution effect. They quote burglars who had previously supported themselves through robberies and narcotics sales, but shifted to burglaries as penalties for those crimes increased. My students always find substitution effects interesting and it is nice to have at least anecdotal support for the idea. (For more on substiution effects, see here).
And finally, Wright and Decker make the point that prices in the stolen goods market appears to have fallen. A similar argument is made here. As consumer goods become cheaper, stealing them becomes less lucrative.
July 22, 2008 at 7:30 pm
Posted in: Law School (Teaching)
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Responses (2)
Ace - July 23, 2008 at 12:16 pm
The burglar has it right. It is not a “felony assault rule.” It is the conspiracy charge, he, being liable for all acts committed by his co-conspirators in furtherance of the conspiracy.
Max Minzner - July 23, 2008 at 1:24 pm
Ace,
That would be right if Missouri (like the federal system) followed Pinkerton, but my limited research suggests that they do not. They seem to adopt the MPC approach and require that the defendant be an accomplice in the substantive crime, not simply a co-conspirator. Missouri statutes are available at http://www.moga.mo.gov/statutesearch/. The Missouri accomplice statute is Section 562.041 and the conspiracy statute is Section 564.016. Of course, I would be very interested to hear from anyone who practices criminal law in Missouri on the question of whether the state permits a conviction on a Pinkerton theory.
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