There are many specific crimes against property. There are however, three categories of crimes against property, and a few representative crimes within each.
· The three categories are:taking other people’s property, damaging or destroying other people’s property, and invading other people’s property.
· There are four crimes that consist of taking other peoples’ property: theft, robbery, fraud, andreceiving stolen property.
· There are two crimes that deal with damaging or destroying other peoples’ property: arson andcriminal mischief.
· There are two crimes that deal with criminal invasions of someone else’s property: burglary andcriminal trespass.
· There are also four kinds of cybercrimes: crimes against information brokers, crimes against manufacturers and distributors of digital media, crimes against online product and service sales, and crimes against business computer systems.
History of Criminal Taking of Others’ Property
Criminal “taking” began as part of the social concern with violent crimes against the person. That concern led to the creation of the common-law felony of robbery—taking property by force or the threat of force—which is a violent crime against persons and their property.
Criminal law next expanded to include taking property without consent, even if the thief used no force. The first nonconsensual, non violent taking felony was larceny.
Larceny didn’t protect the property of those who voluntarily handed it over to a caretaker. As society became more complex, caretakers converting property that owners voluntarily handed over to them grew into an enormous problem.
These possessions included tangible and intangible property. Legislatures responded to this problem of unlawful conversion of property by creating the felony of embezzlement.
Embezzlement was the first of the abuse-of-trust crimes that eventually came to be called white-collar crimes—crimes growing out of opportunities to get someone else’s property because of the perpetrator’s occupation.
So, robbery applied to those who took or threatened to take someone else’s property by force; larceny applied to those who snuck away with someone else’s property; embezzlement to those who kept permanently someone else’s property they had only a temporary right to possess.
The crime of obtaining property by false pretenses filled the gap left by larceny and embezzlement when it came to criminally getting ownership of other people’s property. In false pretenses actus reus, “deceiving” replaces “taking” in larceny and “converting” in embezzlement.
In Ponzi schemes, schemers tell investors they’re buying assets such as real estate, stocks and bonds, or consumer products. In fact, they’re buying nothing. Instead, Ponzi schemers use the money to pay earlier investors. Eventually, the money dries up and everything collapses.
Most states have consolidated the old crimes of larceny, embezzlement, and false pretenses into one offense called theft. They accept the social reality that all these ancient crimes were aimed at the same evil—intentionally getting control of someone else’s property.
Consolidated theft statutes eliminate the artificial need to separate theft into distinct offenses according to their actus reus. So, under modern theft statutes, actus reus includes “taking and carrying away,” or “converting,” or “swindling” to obtain possession of someone else’s property. The mens rea in modern theft statutes remains as it always was—acquiring someone else’s property “purposely” or “knowingly” in order to permanently deprive the owner of its possession.
In his address to the American Sociological Association in 1940, Edwin Sutherland referred to two kinds of business and professional crime: “fraud and swindling” and “double cross.”
Sutherland called attention to a large and growing variety of criminal behavior that criminologists had ignored. Federal mail fraud includes “schemes to defraud or for obtaining money or property” (U.S. Code Title 18, Section 1341). “The history of larceny and fraud is also the history of supplementing civil actions with criminal punishment.” What was once a tort is now also a crime (Dubber and Kelman 2005, 919).
Damaging and Destroying Other People’s Property
Robbery is the taking and carrying away of another’s property by force or threat of force with the intent to permanently deprive the owner of possession. Robbery is really two crimes, theft and assault. But the criminal law has never treated it that way, because robbery is considered more serious than the sum of these two parts.
The use of force, or the threat of force, is the essence of robbery criminal act. Any amount of force beyond the amount needed to take and carry away someone else’s property is enough. Picking a pocket isn’t robbery because picking pockets is defined as requiring only enough force to remove the contents of the pocket.
But even slightly mishandling the victim, like a push, turns the pickpocket into a robber. Robbery doesn’t even require the use of actual force; threatened force is enough. Robbery mens rea is the same as theft mens rea (the intent to take another person’s property and keep it permanently) but with the additional intent to use immediate force, or the threat of immediate force, to get it.
· Most states have divided robbery into degrees, based on three circumstances: whether robbers are armed, whether the robber acted alone or with accomplices, and the kind and degree of injury robbers inflict on their victims.
It’s not only a crime to steal someone else’s property, it’s also a crime to “receive” property someone else has already stolen. This crime is called receiving stolen property, and the purpose of making this a crime is to prevent and to punish individuals who benefit from someone else’s theft, even though they didn’t have anything to do with the original theft.
Although “receiving” is primarily directed at fences (professionals who sell stolen property for profit), it alsotargets people who know, or should know, they’re buying stolen stuff because the prices are too low. The actus reus of receiving stolen property is the act of receiving the property. Receiving requires that the receiver control the property, at least briefly.
But the receiver doesn’t have to possess the property physically. Receiving stolen property mens rea varies. In some states, receivers have to know the goods are stolen. In others, believing the goods are stolen is enough. In all jurisdictions, knowledge may be inferred from surrounding circumstances, such as receiving goods from a known thief or buying goods at a fraction of their real value.
Arson has grown far beyond its origins in burning houses to include burning almost any kind of building, vessel, or vehicle. Also, the property burned doesn’t have to be someone else’s. Today, arson is a crime against possession and occupancy, not just against ownership.
So even where owners aren’t in possession of, or don’t occupy, their own property, arson can still be committed against it. One thing hasn’t changed; arson is still a very serious crime against property and persons.
At common law, burning had its obvious meaning—setting a building on fire. However, just setting the fire wasn’t enough; the fire had to reach the structure and burn it. Most arson statutes follow the common-law mens rea requirement that arsonists have to “maliciously and willfully” burn or set fire to buildings.
Some courts call arson mens rea general intent. Typically, there are two degrees of arson. The most serious, first-degree arson, is burning homes or other occupied structures where there’s danger to human life. Second-degree arson includes burning unoccupied structures, vehicles, and boats. The MPC divides arson into two degrees, based on defendants’ blameworthiness. The most blameworthy are defendants who intend to destroy buildings, not merely set fire to or burn them; these are first-degree arsonists. Second-degree arsonists set buildings on fire for other purposes.
Criminal mischief descends from another common-law crime, the misdemeanor called “malicious mischief.” Malicious mischief consisted of destroying or damaging tangible property.
The modern counterpart of malicious mischief (the MPC calls it “criminal” mischief) includes three types of harm to tangible property: destruction or damage by fire, explosives, or other “dangerous acts”, tampering with tangible property so as to endanger property, or deception or threat that causes someone to suffer money loss.
All three forms of damage and destruction usually are defined as felonies, but less serious felonies than the more serious felony arson. The actus reus of criminal mischief mirrors the three types of criminal mischief; the actus reus is burning, exploding, flooding, or committing some other dangerous act.
Tampering is any act that creates a danger to property, even if it doesn’t actually cause any damage to the property. Deception or threat actus reus usually consists of “expensive practical jokes.”
Generalizations about criminal mischief mens rea are impossible because statutes are all over the place, including whether they contain all the mental states we’ve encountered throughout the book (purposely, knowingly, recklessly, and negligently). So you need to check the malicious (or criminal) mischief statute of an individual state to find out how it defines the element of criminal intent.
Invading Other People’s Property
The heart of burglary and criminal trespass is invading others’ property, not taking, receiving, destroying, or damaging it. Invasion itself is the harm. So the two main crimes of invading someone else’s property, homes, and other occupied structures (burglary) or invading other property (criminal trespass) are crimes of criminal conduct; they don’t require causing a bad result.
So they’re crimes even if no property is taken, damaged, or destroyed during the invasion. Because burglary is defined so broadly, many states divide it into several degrees.
Until the 1900s, burglary actus reus consisted of two actions—breaking and entering. In the early days of the common law, breaking meant making a violent entry, usually knocking down doors and smashing windows.
Entering (in burglary) is part of the actus reus of burglary, meaning to come or go into the building. Today, some statutes have completely removed the entering element by providing that “remaining” in a structure lawfully entered is enough. The MPC’s (ALI 1985, 2:2, 60) definition limits burglary to occupied structures, because they’re the “intrusions that are typically the most alarming and dangerous.”
Modern law has expanded the common law definition to include your own property; now, for example, landlords can burglarize their tenants’ apartments. Burglary is a specific-intent crime. The prosecution has to prove two mens rea elements: the intent to commit the actus reus (breaking, entering, or remaining), and the intent to commit a crime once inside the structure broken into, entered, or remained in. Because burglary is defined so broadly, many states divide it into several degrees.
Criminal trespass is a broader but less serious crime than burglary. It’s broader because it’s not limited to invasions of occupied buildings, and the trespasser doesn’t have to intend to commit a crime in addition to the trespass. The heart of criminal trespass is unwanted presence.
Trespass used to be limited to unauthorized invasions of physical property. The actus reus of criminal trespass is the unauthorized entering of or remaining on the premises of another person. The mens rea varies.
Here are three variations:
· the defendant knowingly enters or remains without authority or by invitation, license, privilege, or legality (most states)
· the defendant has the specific intent to enter or remain without authority for some unlawful purpose (a few states)
· the defendant bears strict liability for entering or remaining
The MPC created three degrees of criminal trespass: misdemeanor – entering or remaining in an occupied dwelling at night, petty misdemeanor – entering or remaining in any occupied building or structure, violation – entering or remaining in any place where a “no trespass” notice is given.
Cybercrimes
Cybercrime is crime committed through the Internet or some other computer network. Identity theft is the crime committed most often in the United States. The consequences of wrongful access to personal information can be devastating, and they go beyond the money victims lose to identify thieves.
Identity thieves are extremely hard to catch and convict. Intellectual property definitely needs protection, even more so today than before the widespread use of computers and the Internet. First, intellectual property theft costs at least $250 billion every year (Department of Justice 2006, 13).
The cost may be a lot higher because businesses don’t report these thefts, fearing it’ll hurt business. Second, intellectual property thefts go undetected because of the difficulty of catching cybercriminals(Rustad 2001, 65).
Third, cybercriminals are smart, skilled, and highly motivated, not just by money but by the darker and dangerous side of our nature—revenge, hate, ideology, and the powerful, seductive, addictive thrill of hacking. A whole new vocabulary has grown to describe the ways hackers commit cybercrimes. In addition to viruses and wiretapping here are some other methods: spoofing, piggybacking, data diddling, salami attack, E-mail flood attack, password sniffing, and worms.
Chapter 12
Crimes Against Public Order and Morals
Disorderly Conduct
Disorderly conduct crimes are offenses against public order and morals. Except for riot, they are minor crimes that legislators, judges, and scholars didn’t pay much attention to until the 1950s when the Model Penal Code (MPC) was adopted by the American Law Institute (ALI).
The lack of attention was due to the fact that the punishment was minor, most defendants were poor and convictions were rarely appealed. Disorderly conduct offenses are an important part of the criminal justice system for three reasons: they “affect large numbers of defendants, involve a great proportion of public activity, and powerfully influence the view of public justice held by millions of people” (ALI 1985, Part II, Vol. 3, Art. 250, 251, 309).
Disorderly conduct statutes grew out of the ancient common-law crime known as “breach of the peace.” Some statutes define disorderly conduct in general terms. Others go the other direction and try to specify all possible types of disorderly conduct.
Both types of statutes create two problems.
· First, they’re too vague to give individuals and law enforcement officers’ notice of what the law prohibits
· Second, neither requires mens rea.
In practice, the most commonly used disorderly conduct law is fighting in public. Fighting can cause two harms: disturbing community peace and disturbing or endangering innocent bystanders.
Group disorderly conduct consisted of three misdemeanors at the common law: unlawful assembly, rout, and riot.
Unlawful assembly is the ancient crime of three or more persons gathering together to commit an unlawful act.
Riot is disorderly conduct committed by more than three persons. Riot is still a felony under modern law fortwo reasons. First, it provides harsher penalties for disorderly conduct when group behavior gets “especially alarming or dangerous.” Second, it allows punishment for individuals in a disorderly crowd who disobey police orders to disperse (ALI 1985, 3:316–17).
“Quality of Life” Crimes
In the 1980s, two prominent scholars sensed a deep public yearning for recovering what they called a lost sense of public “good manners,” especially in our largest cities. Professors James Q. Wilson and George L. Kelling (1982) suggested that what were labeled “petty crimes” weren’t just “bothering” law-abiding people and creating a yearning for a more polite past; they were connected to serious crime.
They called this connection between disorderly conduct and serious crime the broken-windows theory. Others argue that both disorder and serious crime are caused by the same factors and that disorder does not always lead to serious crime.
There’s a disconnect between this national focus on one side and local concern on the other. Mayors and local residents do worry about murder, rape, burglary, and theft, but they also care a lot about order on their streets, in their parks, and in other public places.
Any examination of criminal law has to recognize quality of life crimes as part of early twenty-first-century life. Since the 1980s, state statutes and city ordinances have reinvigorated and molded the old crimes against public order and morals to fit the public’s demand that criminal justice preserve, protect, and even restore the quality of life in their communities.
For at least 600 years, it’s been a crime for poor people to roam around without visible means of support (vagrancy) or to stand around with no apparent purpose (loitering). Laws targeting poor people’s behavior, and the attitudes behind them, began to change during the Great Depression of the 1930s.
In 1941, the U.S. Supreme Court struck down a vagrancy statute that prohibited the importation of paupers into California. During the 1960s and 1970s, courts began to strike down vagrancy laws because they unfairly discriminated against the poor. In Papichristou v. City of Jacksonville (1972), the U.S. Court struck down the Jacksonville, Florida, vagrancy ordinance, which was nearly identical to virtually every other vagrancy law in the country.
The counterpart to vagrancy is loitering, which means to “remain in one place with no apparent purpose.” In Kolender v. Lawson (1983), the Court struck down a California statute that combined ancient vagrancy and loitering into a new crime defined as “wandering the streets and failing to produce credible identification” when a police officer asked for it.
As it did with the vagrancy statute in Papachristou, the Court ruled that the statute was void for vagueness. At the same time these decisions were easing up on control over the behavior of poor people in public, other events were creating a rapidly—and to many a frightening—growth of an underclass.
Mental institutions were in the midst of major deinstitutionalization of the mentally ill; family breakdowns and breakups were increasing steeply; crack cocaine was becoming more available on the streets; hard economic times were upon us; and budgets for social programs were tightening.
By the late 1980s, this rising underclass and its public presence and behavior led many city dwellers to conclude that things had gone too far. Enforcing the laws regulating the behavior of homeless and other street people generates controversy because these laws seem to target the poorest and weakest members of the community to provide for the comfort and convenience of better-off residents.
In Joyce v. City and County of San Francisco (1994), U.S. District Judge Lowell Jensen heard a motion to grant a preliminary injunction (a temporary court order to do or to stop doing something) to stop the city of San Francisco from continuing its Matrix Program. The program was designed to preserve the quality of life on San Francisco streets and other public places.
· Be aware that granting a preliminary injunction isn’t a decision that the plaintiff is right; it only means the plaintiff has presented enough evidence to justify a temporary freeze to give the Court time to decide whether to rule in the plaintiff’s favor.
Panhandling consists of stopping people on the street to ask them for food or money. The First Amendment guarantees individuals freedom of speech. But free speech doesn’t mean you can say anything you want anywhere and anytime. The U.S. Supreme Court has “rejected the notion that a city is powerless to protect its citizens from unwanted exposure to certain methods of expression which may legitimately be deemed a public nuisance” (Scheidegger 1993, 7).
The Court has established a number of tests to determine whether ordinances violate the First Amendment guarantee of free speech.
· One is to look at the place where the speech takes place. In traditional public forums—streets, sidewalks, and parks— where people have expressed their views since ancient times, the freedom to solicit is virtually unrestricted.
· In designated public forums—places the government chooses to make available to the public—the government has more leeway to regulate solicitation.
· In nonpublic forums—airports, bus stations, railroad stations, subways, and shopping malls—the government has broad power to restrict and even prohibit solicitation (Scheidegger 1993, 7–9).
· According to the U.S. Supreme Court, to be constitutional, restrictions have to satisfy three elements of a time, place, and manner test: they’re not based on the content of the speech; they serve a significant government interest; they leave open other channels of expression.
· In addition to forum and time, place, and manner restrictions, the First Amendment gives the government considerable leeway to regulate nonverbal expression. The First Amendment grants commercial speech less protection than other types of speech.
Gang Activity
A number of state and city governments have passed criminal laws to regulate gang behavior. In some places, it’s a crime to participate in a gang. Some statutes and ordinances have stiffened the penalties for crimes committed by gang members. Others make it a crime to encourage minors to participate in gangs.
Some have applied organized crime statutes to gangs. A few have punished parents for their children’s gang activities. Cities have also passed ordinances banning gang members from certain public places, particularly city parks.
In addition to criminal penalties, cities have also turned to civil remedies to control gang activity. For example, in the ancient civil remedy injunction to abate public nuisances, which is still used, government attorneys ask courts to declare gang activities and gang members public nuisances and to issue injunctions (court orders) to abate (stop) the public nuisance.
Civil gang injunctions (CGI) are a growing gang suppression strategy. They’re non criminal lawsuits brought by cities seeking restraining orders to bar gang members from gang activities, which can include, among others, interacting with one another, entering specific sections of the city, and wearing gang colors.
Youth crime in the United States remains near the lowest levels seen in the past three decades, yet public concern and media coverage of gang activity has skyrocketed since 2000. Many questions remain unanswered.
The Justice Policy Institute (Greene and Pranis 2007) conducted an extensive review of research on gangs. They point out how the news is full of stories that hammer home a cycle, repeated in city after city: crime goes up in [you name the city]; law enforcement cracks down on gang activity; and crime goes down. But, a review of the investigations of gang enforcement efforts in 17 jurisdictions since the 1980s tells a different story.
Civil gang injunctions (CGI) occur when a judge issues a restraining order against specific gang members of a particular gang. They’re noncriminal lawsuits brought bycities seeking restraining orders to bar gang members from gang activities, which can include, among others, interacting with one another, entering specific sections of the city, and wearing gang colors.
Professors Cheryl Maxson and Karen Hennigan, and David Sloane (2005) conducted the first scientific assessment of CGIs in San Bernardino, California. They found positive evidence of short-term effects but no significant changes in intermediate or long-term outcomes except for less fear of crime. Professor Jeffrey Grogger (2002) evaluated the effectiveness of CGIs. The analysis indicates that, in the first year after the injunctions are imposed, they lead the level of violent crime to decrease by 5 to 10 percent.
“Victimless” Crimes
The term “victimless crime” applies only to consenting adults and refers to crimes committed by adults who don’t see themselves as victims of their behavior. A number of types of offenses have been termed victimless.
Among these are substance abuse, Internet censorship, loitering, prostitution, sodomy, seat belt law violations, helmet law violations, bans on bungee jumping, and laws against assisted suicide. Crimes involving a willing buyer and seller, such as prostitution, drug and firearms crimes can also be victimless crimes. Referring to many crimes in which the perpetrators don’t see themselves as victimized as “victimless crimes” is controversial.
In medieval days, when the Church was more powerful than kings and queens, ecclesiastical courts had total power to try and punish crimes against “family and morals,” including all nonviolent sexual behavior and marital relations breaches.
Controversy makes it tough to balance public good and individual privacy in these cases. There’s a deep rift between those who believe criminal law should enforce morals to “purify” society and those who just as deeply believe that consenting adults’ nonviolent sexual conduct is none of the criminal law’s business (Morris and Hawkins 1970).
Prostitution involves at least two people—the prostitute who provides the sexual service and the client who buys the service. Frequently, there’s also a third party—the promoter (pimp) who controls, finds johns, and takes a cut of the earnings.
· In this section, we’ll examine the history of this ancient crime, the double standard today, and two remedies for the double standard: equal protection lawsuits and local government programs that target johns.
From colonial times, prostitution was the common law crime of “selling one’s body for money”. In the 1800s, states passed statutes that made prostitution a crime. By 1900, there were anti-prostitution statutes in every state (Kandel 1992, 341). The criminal law moved from a “hands off” approach to enforcing these laws during most of the 1800s, to an aggressive “swift and harsh” punishment response by 1900.
Judges sentenced women based on their sexual history, not on the elements of prostitution—selling sex for money. While women were hauled into court to answer charges, no johns were in sight to answer for buying sex, let alone having to answer for their sexual history. Why did the double standard persist through so much of U.S. history? Most scholars point to two beliefs with deep roots in Victorian culture and society:males were viewed as reformable, women were not; men can’t control their sex drive, but women don’t even have a sex drive.
The solution to the double standard required two major changes.
1. First, legislatures had to enact statutes to provide for punishing the prostitute and the john.
2. Second, law enforcement, prosecutors, and courts have to enforce the statutes equally against prostitutes and johns.
At present, there are three types of prostitution statutes:
· those that punish the prostitute but not the john
· those that punish both, but punish the prostitute more severely
· those that punish both the prostitute and the john equally
A few states retain the double standard in its traditional form (number 1). Those that punish both, but punish the prostitute more (number 2), follow the MPC § 251.2 (ALI 1985). Many state statutes now provide for full equality of punishment for both prostitutes and johns.
Let’s turn our attention from the law on the books to the law in action, namely the equality of enforcement, where the available statistics show that the double standard is far from dead. We need to look at the gap between men and women with some caution.
We don’t know how many men are johns because we don’t know how many men are pimps and prostitutes. And, we don’t know how many women are madams. Furthermore, we don’t know how many prostitution arrests are hidden in the “disorderly conduct” numbers because of officer discretion and department policy to arrest prostitutes (but not johns) for disorderly conduct (Kandel 1992, 332).
Still, on balance it’s safe to assume that the number of johns is likely less, and the number of prostitutes even greater, than the chart depicts. What accounts for this persistent double standard, whatever the size of the gender gap? One explanation is that police decoys arrest prostitutes; therefore, there are no johns to arrest (Lefler 1999, 20). Another is that by arresting prostitutes, they’re catching the “profiteer.” But, if that’s true, one lawyer wondered, why don’t they go after the pimps? They’re the ones who “exploit women for profit” (21).
Some individual judges have acted to fight discriminatory enforcement. Some local governments have created new programs directed at johns. They differ from the traditional policy of incarcerating only prostitutes.
They may deter johns, but are programs directed only at johns discriminatory, and therefore no better than the double standard that punishes only prostitutes? Think about that in connection with three john-focused policies: car forfeiture, driver license revocation, and publishing the names of arrested johns in local newspapers and online.
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