That’s Not a Burglary! Classic Crimes and Current Codes

I. Introduction

This is an article lamenting the divergence between burglary’s definition in contemporary criminal codes and the intuitive idea of burglary in American culture. Consider a couple looking for money to buy hydrocodone. Mary has an old Wal-Mart receipt; she suggests that she visit the local Wal-Mart, take a few items listed on her receipt, put them in her bag, and leave without visiting the cash register. After placing the goods in some old plastic bags with the store logo, she will hand them to Chris, who will take them inside and return them for cash using the receipt. Chris reminds Mary that she has been caught doing something similar at another Wal-Mart “last year” and that she was “banned” from “the premises.” She reassures him that she has patronized many Wal-Mart stores recently and made purchases without incident.

Later that day, Mary is walking towards the entrance of the target store. A woman is walking ahead of her with two manic children, one of whom shouts, “Open Sesame!” as the doors part to admit them. Mary follows ten steps behind, and even though she does not pronounce the magic words, the doors open for her as well. Once inside, she finds a secluded aisle and packs her purse full of merchandise with price stickers totaling $125. Twenty minutes later, the doors open wide for Chris who takes Mary’s haul to the returns counter. While he is standing in line, however, the “loss prevention officer” takes him by the shoulder and leads him to a drywalled space off the selling floor. Twenty minutes later, Mary is starting to worry about Chris when she sees two cop cars pull in front of and behind her Honda Civic.

In some Tennessee counties, the prosecutors follow a novel policy of charging women who do as Mary does not just with trespassing, larceny, or a specially defined crime of retail fraud, but with burglary.^[1] This is a Class D felony subject to a sentence of between two- and twelve-years imprisonment, depending on the convicted defendant’s criminal history.^[2] In Tennessee, “a person commits burglary [if], without the effective consent of the property owner,” she “[e]nters a building and commits or attempts to commit a felony, theft or assault.”^[3] On their face, the words of the Tennessee statute permit prosecutors to indict Mary because she committed theft inside a building owned by a corporation that told her she was no longer allowed to enter its stores.

The Tennessee statute is only one example of the dramatic variation between the common law definition of burglary and its delineation in contemporary criminal codes.^[4] Most codes no longer require that the offense be committed against someone’s home (a dwelling), with some degree of force to gain entry (a breaking), or after dark (in the nighttime).^[5] More subtly, some statutes no longer require that the offender enter the building with criminal intent, allowing the commission of an offense once inside to suffice.^[6] Given that states across the country have adopted lax definitions of burglary, Tennessee prosecutors are not the only attorneys for the state to successfully prosecute criminals like Mary for burglary: their colleagues in New York, Washington, Kansas, and Missouri have won such convictions and upheld them on appeal.^[7]

This is not a call for a return to a common law definition of burglary but rather a call for a commonplace definition of burglary. My intent is not to rail against legislation in derogation of the common law. I have no quarrel with the legal and popular consensus supporting legislative supremacy within constitutional boundaries, much less do I wish to impeach the democratic values that undergird that consensus. The legislature has the right to define and redefine crimes so long as it does so within constitutional and moral limits on state authority.^[8] My purpose is to argue that contemporary definitions of burglary frequently fail to capture all and only conduct that fits the public’s idea of burglary. To clarify our culture’s burglary archetype, I will show how the word is used in movies, newspapers, and other pieces of popular culture.

Legislative attempts to escape the rigidity and technicalities of the common law of crimes were well-motivated. However, it can be very difficult to specify new elements that capture what the drafters and the public have in mind when they use a word like “burglary.” To give a related example, the New York Court of Appeals, after struggling for years to limn the state’s modern kidnapping statute,^[9] wrote in exasperation that it would “limit the application of the kidnapping statute to ‘kidnapping’ in the conventional sense in which that term has now come to have acquired meaning.”^[10]

There are good reasons to track popular definitions in the case of a crime like burglary. The first is to better align jurisprudence with the expectations of legislators and the public. One does not have to be a pedantic common law aficionado to look at the “Wal‑Mart burglary”^[11] described above and say, “That’s just shoplifting, not burglary. Isn’t that a misdemeanor?” The commentator can help the judge or the legislator find the definition she was looking for; the senator was sure she knew very well what a burglary was before she tried to say what it was.^[12] It is much better to explain “the conventional sense in which [a] term has now come to have acquired meaning” than it is to merely point to it.^[13]

The second reason to try to track archetypal burglary is to keep punishments just and proportional to the gravity of the crime. Punishments for traditional, malum in se felonies like burglary will be set with the archetypal offense and its evils in mind.^[14] As such, if the punishments assigned are to track the quantum of malum in the defendant’s actions, then the elements of the crime should comport with the archetype.

What would a better approach to burglary look like? The drafters of the Model Penal Code included a model burglary provision but did so reluctantly.^[15] They knew that common law burglary was essentially an attempt offense made substantive, that it had at one time compensated for the weaknesses in the law of criminal attempts, and that it could now be safely abolished without leaving any wrongful, dangerous conduct outside of criminal jurisdiction.^[16] They did, however, acknowledge that the idea of a distinct crime of burglary was firmly lodged in the collective consciousness of the American people.^[17] A chief reason to offer legislatures a model burglary statute then was to accommodate the public’s sense that there ought to be a burglary crime in their laws corresponding to the distinct evil of disturbing a person’s home or other place of security.^[18]

I believe that the MPC’s burglary section is the right approach to defining the crime. Unfortunately, few jurisdictions have copied it wholesale, as they ought to have done.^[19] The arguments of the Model Penal Code’s drafters in favor of their version of burglary concern policy and doctrinal rigor.^[20] However, I will plump for the Model Penal Code statute as more faithful to the archetype of burglary and more attuned to the peculiar evil the public perceives in it than the enacted alternatives. Ultimately, if public attachment to burglary—the deeply ingrained folk belief that burglary is a distinct way of victimizing others—is the best reason to retain it as a separate offense, then the best defense of a model burglary statute is to argue that it best matches the popular picture of burglary.

II. Background

Burglary’s common law definition is a hackneyed lesson in analytic jurisprudence. A burglary was the breaking and entering of the dwelling of another, during the nighttime, with the intent to commit a felony therein.^[21] Mary’s audacious, big box store heist fails to satisfy several of these criteria. A Wal-Mart is not a dwelling; Mary did not force her way inside—on the contrary, the doors slid open for her; and we may presume that Mary went inside the store during the daylight hours—the irregular sleeping habits of opiate addicts notwithstanding.

Before we look at the history of statutory burglary in America, we should note that one of burglary’s elements was substantially diluted by English judges long before the era of criminal law codification. Not wishing to see malefactors escape on technicalities, the courts contorted themselves to interpret the breaking element liberally.^[22] It was reduced to the requirement that some force was used to come in, or in the alternative, that fraud or threats were employed to gain entry.^[23] In time, even turning a latch was sufficient force, meaning that only the defendant who entered by an open door or window was immune from a burglary indictment.^[24] Astute commentators recognized that the purpose of the breaking element was epistemic, offering a ready way to separate the goats from the sheep who might wander into a person’s home.^[25] Furthermore, the need for a breaking allowed judges to set on their righthand side, safe from a burglar’s perdition, those who committed crimes in homes where they had been freely admitted.^[26] In this way, the breaking element functioned like the modern requirement that the entry be “without the effective consent of the owner.”^[27]

A. Burglary in America at the Advent of the Model Penal Code

The criminal law quickly became statutory in the early American republic.^[28] By the middle of the last century, legislatures had modified the definition of the crime so much that students at Columbia and the University of Pennsylvania wrote two law review notes chronicling and critiquing the changes.^[29] These pieces are a snapshot of the state of burglary law in the several states during the advent years of the Model Penal Code.

After World War II, “breaking” was a necessary element of burglary in only eighteen states or territories.^[30] In those jurisdictions that retained the element, court decisions had reduced the amount of force required far beyond even the English common law’s lenient standards.^[31] For example, appellate courts in some states had deemed raising a partially opened window or pushing an open door to be breakings.^[32] Given how the breaking element had been eroded, commentators felt that its removal was for the best.^[33] According to them, the trouble of defining how much force was necessary to constitute a breaking had proven to be an asinine, scholastic task without relation to substantive policy or justice.^[34] The only problem was that removing the breaking element meant that there was then no bar in principle to prosecuting an invitee or person entering a building open to the public for burglary.^[35]

A person breaking into a building probably does not have permission to enter, so it would have been mostly redundant for the common law judges to specify that a burglar’s entry must be without leave of the one whose dwelling he burglarizes. Indeed, if alleged burglars (comically?) crowbarred into structures they could have entered by the front door, the courts could refuse to find a breaking or burglary.^[36] Eliminating “breaking” had the unintended consequence of allowing people to burglarize structures that they entered with perfect placidity and candor, albeit with felonious intentions.^[37] While I agree that “[i]t seems clear that any attempt to differentiate behavior on the basis of the concept of breaking must result in a tangle of incongruous distinctions,”^[38] I think it should be equally pellucid by now that it is no easy task to toss out “breaking” and produce a definition of burglary that captures a peculiar, recognizable wrong. Indeed, the first measure apt to come to mind—requiring that entry be without the owner’s consent—is not prophylactic for the indictments of repeat shoplifters considered in this Article.

American legislatures did not want to leave burglary a nocturnal crime. In 1951, legislation in every state sanctioned burglaries committed during the daytime.^[39] Unlike the “breaking” element, however, nighttime continued to find a place in the statutory schemes of thirty-four states or territories.^[40] In these jurisdictions, either stiffer penalties applied to night-owls or first‑degree burglary charges were reserved for them.^[41]

Prior to the Model Penal Code, the final change of note in codified burglary was the expansion of the offense to nondwellings or to buildings generally. While first-degree burglary could only be committed in a dwelling in thirty-one jurisdictions, other structures were protected by some degree of the burglary offense in every state.^[42] State laws that did not simply grant protection to “any building” or “any structure” frequently featured risibly exhaustive lists of quaint, cornpone places that could be burglarized.^[43] For instance, Nebraska made it a felony to break and enter a “smokehouse,” “chicken house,” “malthouse,” “stillhouse,” or “private telephone pay station or booth.”^[44] At this time, “[a] few jurisdictions include[d] automobiles specifically,” whether or not they were being used for overnight sleeping.^[45]

Whereas eliminating the “breaking” element left a subtle bug in the criminal code (enabling prosecutions of people who entered homes with consent), growing burglary beyond dwellings worked an obvious expansion in the number of criminals who could be charged with this felony. Minturn Wright III, the author of the survey note in the University of Pennsylvania Law Review, insightfully theorized that the offense had shifted from forfending the hazards of nighttime home invasions to functioning as a general location enhancer whenever a crime was committed within someone else’s building.^[46] Wright wrote, “Place four walls around property, and the magic of the law will give it this added protection.”^[47] He dubbed this alchemical architecture, “The Magic of Four Walls and a Roof.”^[48]

According to Wright, the legislatures never intended to cast this spell and change the function of burglary.^[49] Their zeal to let no baleful folk escape the judgment of the criminal courts—“to apprehend criminal personalities at the earliest possible moment”—slowly enlarged the crime to the point that it had nothing to do with its original purpose of guarding the peace of the home.^[50] This change took place so gradually that laypeople, whether or not they sat in session at the capital, were unlikely to perceive it.^[51] Burglary’s imperceptible shift was the key to it retaining a special heading in the criminal codes. So long as no one realized that, under the extant codes, a burglar could look as much like a shoplifter or thieving housemaid as Cary Grant’s John Robie, the cat burglar, legislators could retain the sense that they were only modernizing and improving one of the law’s familiar crimes.^[52] “The powerful influence of common law burglary has made us retain the idea that a breaking and entering is a substantive crime itself,” observed Wright in 1951.^[53]

The historical element driving the appearance of a specially denominated burglary provision in the criminal codes of every state by the mid-twentieth century cannot be underestimated.^[54] The idea of a special crime called “burglary” in both the law and in popular thought epitomizes the path-dependency of certain concepts in our culture. There is nothing natural about having an offense that criminalizes entering someone else’s space with the intent to commit a crime; there is nothing in the structure of human society that compels sanctioning burglary alongside theft, murder, battery, and rape.^[55]

The best evidence for this is the absence of an offense like burglary in any of the countries outside the common law world.^[56] “It might be difficult to explain to a Frenchman . . . why burglary is one of our gravest crimes.”^[57] The American has this concept that the Frenchman lacks because hundreds of years of living under the common law gave to her culture the idea of burglary as a basic crime alongside murder, robbery, etc. The American legislators who replaced the common law of crimes with penal codes must have written the new burglary provision not only in the shadow of the common law but also under the influence of a popular idea of burglary that itself sprouted under the courthouse eaves.

B. The Model Penal Code Approach

The Model Penal Code contained a felony burglary provision and a misdemeanor “criminal trespass” provision.^[58] Of burglary, it reads: “A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.”^[59] It makes burglary a second-degree felony if committed “in the dwelling of another at night,” while “purposely, knowingly or recklessly” inflicting bodily injury on someone, or while carrying a deadly weapon.^[60] Absent these conditions, it is a felony of the third-degree.^[61] The phrase “occupied structure” is specially defined to sweep in vans, trailers, and tents used for sleeping or as a place of business.^[62]

The criminal trespass provision is a tailored crime for the peculiar harm of entering a building a person has no right to be in and carries a proportionate penalty well short of those provided for felony burglary.^[63] A person commits criminal trespass if, “knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any building or occupied structure, or separately secured or occupied portion thereof.”^[64]

The American Law Institute’s proposal for burglary reflects the exasperation of the bar (or at least the highbrow sections for whom the ALI spoke) with burglary’s piecemeal transformation.^[65] The drafters perceived that contemporary burglary statutes were distinguishing behavior “only on purely artificial grounds” by significantly enhancing the severity of an offense whenever it was committed or attempted in someone else’s building.^[66] For example, they railed against state statutes that made “[e]ntering a henhouse to steal a chicken” a serious burglary, “while stealing a chicken at the henhouse door was merely petty larceny.”^[67]

According to the drafters, burglary had become so slack because legislators, although they slowly and gradually loosened it, could not see the transformation on account of the nominal continuity of the crime.^[68] Like Wright, they felt that lawmakers had whittled down the limits on the offense out of a zeal to proscribe bad behavior at the earliest possible moment.^[69] In their own analysis, the MPC authors focused on their theory that burglary had originally developed to compensate for weaknesses in the law of criminal attempts.^[70] After all, burglary is a meta‑crime that renders otherwise noncriminal or misdemeanant behavior a felony if accompanied by the intent to commit a crime.^[71] This is especially true once it is stripped of the breaking element.^[72] As a species of attempt that happened to be hallowed by tradition as a substantive crime, burglary was primed for adaptation into a catchall offense by legislators seeking a more aggressive, precautionary criminal law.^[73]

The authors of the model code made all buildings able to be burglarized.^[74] Although this is a major departure from the common law, it is a change in keeping with public perceptions of burglary. The archetypal masked man with a crowbar is just as likely to be targeting a department store as a suburban residence. It remains true, however, that including shops, warehouses, and other buildings where no one lives does distance the proposed definition from one of burglary’s most obvious and enduring purposes: vindicating “the notion that a man’s home was his castle and that while there, he was to be disturbed unlawfully only at the expense of great risk of death.”^[75] On this rationale, burglary is serious business due to both the interests in safety and seclusion at stake as well as the probability of confused, fear-driven violence occasioned by home invasions. I speak of “seclusion” because it must be appreciated that the home is not simply a place to store property but a special place of rest, autonomy, and privacy. By contrast, in a commercial space, like a store, the interest in seclusion vanishes; the expectations of security for one’s goods weakens but remains substantial, and the risk of violence is diminished, even though there remains a possibility for confrontation between burglars and security guards or owners who linger when their business is closed.

In their commentary, the drafters at times appear to conflate the values and perils at issue in assaults on residential and nonresidential structures. They write initially that “[r]estricting the offense to buildings and other occupied structures confines it to those intrusions that are typically the most alarming and dangerous,” and yet they aver that “the dwelling is the place where intrusions, particularly at night, create the greatest alarm and invoke the most justifiable claims to privacy.”^[76] The latter statement acknowledges that entering a closed store is less likely to occasion fear and violence than coming into someone else’s home uninvited.

The drafters’ inconsistent willingness to own that dwellings are the places where special hazards attend criminal intrusions finds shape in the special treatment accorded to burglaries of dwellings in the nighttime. These offenses are classified as second‑degree felonies, as opposed to ordinary burglaries which are rated as third-degree felonies.^[77] In the land of Môdèl, those who commit third-degree felonies can be sentenced to between one- and five-years imprisonment, while those who commit second-degree felonies stand to stay confined for one to ten years.^[78] This two-to-one ratio is a substantial step up for targeting a residence. As such, the comparatively small penalties that would attend punishment for burglary of a place where no one lived, like a warehouse, embody a good compromise. The Code preserves the traditional, severe penalties for burglary for the most traditional, most frightening type of burglary.^[79] At the same time, it respects the fact that the public’s idea of burglary has evolved to recognize a similar evil in invasions of nonresidential buildings, where people also expect to keep their things and to risk defending their things.^[80]

The Model Penal Code does not protect cars or other vehicles with its burglary provision unless they are adapted for sleeping or doing business.^[81] Under this provision, an Austin food trailer, a Portland food cart, or a Key West mobile home can be burglarized, but the majority of passenger cars and commercial trucks cannot be. This approach correctly seeks equal protection for those whose homes are built from sheet metal rather than plywood. At the same time, it aptly avoids making it a burglary to smash the window of a Chevrolet in a parking lot and rifle through the glove box. So long as we think that a car is not a home and the interests in security and seclusion in the latter do not extend to the former, this approach comports with the rationale for a special offense of burglary.^[82]

Nighttime serves only to enhance the possible punishment for burglary and is not a necessary feature of the crime under the MPC.^[83] The offense becomes a second-degree felony when committed against the dwelling of another at night.^[84] The reason for enhancing the punishment for nocturnal burglary is in keeping with the general rationale for the offense: “[T]he dwelling is the place where intrusions, particularly at night, create the greatest alarm and invoke the most justifiable claims to privacy.”^[85]

In explaining their elimination of the “breaking” requirement, the drafters pointed out that it “had become little more than symbolic, leading to absurd distinctions.”^[86] This is no innovation to bemoan, because as previously discussed, commentators have long known that defining the amount of force required to constitute a breaking is an overwrought enigma.^[87] Critically, the drafters were well aware of the unintended consequences of eliminating breaking (also discussed above)^[88] and created an exception for buildings where “the premises are at the time open to the public or the actor is licensed or privileged to enter.”^[89] They justified their decision as follows:

Subsection (1) retains the core of the common-law conception. At least this much of the concept of “breaking” should be retained in order to exclude from burglary situations such as the following: a servant enters his employer’s house as he normally is privileged to do, intending on the occasion to steal some silver; a shoplifter enters a department store during business hours to steal from the counters; a litigant enters the courthouse with intent to commit perjury; a fireman called on to put out a fire resolves, as he breaks down the door of the burning house, to misappropriate some of the householder’s belongings. Such situations involve no surreptitious intrusion, no element of aggravation of the crime that the actor proposes to carry out. Statutes that purport to include any entry with criminal purpose have thus not been followed.^[90]

Of course, when updated for the era of big box stores, this description—“a shoplifter enters a department store during business hours to steal from the counters”—perfectly captures the “Wal-Mart burglaries” prosecutors are charging in Tennessee.^[91]

The MPC drafters clung firmly to tradition when they demanded that a burglar possess the intent to commit a crime at the time of entry.^[92] Although they did not require that the intended offense be a felony, this is a minor change considering the proportion of burglars who intend to commit larceny and the fact that “all larceny was a felony at common law.”^[93]

By sticking with tradition on this point, the drafters held the line against two common forms of doctrinal attrition in this area. First, a majority of states now allow burglary to be committed by “remaining” in a building, thus abandoning the common law element of entry.^[94] Second, some jurisdictions no longer require that a burglar possess the intent to commit an offense at the time of entry.^[95] For example, in Texas, a burglar can be anyone who, “without the effective consent of the owner,” “enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.”^[96]

C. Contemporary Burglary Statutes

The publication of the Model Penal Code did not halt the mid‑century trend to transform burglary into a location enhancer. Indeed, although some of its wording on burglary and trespass was taken up by the architects of state codes, these were often used to articulate definitions of burglary that were at odds with the thinking of the MPC drafters and other scholars.^[97] This is in keeping with the general reception of the Code: legislators were keen to borrow its mechanics without mirroring its definitions of particular crimes.^[98]

When the authors of the Model Penal Code retained nighttime as an element of the highest degree of burglary but dropped it otherwise, they were mirroring a trend in state statutes.^[99] However, in the years after the Model Penal Code, most states abandoned nighttime entirely. It is now mentioned in the statutes of a small handful of states that treat it as an enhancement provision rather than a sine qua non of their burglary provisions.^[100]

The long decline of the breaking element continued apace, though this was a change that the MPC drafters had actually endorsed. LaFave now counts very few states in which “breaking” or the use of force to gain entry are mentioned in the burglary provisions.^[101] And of course, this residual toehold is not the robust breaking requirement of the earlier common law, but the latter‑day, diluted version in which turning a latch or opening a door amount to breaking.^[102]

Surveilling what had become of burglary after the Model Penal Code, Helen Anderson observed that “[t]he most significant change is the widespread elimination of entry as a requirement.”^[103] I would only add a closely allied change: the elimination of the requirement that the intent to commit a crime be present at the time of entering (or remaining surreptitiously) in the building. When one considers that the requirement that a burglary be against a dwelling was already deeply eroded by the time the Code was drafted,^[104] these two developments appear as the most significant changes in the last fifty or sixty years.

A majority of states now allow burglary to be committed by “remaining unlawfully,” “remaining,” or remaining “surreptitious[ly]” in a building.^[105] Under this rule, a defendant who enters the premises lawfully and with permission may still be convicted of burglary if his license or privilege to be there is terminated and he stays there with the intent to commit a crime. Reported cases document prosecutions on such facts, demonstrating that this is not merely a law professor’s hypothetical.^[106] On the better view, only those who remain surreptitiously with criminal intent are burglars: “[F]or this expansion not also to cover certain other situations in which the unlawful remaining ought not be treated as burglary, it is best to limit the remaining-within alternative to where that conduct is done surreptitiously, which too often has not been done.”^[107]

Some states have made a more subtle but allied change targeting the hoary requirement that the defendant enter (or remain) with the intent to commit a crime.^[108] This is a dramatic swerve. Without this element, burglary is no longer a “specific intent” crime.^[109] Concomitantly, this change rips burglary away from the rationale surmised by the drafters of the Model Penal Code—viz., compensating for the weaknesses in the common law of attempts.^[110]

Like Sleeping Beauty fulfilling the witch’s curse by pricking her finger on a spindle, these last bits of legislative tailoring are the culmination of the magic of four walls and a roof. When burglary is no longer a specific intent crime and no longer has entry as an element, it turns from an offense functioning to guard the home and criminalize attacks on it at an early stage to a general location enhancer. Its chief function becomes to increase penalties whenever a crime is committed inside a building where a person is not lawfully present.

III. The Problem

This long and little remarked evolution of burglary made possible the prosecutions of the “Wal-Mart burglary” described at the outset of this Article. It is my contention that the unintuitive application of these serious charges to shoplifters is a symptom of an illness in modern burglary statutes—to wit, their divergence from popular understandings of what burglary is and what makes it wrong. After reviewing what I take the commonplace folk understanding of burglary to be, I will show that two problems attend departures from it. First, penalties set by legislatures with the archetypal offense in mind will be excessive when applied to crimes of a different character, and second, prosecutions launched under these deviant statutes will be surprising to, and defy the expectations of, the public and legislators. The first issue is a problem of criminal justice ethics, while the second undermines rule of law values like notice and legislative supremacy that codifying the substantive law of crimes is supposed to advance.

A. The Folk Concept

Burglars, a Wall Street Journal lifestyle piece says, like to target houses with garages.^[111] Some burglars will follow a person on Facebook and strike when they see him posting pictures of himself from a tropical locale.^[112] Yet, lest readers weep too much for vacationers and garage owners, a Journal book review of A Burglar’s Guide to the City informs them that the practitioners of The Dying Art of Burglary are an increasingly lonely bunch:^[113]

Buildings and burglars are intertwined in the mind of Mr. Manaugh, whose nonfiction book arrives Tuesday . . . . Fascinated by bandits who smash through walls, crawl up air ducts and tunnel through floors, the author wanted to explore their singular approach to architecture as a force to be abused, outsmarted and escaped.^[114]

When the Watergate burglars were apprehended, “police found lock-picks and door jimmies, almost $2,300 in cash, most of it in $100 bills with the serial numbers in sequence . . . a short wave receiver that could pick up police calls, 40 rolls of unexposed film, two 35 millimeter cameras and three pen-sized tear gas guns.”^[115] More fancifully, the moviegoing public imagines “the master burglar played by George Clooney . . . plan[ning] to rob $160 million from three casinos on fight night” by overcoming “doors that require different six digit codes every 12 hours, an elevator that won’t move without an authorized fingerprint and two kinds of voice confirmation, [and] an elevator shaft rigged with motion detectors.”^[116]

As these references illustrate, burglary is all about sneaking or breaking into someone else’s home or business, though if the burglar is lucky, he can simply open an unlocked door or window. A burglar usually is after loot, but as Watergate illustrates, he may have some other criminal purpose instead. It is inconsistent with this popular image of burglary to place the label on a criminal who openly, conspicuously, and peaceably enters a building. After all, such a criminal has no need to “case a house in advance, looking for a drainpipe that would work as a handhold, an overhang that would offer safe passage to the ground, a bush that would provide cover.”^[117] Were a lay speaker to insist on calling the person who candidly walks into an open, public place “a burglar,” the contradictions will leave the speaker feeling like “someone whose jaws have somehow got out of alignment: the teeth don’t come together in a proper bite.”^[118]

B. Excessive Punishments

How serious of a crime is burglary? Should it be a felony of the first-, second-, or third-degree? When a legislator asks herself these questions, what sorts of actions will she envision? I contend that she will think of the archetypal burglary, even though contemporary definitions of burglary often sweep in actions that look nothing like an archetypal burglary. As a result, the law ultimately risks imposing excessive punishment and unwarranted stigma on criminals whose conduct is less serious than an archetypal burglary.

To begin, let us remind ourselves of how our criminal codes classify crimes and individuate their eligible punishments. This way of organizing the criminal law is so habitual that it is worth fantasizing about an entirely different system to appreciate the purpose of our way of doing things—viz., sorting crimes into classes of felonies or misdemeanors and setting minimum and maximum sentences thereby.

It is possible to imagine a criminal law that does not index types of crime to ranges of permissible punishment. The criminal law could be reconstructed so that the definitions of the crimes with which we are familiar (e.g., theft, murder, assault, sexual assault) were all different ways of committing the single offense of “crime.”^[119] Once someone had committed “crime,” the punishment he received would be determined based on a system resembling the Federal Sentencing Guidelines. These sentencing rules could take into account both factors conventionally registered in the definitions of particular crimes—factors like the defendant’s mens rea or the type of harm inflicted (loss of life versus loss of property)—and factors traditionally detected at sentencing (recidivism, repentance, or motive).

I ask the reader to imagine this alternative system of criminal law, not to consider its merits, but to focus our attention on the reasons for linking the definitions of particular crimes to ranges of permissible punishment. Consider how we typically define theft as a lesser felony than robbery.^[120] We do this because robbery is typically a more serious and blameworthy crime than mere theft. And yet, it is possible for a thief who nonviolently steals a diamond bracelet to be more blameworthy than a robber who takes the same necklace with force. If Jean Valjean punches Ebenezer Scrooge to rob him of the bracelet in order to fund lifesaving back surgery for Quasimodo, his actions are less harmful and less blameworthy than if Uriah Heep takes the bracelet from the keepsake box of the orphan Cosette out of pure greed.

If we had the alternative criminal law of one big crime, our sentencing guidelines could, on the basis of factors like motive, readily dictate a greater punishment for Heep than Valjean. Under our criminal laws, a court can consider matters like motive at sentencing, but the offense of conviction places limits on how much these matters may dictate the penal outcome. Typically, a judge or jury will set a punishment, within the prescribed statutory maximum and minimum,^[121] taking into account a host of factors that do not figure in the definition of substantive offenses.^[122]

With a system such as we actually have, we must do our best to frame the definitions of different offenses and grade those offenses according to their normal gravity. R.A. Duff expressed this simple point well:

The criminal law’s rules for offenses and defenses might be generally just: it defines as crimes what are indeed usually wrongs that merit public condemnation; it generally distinguishes wrongs that differ from each other significantly as to character or seriousness; it generally recognizes as defenses, whether partial or complete, the kinds of factor that negate responsibility or culpability.^[123]

Given that the law here “generally distinguishes wrongs,” a drafter of a penal code should think generically about the blameworthiness and severity of those actions that fall under the elements of a crime she is defining.^[124] As she draws the boundaries of each crime by defining its elements, she should have one eye on her grading scheme so that the typical conduct captured by an offense that will be rated a second-degree felony will be proportionally worse than the typical conduct covered by an offense that will be rated a third-degree felony.

Suppose a legislator has helped to draft a new penal code that includes headings for all of the conventional malum in se felonies. The proposed code includes an offense of burglary that looks something like the Tennessee burglary statute: “A person commits burglary who, without the effective consent of the property owner: (1) Enters a building . . . with intent to commit a felony, theft or assault; [or] . . . (3) Enters a building and commits or attempts to commit a felony, theft or assault.”^[125] How will a legislator go about deciding what penalty should apply to this offense? We know that she should focus on the run-of-the-mill offense and not rare cases that fall under its definition. Her sense, however, of the distribution of cases that meet the definition will be strongly influenced by the title of the offense, and the title of the offense, “burglary,” will evoke the archetypal burglary. Though the definition that she has drafted now extends well beyond the archetypal “thief in the night,” her idea of what a typical burglary looks like—its harms, its dangers, and its wickedness—will be determined by that archetype. Because she is a lay person, subtle lawyerly readings of this text are unlikely to occur to her, and she may not realize that the offense as newly defined plausibly applies to conduct that does not fit the archetype.

We might wish that the legislator’s judgment about the severity of the crime would be informed by empirical evidence on the prevalence of the behavior in question and the harm it typically causes. The trouble is that any data in this jurisdiction would have to be parsed or reparsed to find which incidents fell under the new definition of burglary. This task is doubly fraught given that (1) the actual conduct the courts will, or should, deem burglary once the new definition becomes a part of doctrine is partly opaque to the legislator, and (2) existing data is unlikely to track the distinctions picked out in the new definition. After all, what a police officer filling out forms that will be collated in crime statistics typically calls theft or assault, the new definition may classify as burglary. As the drafters of the MPC described this problem: “The possibilities of arbitrary classification of offenses were so numerous under typical burglary legislation in effect when the Model Code was drafted that it was impossible to understand or evaluate even the limited crime statistics that were available.”^[126] Indeed, one of the reasons the drafters of the MPC gave for tightening and reforming the definition of burglary was to create something workable for crime statistics: “[A] haphazardly defined burglary offense impedes scientific study of crime and its treatment by making statistical studies based on this categorization virtually meaningless.”^[127]

Given that the penalty for burglary will be set with the archetypal crime in mind, establishing a loose definition of the offense that sweeps in conduct that is nothing like the folk model risks imposing excessive punishments on criminals who ought to be prosecuted for lesser offenses. In the case of burglary, the archetypal offense looks very grave, due to both the values violated—security and seclusion in one’s home or business—and the likelihood of panicking violence should the burglar be confronted by someone living or working within her target. Tennessee’s prosecutions for “Wal-Mart” burglaries illustrate how trivial, by comparison, much of the conduct that falls under a contemporary burglary statute can be.^[128] When conduct that walks, talks, and hurts like a misdemeanor can be prosecuted as a felony, then possible punishments are no longer proportional to the weight of the crimes.

Despite the retributivist connotations of the word “proportionality,” the proportionality problem remains regardless of the philosophy of punishment underlying the sanctions a code assigns. From a retributivist perspective, someone who shoplifts after being told not to return to a public store has not demonstrated the same blameworthy disregard for another’s privacy, safety, and security as someone who sneaks or forces their way into someone else’s home or office in order to steal.^[129] Similarly, it stands to reason that someone who cannot resist snatching someone else’s chattels when they are spread before him is less in need of character reformation (rehabilitation) than someone willing to commit a conventional burglary.^[130] Even in a consequentialist penal law, the goal is to set the amount of punishment at the point of diminishing returns—where any further increase would only diminish expected utility by causing the burglar’s suffering to increase more than the expected suffering of crime victims decreases.^[131] When far less serious crime is treated as a burglary, the law has probably overshot the point of diminishing returns.

In fact, the point can be made without reference to any particular justification for punishment or theory about what makes one offense more serious than another. “Seriousness” can be understood in terms of the harm a crime causes and the need to deter it, the criminal’s need for rehabilitation, the wickedness of committing the crime, or some combination of all of these. Regardless of how seriousness is understood, grading crimes implies a judgment about their relative gravity. Technically speaking, modern criminal codes have an ordinal logic: the law has chosen to create tiers of crimes and make punishments proportional to the offense’s rank.^[132] It runs counter to the logic of such a system to grade a crime based on the normal case (found in reliance on the archetypal case) and yet use a definition of that crime that includes conduct that better resembles the normal case of a crime of a much lower grade.

It could be argued that sentencing discretion, perhaps made wiser by sentencing guidelines, is sufficient to remedy this problem. After all, the law is perfectly equipped to treat some “burglaries” more seriously than others while declaring that all of them are, perhaps, third-degree felonies. Overlap in the sentence ranges for crimes up and down the hierarchy facilitates this. For example, in Texas, someone who commits a Class A misdemeanor can be sentenced to the maximum term of a year in jail,^[133] while the same person convicted of a state-jail felony (the lowest degree of felony) can be sentenced to the minimum term of 180 days in jail.^[134]

The trouble with relying on sentencing discretion is that the span of contemporary burglary statutes simply exceeds the range of authorized sentences. Return to the case of a Tennessee Wal‑Mart shoplifter charged as a burglar rather than as a thief. The burglary is a Class D felony subject to a prison sentence of between two and twelve years.^[135] Meanwhile, theft of less than $1,000-worth of goods is a Class A misdemeanor that the courts can meet with a maximum prison sentence of no more than eleven months and twenty-nine days.^[136]

Furthermore, sentencing cannot account for the impact on the defendant when her charges cross the misdemeanor–felony barrier. A person who sustains a felony conviction faces more collateral consequences of greater intensity than someone convicted of a misdemeanor.^[137] These special consequences can include deportation, vulnerability to future prosecution for being a felon in possession of a firearm, and diminished chances of finding a job owing to the extra stigma of a felony conviction.^[138]

Even if courts’ sentencing discretion could mitigate the problem, their opportunities to exercise that discretion are limited by plea bargaining. “[C]riminal justice today is for the most part a system of pleas, not a system of trials.”^[139] The terms of the defendant’s plea are settled by a process of “horse trading” between prosecution and defense.^[140] “The prosecutor agrees to relative leniency in sentencing or charging for a promise from the defendant that he will plead guilty and save the prosecutor’s office resources.”^[141] Prosecutors can use their charging discretion to gain leverage in that horse trading.^[142] Even if a judge might see that a Wal-Mart burglary deserves a sentence at the bottom of the permissible range, the prosecutor carries the felony card in her hand and by threatening to play it, can keep the defendant from testing the court’s views on charging shoplifting as burglary. “Thus, sloppy doctrine can be abused by prosecutors before other actors in the criminal justice system, like judges and juries, are given a chance to reject the overstretching of a pliant legal theory.”^[143] Moreover, recent empirical scholarship by Carlos Berdejó documents that the problems of plea bargaining are more pronounced when (1) the defendants are people of color, and (2) the defendants are charged with misdemeanors or low-level felonies, like the Tennessee Wal-Mart burglaries.^[144]

C. Upset Expectations: Public and Legislative

1. The Public’s Surprise: The Rule of Law Value of Predictability

When a code’s definition of a traditional malum in se felony, like burglary, departs from the popular archetype of that crime, prosecutions, pursuant to the deviant definition, are likely to surprise members of the public who hear about them or are targeted by them. Such surprise detracts from one of the values of maintaining the rule of law: the predictability of official actions.^[145]

“[T]he rule of law is associated, not only with universality and nonarbitrariness, but also with the demand for official action to be governed by rules which are general, clear, [and] well‑known . . . .”^[146] The official actions of prosecutors who charge shoplifters with burglary, while perhaps foreseeable to an ace law student with special acumen for issue spotting, are not carried out pursuant to a law that is clear and well-known.^[147] Although these prosecutions are sanctioned by doctrinally defensible, formalistic readings of the statute, the actions of their targets bear no resemblance to the crime popularly identified under the name of the offense. While a steady succession of such prosecutions may eventually make their occurrence less surprising to common people, a price is paid in the meantime as law departs from common understandings.

In the criminal law domain, the price is paid in the diminished respect for law that grows from popular amazement whenever the law calls an apple an orange. Imagine if the law on robbery were rewritten in Tennessee so that any touching qualified as sufficient force to convert larceny into robbery. The Nashville district attorney has noticed a large uptick in pickpocketing arrests. An enterprising, quick-witted assistant district attorney is happy to inform him that, as she explained in her student note titled, Dirt’s Too Rocky by Far: Picking Punishments for Pickpockets on Rocky Top, most or all pickpocketing is actually robbery under the code’s new definition. One can imagine the consternation of the friends and loved ones of the pickpockets who must now face felony charges for nonviolently swiping wallets. They may express their feelings as did Dickens’s character: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a [sic] ass—a idiot.’”^[148]

Predictability alone does not guarantee justice, but it does provide a thin fairness that is one of the fruits of the rule of law.^[149] Public consternation and astonishment at calling pickpocketing “robbery” or shoplifting “burglary” show that fruit souring.

2. Lawmakers’ Surprise: Trouble Defining Something Everybody Knows

Even though they approved the definitions in question, members of the legislature may be equally surprised by how a deviant definition is applied by the courts or police. While it is possible that legislators foresaw or even intended the counterintuitive applications of the burglary statute that they voted to approve, it is more plausible that they are just as blindsided as anyone else who lacks a Philadelphia lawyer’s ability to discern the logical reach of a statute.

Legislators’ surprise in these circumstances is indicative of a drafting problem. The authors of a new penal code assume it must contain the traditional malum in se crimes and must write definitions of them. While the authors could simply duplicate the common law, they have good reason to avoid the common law’s technicalities and archaisms.^[150] For example, they may not want to perpetuate common law burglary’s breaking element and allow some home invaders to escape punishment simply because they were lucky to find a door left open.^[151] It is no mean feat, however, to draft a new definition of a malum in se crime that dispenses with the common law’s peculiarities and yet captures all and only those actions that we expect such a definition to encompass. In brief, the legislature or its ghostwriters face the task of finding precise words to say what most of us presume to know without inventing or revivifying capricious distinctions.

Under these circumstances, the scholarly commentator comes humbly, not spoiling to contradict the policy aims or normative premises of the lawmaker, but offering to find the words that will keep the lawmaker from misspeaking. If we all agreed that we shall have a penal code and that it shall criminalize murder, assault, theft, robbery, and burglary, we may assume until shown otherwise that our disagreements arise from our shared frustrations at making our words express that which we thought we already knew: what a murder, an assault, a theft, a robbery, or a burglary, is.^[152] That we think we already know what these things are is evident from the ease with which we fluently use their names.^[153]

Of course, a defender of the new model burglary statutes could reject the assumption that legislators are simply trying to find words to fit commonplace notions of what a burglary is without leaving arbitrary gaps and loopholes in the law. On this view, it need not be a fault in a statute that its definition deviates from the archetypal offense. For instance, if someone adduces a normative argument for expanding the definition of burglary and can show that that argument may have influenced the drafting of the statute, then a critical commentator will not be able to assume that deviation from the popular image of a crime is poor drafting. Yet, as matters stand, we have no evidence of such a legislative agenda—no indication for example that the Tennessee legislature thought burglary was the antidote to recidivist shoplifting. Thus, it does count against a burglary statute that it departs from the popular image of burglary because the popular model is the model of burglary we assume that the drafters of legislation are trying to pull from the back of their heads and fix in the code books.

IV. The Solution

The solution to these problems would be in hand if only state legislatures would grasp it. By adopting the Model Penal Code’s definition of burglary, they could gift themselves a statute that comes admirably close to the archetype of burglary. Assuming their goal is to articulate an intuitive, modern definition of burglary, the Code’s drafters have done their work for them. If they would adopt it wholesale, they would make charges of Wal‑Mart burglaries impossible and put paid to the larger problem of excessive punishments and surprising, unintuitive prosecutions for burglary. The MPC’s definition reads as follows:

Burglary.

1. Burglary Defined. A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. It is an affirmative defense to prosecution for burglary that the building or structure was abandoned.

2. Grading. Burglary is a felony of the second degree if it is perpetrated in the dwelling of another at night, or if, in the course of committing the offense, the actor:

(a) purposely, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone; or

(b) is armed with explosives or a deadly weapon.

Otherwise, burglary is a felony of the third degree. An act shall be deemed “in the course of committing” an offense if it occurs in an attempt to commit the offense or in flight after the attempt or commission.

3. Multiple Convictions. A person may not be convicted both for burglary and for the offense which it was his purpose to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.^[154]

There is a great deal of conventional wisdom in this definition of burglary. It does not allow one to burglarize a car, unless it is also someone’s home or business: “‘occupied structure’ means any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present.”^[155] It recognizes that burglary, while a serious offense, is a milder felony when committed against a business than when it is committed in the common law fashion (against a dwelling, at night).^[156] It dispels the magic of four walls and a roof; it does not make it burglary to commit an offense in a building but sticks to criminalizing entry with a criminal purpose.^[157] And most saliently at present, it does not allow a building or structure to be burglarized if that place was open to the public at the time of entry.^[158]

This last clause targets the core drafting mistake that produced the Wal-Mart burglary. The archetypal burglary is accomplished with force or stealth. It is inconsistent with this image of burglary to enter a place with perfect candor and serenity. When a place is open to the public and the burglar can walk through the front door with the rest of the masses, it doesn’t look like burglary to enter with criminal intent. After all, the reasons that we fear burglars—intrusion on our privacy and seclusion, desperate struggle with our backs against the wall, and despoliation of our “treasures upon earth”^[159]—dissolve in a place where we have let John Doe and Jane Roe come, walk in, and look around.

It is a mistake to let the other clause—“the actor is licensed or privileged to enter”—carry the weight alone. Whether an actor is licensed or privileged is a legal switch that can be flipped by giving someone a piece of paper after they have been caught shoplifting. In reality, when someone who has received this notice of exclusion approaches the front door of a big box store, the doors will still slide open for her, regardless of the fact that her license or privilege to enter was revoked long ago by written notice. She may have entered many times since receiving this notice to honestly shop, and yet, when she is caught shoplifting again, she will be shocked by the invisible, jural fence erected by the written notice.

Allowing burglary to be committed against a place that is open to the public is false to the phenomenology of stores and other public places. Even if states do not wish to adopt the Model Penal Code’s burglary provisions outright, they should at least include the “unless the premises are at the time open to the public” provision in their statutes.

Some states already include similar language in their statutes but limit or dilute its scope or effect. New York stipulates:

A person who, regardless of his or her intent, enters [remains] in or upon premises which are at the time open to the public does so with license and privilege unless he or she defies a lawful order not to enter [remain], personally communicated to him or her by the owner of such premises or other authorized person.^[160]

The New York Court of Appeals has interpreted defiance of a personally communicated lawful order to include return after receiving a written notice of exclusion.^[161] Thus, despite seeming to exclude repeat shoplifting from the definition of burglary, New York’s statute falls short of the Model Code’s categorical refusal to let burglary be committed against a building open to the public.

Tennessee’s statute strangely disqualifies only one type of burglary from being committed in a place open to the public. It reads in relevant part:

(a) A person commits burglary who, without the effective consent of the property owner:

1. Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;

2. Remains concealed, with the intent to commit a felony, theft or assault, in a building;

3. Enters a building and commits or attempts to commit a felony, theft or assault . . . .^[162]

“Like nothing else in Tennessee,”^[163] the first subsection contains the “not open to the public” qualification. If the legislature in Nashville made this a properly parallel list, prosecutors could no longer charge Wal-Mart burglaries in Tennessee.

V. Objections and Replies

A. Fraught Archetypes?

A critic could argue that similar reasoning to mine could be used to reach an unconscionably regressive conclusion about sexual assault. Like burglary, rape is one of the common law malum in se felonies, and like the definition of burglary, the definition of rape in modern criminal codes is markedly different from that used by the common law judges.^[164] Additionally, the definition of rape or sexual assault in modern criminal codes is arguably out of step with the image of the offense in the popular mind. If the archetypal rapist is a stranger who uses force, then modern sexual assault statutes that do away with the force element and focus on consent are not congruent with the archetype. If legislatures should try to track the popular image of malum in se felonies when they draft penal codes, then, by this logic, sexual assault statutes should be rewritten to focus on the stranger who uses force to overcome resistance.

That conclusion, of course, is an odious and immoral proposal for law “reform.” However, there is good reason to distinguish my call for burglary to better track the popular conception of the offense and a similar demand for sexual assault to match commonplace ideas about rape. To wit, feminist thinkers have adduced a host of moral reasons and policy arguments for why the popular image of sexual assault and the common law definition of rape are misogynistic and inadequate to halting sexual violence and punishing its perpetrators.^[165] Concomitantly, feminist activists have struggled for decades to change popular thinking about what a rape looks like and to enact the more accurate picture of sexual assault they have articulated into law. As we will see, no comparable moral struggle, no similar theoretical critique exists with respect to traditional, commonplace ideas about what a burglary looks like and what makes it wrong.

Common law rape was “the carnal knowledge of a woman forcibly and against her will.”^[166] Susan Estrich explained how the force element has limited prosecutions for rape as follows:

Force is required to constitute rape, but force—even force that goes far beyond the physical contact necessary to accomplish penetration—is not itself prohibited. Rather, what is required, and prohibited, is force used to overcome female nonconsent. The prohibition is defined in terms of a woman’s resistance. Thus, “forcible compulsion” becomes the force necessary to overcome reasonable resistance.^[167]

Courts also usually understood “against her will” as a requirement that the victim violently resist her assailant. As LaFave explains, “many courts insisted upon proof of the ‘utmost resistance’ by the victim to show her nonconsent.”^[168] Estrich quotes an illustrative opinion by the Supreme Court of Wisconsin: “Not only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person, and this must be shown to persist until the offense is consummated.”^[169]

Feminist critique of this doctrine revealed its false moral underpinnings and unfairness to women. Estrich critiques the force requirement outlined above as follows:

Such an approach accomplishes two things. First, it ensures broad male freedom to “seduce” women who feel powerless, vulnerable, and afraid; the force standard guarantees men freedom to intimidate women and exploit their weaknesses, as long as they don’t “fight” with them. Second, it makes clear that the responsibility and blame for such seductions belong with the woman. Because the will of a reasonable woman by definition would not have been overcome, a particular woman’s submission can only mean that she is sub-par as women go or that she was complicitous in the intercourse.^[170]

In sum, Estrich knows that the force requirement is used to shift scrutiny from the malfeasance of the defendant to the behavior of the victim and to segregate a class of victims whom the law will protect from a group that it will not defend.

Estrich perceives similar disregard for women behind the rule that a woman must resist to the utmost for the law to register her nonconsent. She explains:

Were the purpose of the consent requirement really to afford autonomy to women, there is no reason why a simple but clearly stated “no” would not suffice to signify nonconsent. Viewing women as autonomous human beings would mean treating them as persons who know what they want and mean what they say. A woman who wanted sex would say yes; a woman who did not would say no, and those verbal signals would be respected.^[171]

This last critique strikes at the heart of the problem with the way the common law distinguished rape from noncriminal sex. The law neglected the true wrong in rape—the quality that makes it so hurtful and evil: the attack on the “dignity and autonomy” of the victim.^[172]

Not only did received doctrine fail to target these interests for protection, but, as reforming scholarship revealed, the founders of the common law had a wholly different goal. The men who wrote the common law on rape devised it to safeguard patriarchal property in women’s sexuality and reproduction. As Alexandra Wald explains, “[P]roscriptions against rape existed, not to protect women’s interests, but to safeguard both the value of women to men and the stability of the marriage market.”^[173]

Just as feminist scholars have subjected criminal law doctrine to a thorough normative and genealogical critique, they have also shown how conventional or “common sense” understandings of rape are false to the variety of circumstances in which a person’s sexual autonomy is violated. The name that they have adopted for the public’s preconceived model of sexual assault is “real rape.”^[174] “The ‘real rape’ stereotype involves ‘an attack by a stranger on an unsuspecting victim in an outdoor location, involving the use or threat of force by the assailant and active physical resistance by the victim.’”^[175] As part of this stereotype, the “real” rape victim is conceived as a sexually pure and modest woman hewing closely to gender norms on dress, drinking, and deportment around men.^[176] Social science research has documented the ubiquity and efficacy of these preconceptions among the folk.^[177]

This archetype of rape does not reflect reality, where most people who are victims of sexual assault are hurt by someone they know.^[178] In these cases of “acquaintance rape,” the attacker usually does not use a weapon or leave large, visible injuries (like cuts or bruises) on the victim.^[179] Moreover, critical hermeneutic work in gender studies reveals that patriarchal attitudes both generate the “real rape” stereotype and incubate the large number of “acquaintance rapes” that do not fit the stereotype.^[180] In brief, our culture’s valorization of men’s dominance, aggression, and objectification of women work together to define the archetype of criminal sex while normalizing and excusing quotidian sexual violence.^[181]

Through long political struggle and insightful critique of the existing law, activists have succeeded in bringing some reforms to the law of sexual assault.^[182] These changes, however, often outpace any shifts in the public’s ready-made notions of rape. For example, contemporary sexual assault statutes recognize that people of any gender can be the victim of sexual assault and that acts other than coitus are also sexual assault.^[183] While this serves to better focus the law of sexual assault on attacks in violation of a person’s autonomy, it does clash with preconceived notions about who can be sexually victimized (cisgender women and girls) and how the victim is harmed (loss of “purity”).^[184]

Similarly, law reform has reduced or eliminated the need to show that the defendant employed force.^[185] For example, many state codes now establish that consent to sexual activity is invalid if it is obtained by “duress or deception,” by taking advantage of the victim’s intoxication, or by using force.^[186] When taken together, these changes not only serve to further center rape law’s protections on a person’s sexual autonomy, but they also recognize the truth that a rapist need not be the cliché “lowlife” with a knife. When the law recognizes that rape can be accomplished with fraud or coercion as well as force, it establishes that a rapist may have an unconventional look: he or she may be a boss or landlord using threats to obtain sex, a partner in a dating relationship who lies about his or her intent to use contraception, or an acquaintance at a drinking party of the same social class as the victim.

Likewise, reformed statutes often abolish the requirement that a victim resisted the assault, physically or otherwise.^[187] For example, the Tennessee legislature deserves credit for establishing that “sexual penetration” is rape when “accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent.”^[188] Again, while this accurately identifies the core wrong in sexual assault, it deviates from waning, but still current, cultural paradigms of sexual assault by acknowledging that sex with a person who has not indicated consent is rape, even when the aggressor is one of the “men most likely to commit date or acquaintance rape, such as a respected man in the community or a friend of the victim.”^[189]

No parallel social movement or scholarly critique—identifying moral blind spots of burglary law or victims of crime left unprotected—stands behind the deviation of modern burglary statutes from the crime’s popular archetype. The expansion of burglary doctrine did not ensue from an outcry to extend the law’s protections to an unshielded, vulnerable population. We do not have a “burglary culture” that refuses to take seriously crime against homeowners, renters, and retailers. No keen, scholarly reader of our culture has exposed tacit tolerance for depredations on homes and businesses or ingrained belief that such aggressions are a natural manifestation of manliness. Accordingly, no activist groups exist to confront and correct mistaken stereotypes about burglars and their victims.

I have argued that it is a problem when a penal code defines a traditional malum in se felony like burglary in a way that departs from the popular archetype of the offense; therefore, I have argued that burglary’s definition should better track the public’s notions of what a burglary is and what makes it wrong. But what is a problem in the case of burglary is not a problem with sexual assault. In the latter case, we know that there are very good reasons why the law must run ahead of culture, for we know that the culture’s archetype of rape is inaccurate, immoral, and pernicious. No one has shown that the culture’s archetype of burglary is inaccurate, immoral, and pernicious.

B. Protecting Retailers?

Prosecutions for Wal-Mart burglaries, abetted by loose burglary statutes like Tennessee’s, do have at least one prima facie benefit: increased deterrence of shoplifting. Adopting the MPC definition of burglary would leave Wal-Mart managers with nothing to do with the repeat shoplifters they catch but turn them over to the police for misdemeanor prosecution.

The common law refused to punish criminals as burglars if their victims did not lock up their houses.^[190] By requiring a breaking, the judges ensured that they would not punish for burglary those who entered a dwelling with doors or windows left open or unlocked. This approach placed responsibility on property owners to safeguard their homes and by extension, the things and people inside them.

Today, far from keeping its goods behind lock and key, Wal‑Mart makes itself vulnerable to theft and fraud by reducing the number of employees walking the floor, replacing cashiers with machines, and removing workers once posted at entrances and exits.^[191] Under these circumstances, police and prosecutors can temper losses by substituting deterrence for security.^[192] However, mere misdemeanor theft charges may be inadequate for this purpose. Thus, “more state legislatures are increasing the penalties for multiple shoplifting offenses, a move that has been encouraged by the National Retail Federation, a trade group that lobbies on behalf of retail businesses.”^[193] Of course, in states like Tennessee, new legislation is not needed; existing law may be applied to transmute the repeat shoplifter into a burglar.

If Wal-Mart is leaning on the law in this way, does that vindicate the crystalized wisdom of experience embodied by the original breaking element? On the other hand, should the law not protect all victims of crime, regardless of whether they made themselves more vulnerable targets? The breaking requirement is a kind of victim blaming: those who choose to leave a window open at night to catch the summer breeze or lucklessly forget to lock their doors cannot ask the law to treat those who wrong them as burglars.

To be sure, innocent choices and feckless omissions should not detract from the victim’s rights, as they do not detract from the culpability of the criminal. We should resist the urge to victim‑blame and not let morally arbitrary characteristics of the victim deprive him or her of equal justice.

At the same time, we are under no obligation to tailor the law to provide sufficient deterrence for anyone, including those retailors who would cast their burdens upon the criminal law. From a consequentialist perspective, the law should provide optimal deterrence, not necessarily sufficient deterrence.^[194] When the cost of additional punishment exceeds the gains to society from crime prevented, society should not spend an additional dollar on imprisonment nor exact one more painful day in prison from the convicted criminal. It may be true that even stiffer penalties could inspire such fear that shoplifting would vanish, but by consequentialist lights, once society’s marginal costs exceed its marginal gains, retailers cannot rightfully demand that society go further to expend the resources and inflict the pain needed to reach that level of deterrence.

From a retributivist perspective, no one has a right to demand that his victimizer be punished more than the victimizer deserves. To do so would be to treat the offender as a mere means to the end of the victim’s safety, or in this case, to the end of saving the victim money on security and staffing for its stores.^[195] As Kant said, “[P]unishment can never be used merely as a means to promote some other good for the criminal himself or for civil society . . . .”^[196] These other goods include the safety of crime victims who have no right to demand that the state do wrong and inflict more hardship and suffering on a person than he or she deserves, even if doing so is necessary to deter future depredations on the same victim.

VI. Conclusion

The law of burglary is a unique cultural relic of the common law. As the members of the American Law Institute recognized, the reasons for retaining it are mostly path-dependent ones. We have been charging people with burglary for centuries, and thanks to the long shadow cast by the law on popular culture, the public regards it as one of the basic crimes that a person can commit. In spite of this, twentieth and twenty-first century state legislatures have transformed burglary into a dissolute, catch-all offense that drastically increases penalties whenever a crime is committed in someone else’s building (“the magic of four walls and a roof”). I have argued accordingly that contemporary statutes should be reformed to better track the popular archetype of burglary.

We have seen that not tracking the archetype creates several costs. A price is paid in excessive sentences when an offense that is assumed to be among the most serious is defined so that it can counterintuitively cover minor wrongs of a different character. The expectations of the public are thwarted; the law is cast in the asinine role of the man who calls a fish a “whale” or a fig a “melon.” And those legislators who only wanted a workable definition of a seemingly obvious crime fail to get what they were after.

A solution is at hand in the Model Penal Code’s burglary provisions. If adopted, these would make impossible the cruel and asinine prosecutions, documented in The Guardian by Jessica Pishko, that inspired this piece. In the absence of strong critiques of conventional wisdom about burglary—comparable to feminist critiques of conventional wisdom about rape—the law should adopt a credible, responsible definition of burglary that comports with popular understandings of what it is and what makes it wrong.

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1. See Jessica Pishko, 12 Years in Jail for Shoplifting: How Walmart Is Helping Prosecutors Hike Up Sentences, Guardian, https://www.theguardian.com/us-news/2018/may/17/walmart-shoplifting-helping-hike-sentences-court [https://perma.cc/EV9V-SDF6] (Oct. 24, 2018, 5:59 AM); State v. Jensen, No. M2016-01553-CCA-R10-CD, 2017 Tenn. Crim. App. LEXIS 763, at *4–7 (Aug. 25, 2017) (quoting a Tennessee prosecutor describing how she learned this practice from her fellows at a meeting of district attorneys in her state), vacated on other grounds, 2017 Tenn. LEXIS 902 (Dec. 8, 2017) (per curiam).

2. See Tenn. Code Ann. § 39-14-402(c) (LEXIS through 2020 Reg. Sess. & Second Extraordinary Sess.) (decreeing this offense “a Class D felony”); id. § 40-35-112 (fixing minimum and maximum prison terms for Class D felonies for different categories of offenders); id. §§ 40-35-105–40-35-109 (defining categories of offenders on the basis of criminal history).

3. Id. § 39-14-402(a)(3). Tennessee attorneys for defendants charged with burglary for repeat shoplifting from the same chain store won a short-lived victory in the Tennessee Court of Criminal Appeals when that court held that the statute was not meant to cover offenses committed in buildings open to the public. Jensen, 2017 Tenn. Crim. App. LEXIS 763, at *29–31. However, last year, the Supreme Court of Tennessee settled the issue against defendants, holding that businesses can be burglarized while open to the public according to the plain meaning of the statutory text. State v. Welch, 595 S.W.3d 615, 623–24 (Tenn. 2020).

4. See generally Helen A. Anderson, From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629, 647–49 (2012).

5. Id. at 631, 642, 647–48.

6. See, e.g., Tex. Penal Code Ann. §30.02(a)(3).

7. See, e.g., State v. Kutch, 951 P.2d 1139, 1140–42 (Wash. Ct. App. 1998); People v. Ramnarain, 861 N.Y.S.2d 6, 8 (App. Div. 2008); State v. Acevedo, 315 P.3d 261, 264, 272 (Kan. Ct. App. 2013); State v. Proby, 437 S.W.3d 375, 376–77 (Mo. Ct. App. 2014).

8. See Clark v. Arizona, 548 U.S. 735, 746, 749–52 (2006) (“[T]he conceptualization of criminal offenses, is substantially open to state choice.”).

9. See Frank J. Parker, Aspects of Merger in the Law of Kidnapping, 55 Cornell L. Rev. 527, 528–30 (1970) (chronicling the New York court’s path in kidnapping cases).

10. People v. Levy, 204 N.E.2d 842, 844 (N.Y. 1965).

11. Jonathan Harwell, Burglary at Wal-Mart: Innovative Prosecutions of Banned Shoplifters Under Tenn. Code Ann. §39-14-402, 11 Tenn. J.L. & Pol’y 81, 88 (2016). Mr. Harwell represented clients charged with what he calls “Wal-Mart Burglaries” as a public defender. Id.; see Jamie Satterfield, Knox Prosecutors ‘Walmart Burglary’ Policy Draws State Supreme Court Review, Knox News, https://www.knoxnews.com/story/news/crime/2019/05/27/walmart-burglary-legal-tennessee-supreme-court-decide-charme-allen/3770402002/ [https://perma.cc/Q2ZV-B6GG] (May 28, 2019, 10:04 AM). His article is a valuable source of firsthand information on this prosecutorial practice in Tennessee.

12. Cf. Plato, Laches and Charmides 37 (Rosamond Kent Sprague trans., Hackett Publ’g Co. 1992) (“[A]nd I am really getting annoyed at being unable to express what I think in this fashion. I still think I know what courage is, but I can’t understand how it has escaped me just now so that I can’t pin it down in words and say what it is.” (footnote omitted)).

13. Levy, 204 N.E.2d at 844.

14. See Model Penal Code and Comments. § 221 introductory note (Am. L. Inst., Official Draft & Revised Comments 1980).

15. See id. §221 introductory note, § 221.1.

16. See id. §221.1 cmts. 1–2 (“It may be, therefore, that burglary could be eliminated as a distinct offense and the issues that are raised could be pursued as a grading matter, perhaps with the addition of a relatively minor criminal trespass provision to take account of the less serious cases.”).

17. See id. § 221 introductory note.

18. See id. (explaining that the model was included out of “deference to the momentum of historical tradition” and “a considered judgment that especially severe sanctions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants”).

19. See infra Sections I.B–C.

20. See § 221.1 cmt. 1.

21. Wayne R. LaFave, Criminal Law § 21.1 (LEG, Inc. 6th ed. 2017).

22. See Minturn T. Wright III, Note, Statutory Burglary—The Magic of Four Walls and a Roof, 100 U. Pa. L. Rev. 411, 411, 414 (1951) (“It was not that the common law courts were blind to the fact that certain types of conduct were as deserving of punishment . . . . Their awareness of this was the very stimulus to the extensions they made . . . .”).

23. Id. at 411–12.

24. LaFave, supra note 21, § 21.1(a).

25. See Note, A Rationale of the Law of Burglary, 51 Colum. L. Rev. 1009, 1016 (1951) (“When a breaking is required, the commission of the crime provides at least prima facie proof of the existence of intent at the time of entry.”). It is worth noting too that judges may have been reluctant to bring the law’s sanguinary punishments to help the householder who would not help himself by shutting his windows and locking his doors. “Aide-toi et le droit t’aidera,” they could have said. See LaFave, supra note 21, § 21.1(a), at 1339 (“If the occupant of the dwelling had created the opening, it was felt that he had not entitled himself to the protection of the law, as he had not properly secured his dwelling.”). This Article will have more to say about this reluctance to help certain victims in a later section assessing the wisdom of adhering to hoary definitions of crimes that appear to shift blame to victims.

26. See Model Penal Code and Comments. §221.1 cmt. 3(a)(Am. L. Inst., Official Draft & Revised Comments 1980).

27. See, e.g., Tex. Penal Code Ann. § 30.02(a); see Model Penal Code and Comments § 221.1 cmt. 3(a).

28. See Anderson, supra note 4, at 634–35 (“Throughout the nineteenth century ‘[t]he concept of the common-law crime was in retreat.’” (alteration in original) (quoting Lawrence M. Friedman, Crime and Punishment in American History 65 (1993))).

29. See Wright, supra note 22, at 411, 414–24; Note, supra note 25, at 1009–19.

30. Note, supra note 25, at 1014.

31. Wright, supra note 22, at 416.

32. See id. at 416 & n.44 (collecting cases).

33. See Note, supra note 25, at 1013.

34. See id. at 1013–14 (“It seems clear that any attempt to differentiate behavior on the basis of the concept of breaking must result in a tangle of incongruous distinctions . . . . Retention of the requirement of breaking seems irrational, whatever the purpose of burglary law may be.”).

35. See id. at 1014.

36. See id. at 1014 & n.35 (collecting cases).

37. See Anderson, supra note 4, at 644 (“The use of force to gain entry is no longer an essential aspect of burglary.”).

38. Note, supra note 25, at 1013.

39. See id. at 1015–16.

40. Id.

41. See id.

42. Id. at 1011.

43. See Wright, supra note 22, at 417–18.

44. Neb. Rev. Stat. § 28-532 (1948).

45. See Wright, supra note 22, at 418 & n.59.

46. See id. at 439; cf. Anderson, supra note 4, at 658 (referring to burglary as a “location aggravator”).

47. Wright, supra note 22, at 439.

48. Id. at 411.

49. See id. at 445 (“In any case, we are today governed by statutes that do one thing, on the basis that they are doing another . . . .”).

50. See id. at 444–45.

51. See id. (“If anyone possessed such realization, it was the common law judges and text-writers . . . .”).

52. See To Catch a Thief, Paramount Movies, https://www.paramountmovies.com/movies/to-catch-a-thief [https://perma.cc/TT77-LS74] (last visited Apr. 2, 2021).

53. Wright, supra note 22, at 444.

54. See Anderson, supra note 4, at 663–66 (“Despite the significant evolution of burglary from Lord Coke’s common law definition . . . the common law notion of burglary still exerts a powerful influence on the legal imagination.”); Note, supra note 25, at 1009 n.3.

55. I have in mind here H.L.A. Hart’s theory that, quite apart from whether law needs to be moral to be law, there are certain restraints on conduct that every society complex enough to have a legal system must incorporate into its legal system if cooperation by creatures with humanity’s special set of biological needs and vulnerabilities is to be sustained. See H.L.A. Hart, The Concept of Law 192–93 (2d ed. 1994). “The general form of the argument is simply that without such a content laws and morals could not forward the minimum purpose of survival which men have in associating with each other.” Id. at 193.

56. See Wright, supra note 22, at 424; see also Model Penal Code and Comments. § 221.1 cmt. 2 (Am. L. Inst., Official Draft & Revised Comments 1980) (“It is noteworthy that the civil-law countries know of no such offense, being content to penalize crimes involving intrusion by adding a minor term of imprisonment for criminal trespass to the appropriate sentence for the other crime committed or attempted.”).

57. Wright, supra note 22, at 424.

58. §§ 221.1–221.2.

59. Id. § 221.1(1).

60. Id. § 221.1(2).

61. Id.

62. See id. § 221.0(1).

63. See id. §§ 221.1–221.2 (making burglary at least a felony and criminal trespass at most a misdemeanor); LaFave, supra note 21, § 21.2, at 1355 (explaining that a separate criminal trespass provision can simply serve to vindicate property rights or related privacy rights involved in ownership of land and buildings).

64. § 221.2(1).

65. See id. § 221.2 cmt. 1. This exasperation was evident in the law review notes on mid-century burglary law considered above. See Wright, supra note 22, at 415; Note, supra note 25, at 1009–10, 1024. Indeed, both notes are listed as critical bibliography for descrying the landscape of burglary law at the time of the Code’s drafting. § 221.1 cmt. 1 n.1.

66. See § 221.1 cmt. 1.

67. Id.

68. See id. (“The surface logic of this solution, however, tended to obscure the anomalies introduced by later expansion of the burglary concept to include non-dangerous situations and new target offenses, especially when concomitant adjustments in the penalty structure were not made.”).

69. See id. (“[E]xpansion of the offense of burglary provided a partial solution to these problems. Making entry with criminal intent an independent substantive offense carrying serious sanctions moved back the moment when the law could intervene in a criminal design and authorized penalties more nearly in accord with the seriousness of the actor’s conduct.”); supra note 50 and accompanying text.

70. See § 221.1 cmt. 1.

71. See id.

72. See id.

73. See supra notes 16, 69 and accompanying text.

74. See §§ 221.0–221.1.

75. See Susan Bundy Cocke, Reformation of Burglary, 11 Wm. & Mary L. Rev. 211, 211–13 (1969).

76. § 221.1 cmts. 3(b), 4(a)(i).

77. Id. § 221.1(2).

78. Model Penal Code and Comments. § 6.06 (Am. L. Inst., Official Draft & Revised Comments 1985). Note, however, that the MPC suggests higher sentences for repeat offenders, professional criminals, etc. See id. §§ 6.07 explanatory note, 7.03.

79. See Model Penal Code and Comments. § 221.1(2) (Am. L. Inst., Official Draft & Revised Comments 1980).

80. See id. § 221.1(1) (defining burglary to include all buildings).

81. See id. §§ 221.0–221.1(1) (limiting burglary to buildings and occupied structures and defining “occupied structure” to mean “any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present”).

82. But cf. Sara L. Ochs, Comment, Can Louisiana’s Self-Defense Law Stand Its Ground?: Improving the Stand Your Ground Law in the Murder Capital of America, 59 Loy. L. Rev. 673, 676 & n.20 (2013) (describing recent deviations from the common law in Louisiana and Florida that expand the special privilege to use deadly force in self-defense at home—the “Castle Doctrine”—to a self-defender’s car); J.P. Neyland, Comment, A Man’s Car Is His Castle: The Expansion of Texas’ “Castle Doctrine” Eliminating the Duty to Retreat in Areas Outside the Home, 60 Baylor L. Rev. 719, 733–34 (2008) (noting the same development in Texas). These developments bespeak a belief that a driver’s car is a refuge that he or she is entitled to protect with deadly force. This is unsurprising given American car culture, in which the private car is the driver’s shelter in an otherwise hostile urban environment. See, e.g., Colonial Dodge, Inc. v. Miller, 362 N.W.2d 704, 706–07 (Mich. 1984) (“Mr. Miller testified that he was afraid of a tire going flat on a Detroit freeway at 3 a.m. Without a spare, he testified, he would be helpless until morning business hours. The dangers attendant upon a stranded motorist are common knowledge, and Mr. Miller’s fears are not unreasonable.”). Nonetheless, this rationale best supports giving special protection to assaults on those in presently occupied vehicles and weakens in the case of unoccupied ones. Granting all due allowance to the feeling of familiarity, comfort, and security many Americans associate with the interior of their automobiles, the car remains a tool of public rather than private life. Cf. King v. State, 96 So. 636, 639 (Ala. Ct. App. 1923) (“The immunity from retreat, which under the law is applicable to a man’s home, does not apply to a public road.”). Furthermore, there is an intuitive distinction between a person’s car and her home—a distinction evident in the Code’s recognition that it is the exceptional vehicle that should count as an “occupied structure.” See §§ 221.0–221.1(1). As such, there is no reason that any special protection for cars needs to take the form of an expansion of burglary law.

83. § 221.1(2).

84. Id.

85. Id. § 221.1 cmt. 4(a)(i).

86. Id. § 221.1 cmt. 3(a).

87. See supra notes 22–24 and accompanying text.

88. See supra note 35 and accompanying text.

89. § 221.1(1).

90. Id. § 221.1 cmt. 3(a) (footnote omitted).

91. See Pishko, supra note 1.

92. § 221.1(1).

93. See LaFave, supra note 21, § 21.1(e), 1351. There are some occasions on which failure to restrict burglary to entry with intent to commit a felony could precipitate injustice. There are times when someone could enter a building, or even a dwelling, with intent to commit a misdemeanor without deserving to be treated as a burglar. A young person looking to graffiti her school or a cousin who sneaks into his relatives’ house to take a contested family picture album both are examples of people who unlawfully enter a closed building with criminal intent but whose intrusion does not “create the greatest alarm and invoke the most justifiable claims to privacy.” Model Penal Code and Comments. § 221.1 cmt. 4(a)(i) (Am. L. Inst., Official Draft & Revised Comments 1980). Shaving off misdemeanors from burglary’s definition could produce more intuitive and just results in these cases. Cf., e.g., Tex. Penal Code Ann. § 30.02 (a)(1) (making it burglary if a person “enters a habitation, or a building . . . with intent to commit a felony, theft, or an assault”). On the other hand, “the gist of the offense is the unlawful intrusion into occupied structures and the accompanying terrorization of the occupants.” § 221.1 cmt. 4. Consequently, “the extent of the alarm felt by the occupant will be more a function of the occupant’s fears as to what might happen than the intruder’s actual intentions.” Id. It follows that the intent to commit a crime is more important than the gravity of the intended crime as the function of this element is to separate menacing from innocent intruders. Nonetheless, the examples above show how an intruder who intends to commit a misdemeanor may be less menacing than one who intends to commit a felony.

94. Anderson, supra note 4, at 645.

95. LaFave, supra note 21, § 21.1(e), 1352; see, e.g., Minn. Stat. § 609.582(1), Tenn. Code Ann. § 39-14-402(a)(3), Tex. Penal Code Ann. § 30.02(a)(3).

96. Tex. Penal Code Ann. § 30.02(a)(3).

97. See Anderson, supra note 4, at 642, 645–46.

98. See id. at 642 n.98 (citing Gerard E. Lynch, Towards a Model Penal Code, Second (Federal?): The Challenge of the Special Part, 2 Buff. Crim. L. Rev. 297, 299 (1998)).

99. Compare supra notes 81–83 and accompanying text (explaining the Model Penal Code’s treatment of nighttime burglary), with supra notes 36–39 and accompanying text (describing states’ sanctioning of burglaries committed during the daytime).

100. Anderson , supra note 4, at 642–43.

101. LaFave, supra note 21, § 21.1(a), at 1340, 1342.

102. Anderson, supra note 4, at 644 & n.105.

103. Id. at 642.

104. See supra notes 42–45 and accompanying text.

105. Anderson, supra note 4, at 645–46.

106. Id. at 646 & n.119 (collecting cases).

107. LaFave, supra note 21, § 21.1(b), at 1345 (footnotes omitted).

108. Id. § 21.1(e), at 1352; see, e.g., Mich. Comp. Laws § 750.110(2); Minn. Stat. § 609.582(1); Tenn. Code Ann. § 39-14-402(a)(3); Tex. Penal Code Ann. § 30.02(a)(3).

109. When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.

     People v. Hood, 462 P.2d 370, 378 (Cal. 1969). I am indebted for this reference to an article by Eric Johnson. See Eric A. Johnson, Understanding General and Specific Intent: Eight Things I Know for Sure, 13 Ohio St. J. Crim. L. 521, 521 (2016).

110. See supra note 70 and accompanying text.

111. Beth DeCarbo, The Ups and Downs of Having a Home Garage, Wall St. J. (July 18, 2019, 5:30 AM), https://www.wsj.com/articles/the-ups-and-downs-of-having-a-home-garage-11563442200 [https://perma.cc/7KL9-PLKN].

112. Peter Funt, Opinion, Burglars Are Following You on Facebook, Wall St. J. (Sept. 11, 2019, 7:23 PM), https://www.wsj.com/articles/burglars-are-following-you-on-facebook-11568244205 [https://perma.cc/86AX-Y4BE].

113. Ellen Gamerman, The Dying Art of Burglary, Wall St. J. (Mar. 31, 2016, 1:10 PM), https://www.wsj.com/articles/the-dying-art-of-burglary-1459444214 [https://perma.cc/6MQA-N4U3].

114. Id.

115. Alfred E. Lewis, 5 Held in Plot to Bug Democrats’ Office Here, Wash. Post (June 18, 1972), https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/061872-1.htm [https://perma.cc/884Y-EDPS].

116. Ellen Gamerman, 5 Essential Heist Movies, Wall St. J. (Apr. 1, 2016, 4:00 PM), https://www.wsj.com/articles/BL-SEB-94304 [https://perma.cc/56RB-HCV5].

117. Gamerman, supra note 113.

118. G.E.M. Anscombe, Modern Moral Philosophy, Philosophy, Jan. 1958, at 1–2.

119. Essentially, there would be a single offense called “crime” that was massively disjunctive.

120. For example, suppose one person steals a diamond bracelet worth $15,000 from a Dallas dowager’s purse and another person threatens to strike a Houston heir to get him to hand over an identical bracelet from around his wrist. Texas generally defines theft of property worth less than $30,000 as a “state jail felony.” Tex. Penal Code Ann. § 31.03(e)(4). The maximum jail sentence a court may impose for crimes that fall under this heading is two years and the minimum possible jail sentence is 180 days. Id. § 12.35(a). In contrast, robbery (regardless of the value of the property) is punishable as a second-degree felony. Id. § 29.02. The maximum sentence for a second-degree felony is twenty years and the minimum sentence is two years. Id. § 12.33(a).

121. E.g., Tex. Code Crim. Proc. Ann. art. 37.07, § 2(a)–(b) (explaining how a trial is divided into a “guilt or innocence” phase and a punishment phase).

122. E.g., id. § 3(a)(1) (“Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried . . . .”); U.S. Sent’g Guidelines Manual § 3A1.1 (U.S. Sent’g Comm’n 2018) (“If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels.”).

123. R.A. Duff, Mercy, in The Oxford Handbook of Philosophy of Criminal Law 467, 481–82 (John Deigh & David Dolinko eds., 2011).

124. Id.

125. Tenn. Code Ann. § 39-14-402(a)(1), (3).

126. Model Penal Code and Comments. § 221.1 cmt. 1 (Am. L. Inst., Official Draft & Revised Comments 1980).

127. See id. (citing Marvin E. Wolfgang, Uniform Crime Reports: A Critical Appraisal, 111 U. Pa. L. Rev. 708 (1963)).

128. See discussion supra Part I (discussing an example of a trivial prosecution for a burglary at Wal-Mart).

129. See generally Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law 6 (2009) (explaining that retributivism “considers an actor deserving of punishment when he violates these norms that forbid the unjustified harming of, or risking harm to, others – that is, failing to give others’ interests their proper weight”).

130. See generally Plato, Gorgias 54 (Robin Waterfield trans., Oxford Univ. Press 1994) (sketching a theory that the purpose of punishment is character reformation).

131. See Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413, 425 (1999) (“According to deterrence theory, society should punish if, and to the extent that, doing so maximizes social welfare.”).

132. See, e.g., Model Penal Code and Comments. § 6.01 cmt. 2 (Am. L. Inst., Official Draft & Revised Comments 1985) (“[T]he desirability of severely limiting the possible range of sentencing categories bears no necessary relationship to a particular approach to sentencing. . . . It is, in short, a desirable, indeed necessary reform as an element of the implementation of any rational approach to sentencing.”).

133. Tex. Penal Code Ann. § 12.21(2).

134. Id. § 12.35(a).

135. See supra note 2 and accompanying text.

136. Tenn. Code Ann. §§ 39-14-105(a)(1), 40-35-111(e)(1).

137. See Andrew Katbi, Note, Crossing the Line: An Analysis of Problems with Classifying Recidivist Misdemeanor Offenses as Felonies, 31 Alaska L. Rev. 105, 117 (2014) (“[S]hifting between a misdemeanor and a felony brings about not only increased incarceration, but new felony collateral consequences.”). But see Paul T. Crane, Charging on the Margin, 57 Wm. & Mary L. Rev. 775, 778 (2016) (“[L]egislatures have increasingly attached severe collateral consequences to misdemeanor offenses—consequences that formerly were triggered only by felonies.”).

138. See Kevin Bennardo, Rethinking Victim-Based Statutory Sentencing Enhancements, 44 Fla. St. U. L. Rev. 1, 32–33 (2016) (“Enhancing an offender’s punishment from a misdemeanor to a felony carries significant consequences, including a severe stigma and potentially a lifetime of difficulty securing employment and housing.”); C. William Ralston, An Act of Criminal “Skullduggery”?: A Critical Analysis of the Circuit Split Resolved in United States v. Abuelhawa, 112 W. Va. L. Rev. 1023, 1043–44 (2010); Margaret Love & David Schlussel, Collateral Consequences Res. Ctr., The Many Roads to Reintegration 18–19 (2020).

139. Lafler v. Cooper, 566 U.S. 156, 170 (2012).

140. Missouri v. Frye, 566 U.S. 134, 144 (2012) (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992)).

141. Thea Johnson, Fictional Pleas, 94 Ind. L.J. 855, 894 (2019).

142. See Kyle Graham, Overcharging, 11 Ohio St. J. Crim. L. 701, 703–04 (2014).

143. Andrew Ingram, Pinkerton Short-Circuits the Model Penal Code, 64 Vill. L. Rev. 71, 86 (2019).

144. See Carlos Berdejó, Criminalizing Race: Racial Disparities in Plea-Bargaining, 59 B.C. L. Rev. 1187, 1191, 1215–16 (2018) (“[R]acial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies relative to cases involving more severe offenses.”).

145. See, e.g., Maimon Schwarzschild, Keeping It Private, 44 San Diego L. Rev. 677, 686 (2007) (“[P]redictability ranks fairly high among the legal virtues. It is part of what people mean by the Rule of Law.”).

146. Jeremy Waldron, The Rule of Law in Contemporary Liberal Theory, 2 Ratio Juris 79, 84 (1989).

147. See Gary Goodpaster, Law Reform in Developing Countries, 13 Transnat’l L. & Contemp. Probs. 659, 673–74 (2003) (“The fact that the laws reflect relevant community understandings together with the existence of potential authoritative, rule-based, independent, and neutral official decision-making . . . makes the system effective, predictable, and reliable . . . .” (emphasis added)).

148. Charles Dickens, Oliver Twist 436 (Philip Horne ed., Penguin Books 2002) (1837–38).

149. See, e.g., Julie A. Robinson, Judicial Independence: The Need for Education About the Role of the Judiciary, 46 Washburn L.J. 535, 542 (2007) (“The Rule of Law embodied in common law provides the reliability, predictability, and equity that satisfies our fundamental desire for fairness.”); Jeremy Waldron, The Rule of Law, in Stan. Encyclopedia Phil. (June 22, 2016), https://plato.stanford.edu/entries/rule-of-law/ [https://perma.cc/M6FJ-HJPZ] (“So this thin version of legality does still have moral significance in the respect it pays to the human need for clarity and predictability.”).

150. See, e.g., Note, supra note 25, at 1013–14 (describing the byzantine distinctions formed in caselaw around the common law “breaking” element in burglary).

151. Id. at 1012–13.

152. Cf. Plato, Five Dialogues: Euthyphro, Apology, Crito, Meno, Phaedo 14 (G.M.A. Grube trans., Hackett Publ’g Co. 2d ed. 2002) (“But Socrates, I have no way of telling you what I have in mind, for whatever proposition we put forward goes around and refuses to stay put where we establish it.”).

153. Cf. Plato: Complete Works 879 (John M. Cooper ed., Hackett Publ’g Co. 1997) (“I have made many speeches about virtue before large audiences on a thousand occasions, very good speeches as I thought, but now I cannot even say what it is.”).

154. Model Penal Code and Comments. § 221.1 (Am. L. Inst., Official Draft & Revised Comments 1980).

155. Id. § 221.0.

156. See id. § 221.1(2).

157. Id. § 221.1(1).

158. Id.

159. Matthew 6:19 (King James).

160. N.Y. Penal Law § 140.00(5) (2013) (alterations in original). Alabama, Arkansas, Colorado, Delaware, Hawaii, and Missouri also use this language. Ala. Code § 13A-7-1(3) (2015 & Supp. 2020); Ark. Code Ann. § 5-39-101(3)(B)(i); Colo. Rev. Stat. § 18-4-201(3); Del. Code Ann. tit. 11, § 829(e); Haw. Rev. Stat. § 708-800 (2014); Mo. Ann. Stat. § 569.010(2) (West 2016 & Supp. 2020).

161. See People v. Leonard, 465 N.E.2d 831, 834 (N.Y. 1984) (“A reasonable and practicable means of effectuating that policy could be to advise an individual that, due to past conduct, he or she is no longer welcome on the campus and will be subject to arrest for trespassing upon return.”).

162. Tenn. Code Ann. § 39-14-402(a). The strange incongruence between the three provisions may be traceable to an oversight in the history of the text’s adoption. Tennessee volunteered this language from the Texas Penal Code. See Harwell, supra note 11, at 100–02. In an early draft of the Texas committee’s work on the burglary section of its penal code, the “not open to the public” language was included as part of all three subsections. Id. at 89–90. Without comment from the committee, a later draft lost this parallelism and restricted the clause to the first subsection (entering with intent to commit a felony). Id. at 94–95, 98. Indeed, the committee’s discussion focused on whether the third subsection was even needed, with its proponents arguing that it could save prosecutors the trouble of proving intent at time of entry. Id. at 98. The first time the legislature considered the committee’s work, the parallel language returned to each of the three subsections. Id. at 99. However, when the legislature finally enacted the committee’s proposal into law several years later, the clause was restricted to the first subsection. See id. at 95, 99.

163. Wallace Stevens, Harmonium 112 (photo. reprt. 1975) (1923).

164. See infra text accompanying notes 166, 168–69, 183, 187–89 (discussing the various departures in modern codes from the common law definition of rape).

165. See infra text accompanying notes 167–72.

166. LaFave, supra note 21, § 17.1, at 1119.

167. Susan Estrich, Rape, 95 Yale L.J. 1087, 1107 (1986).

168. LaFave, supra note 21, § 17.4(a), at 1148.

169. Estrich, supra note 167, at 1123 (quoting Brown v. State, 106 N.W. 536, 538 (Wis. 1906)).

170. Id. at 1118.

171. Id. at 1127.

172. Id. at 1105–06.

173. Alexandra Wald, What’s Rightfully Ours: Toward a Property Theory of Rape, 30 Colum. J.L. & Soc. Probs. 459, 488 (1997).

174. Elisabeth McDonald, And Still We Must Talk About "Real Rape," 29 Pace L. Rev. 349, 356 (2009) (reviewing Jennifer Temkin & Barbara Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (2008)).

175. Id. (quoting Jennifer Temkin & Barbara Krahé, Sexual Assault and the Justice Gap: A Question of Attitude 31 (2008)).

176. Cf. Meagen M. Hildebrand & Cynthia J. Najdowski, The Potential Impact of Rape Culture on Juror Decision Making: Implications for Wrongful Acquittals in Sexual Assault Trials, 78 Alb. L. Rev. 1059, 1063–64 (2015).

177. Id. at 1064 & n.32 (collecting studies).

178. See Martha R. Burt, Rape Myths and Acquaintance Rape, in Acquaintance Rape: The Hidden Crime 26, 27 (Andrea Parrot & Laurie Bechhofer eds., 1991).

179. Elizabeth A. Pendo, Recognizing Violence Against Women: Gender and the Hate Crimes Statistics Act, 17 Harv. Women’s L.J. 157, 170 n.69 (1994) (citing Laurie Bechhofer & Andrea Parrot, What Is Acquaintance Rape?, in Acquaintance Rape: The Hidden Crime, supra note 178, at 1, 10–11).

180. See generally Annaleigh E. Curtis, Due Process Demands as Propaganda: The Rhetoric of Title IX Opposition, 29 Yale J.L. & Humans. 273, 278–80 (2017) (presenting “rape myths” and “objectification” as two aspects of “rape culture”).

181. See Stephan Wah, Note, “Boys Will Be Boys, and Girls Will Get Raped”: How Public School Dress Codes Foster Modern Day Rape Culture, 23 Cardozo J.L. & Gender 245, 251–52 (2016).

     [P]atriarchy, the unchallenged power and prominence of male success and importance is “natural” while females are objects meant to conform to the standards established by men. Living in a world where the “male gaze” is the lens through which we operate, fosters the inequality that plagues our society contributing to rape culture.

     Id. (footnotes omitted).

182. See, e.g., Allegra M. McLeod, Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform, 102 Calif. L. Rev. 1553, 1554 (2014) (“[R]ape law reform is widely celebrated as an important feminist success . . . .”); Kristin Bumiller, In an Abusive State: How Neoliberalism Appropriated the Feminist Movement Against Sexual Violence 1–3 (2008) (“For almost forty years a concerted campaign by feminists has transformed popular consciousness and led to the widespread growth of organizations designed to address the problem of sexual violence.”). It must be remembered, however, that these are imperfect and scattered victories. See Victoria Nourse, The “Normal” Successes and Failures of Feminism and the Criminal Law, 75 Chi.-Kent L. Rev. 951, 951, 953–54 (2000) (“To write of feminist reform in the criminal law is to write of simultaneous success and failure.”). “Many believe, for example, that feminist reforms have rid rape law of the resistance requirement; however, recent scholarship makes it clear that the resistance requirement has not disappeared.” Id. at 951.

183. E.g., Tex. Penal Code Ann. § 22.011(a)(1)(A)–(C).

184. See Wald, supra note 173, at 488.

185. LaFave, supra note 21, § 17.1(c), at 1123 (“There is a trend toward recognition of a broader range of impositions as a basis for finding coercive conduct by the defendant, including other types of fraud and also certain nonphysical coercion.”).

186. E.g., Ala. Code § 13A-2-7(c) (2015).

187. LaFave, supra note 21, §§ 17.1(c), 17.4(a), at 1123, 1150 (“The requirements regarding physical resistance manifesting nonconsent have been lessened in some jurisdictions, while elsewhere there is movement toward more ready recognition that verbal resistance (if not absence of affirmative consent) should suffice.”).

188. Tenn. Code Ann. § 39-13-503(a)(2).

189. Deborah Gartzke Goolsby, Note, Using Mediation in Cases of Simple Rape, 47 Wash. & Lee L. Rev. 1183, 1189 (1990).

190. See LaFave, supra note 21, § 21.1(a), at 1339 (“If the occupant of the dwelling had created the opening, it was felt that he had not entitled himself to the protection of the law, as he had not properly secured his dwelling.”).

191. “There’s nothing inevitable about the level of crime at Walmart. It’s the direct, if unintended, result of corporate policy. Beginning as far back as 2000, when former CEO Lee Scott took over, an aggressive cost-cutting crusade led many stores to deteriorate. The famed greeters were removed, taking away a deterrent to theft at the porous entrances and exits. Self-checkout scanners replaced many cashiers. Walmart added stores faster than it hired employees. The company has one worker for every 524 square feet of retail space, a 19 percent increase in space per employee from a decade ago.” Shannon Pettypiece & David Voreacos, Walmart’s Out-of-Control Crime Problem Is Driving Police Crazy, Bloomberg Businessweek (Aug. 17, 2016), https://www.bloomberg.com/features/2016-walmart-crime/ [https://perma.cc/6BBZ-LV6Z].

192. See Pishko, supra note 1 (“Walmart, in particular, has come under fire in the past for hiring too few employees (a cost-cutting measure), and then relying heavily on publicly funded local police to handle their shoplifting problem.”).

193. Id.

194. See, e.g., Kevin Cole, Killings During Crime: Toward a Discriminating Theory of Strict Liability, 28 Am. Crim. L. Rev. 73, 88 (1990) (“[I]f less serious penalties can be expected to achieve optimal deterrence . . . a consequentialist should seek to minimize the social cost of punishment by supporting less severe penalties . . . .”).

195. Cf. Immanuel Kant, Foundations of the Metaphysics of Morals, in Foundations of the Metaphysics of Morals and What Is Enlightenment? 3, 46 (Lewis White Beck trans., Prentice-Hall Inc. 2d ed. rev. 1997) (1785) (“Act so that you treat humanity, whether in your own person or that of another, always as an end and never as a means only.”).

196. Immanuel Kant, The Metaphysical Elements of Justice 100 (John Ladd trans., 1965) (1797) (emphasis added).