Burglary

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BURGLARY

Burglary is a criminal offense that may be generally described as the unauthorized entry of a dwelling (or another delineated building) with the intent to commit a crime therein. Every jurisdiction has its own precise statutory definition of the crime of burglary, with corresponding case law to carve out the limits and meanings of that particular definition. One will immediately notice that the crime of burglary is not dependent upon the success of the unauthorized entrant intending to commit a crime. The mere intent to commit a crime (when added to the other elements) is sufficient to constitute violation of a burglary statute. This is not to be confused with larceny, which involves the actual taking of property. The entry may occur by the use of force, such as breaking a door or window, or may occur by simply walking through an open doorway, as long as the person entering has no right to be present.

Origins of the offense

Modern burglary statutes are the result of a long evolution from the early burglary laws found in England. The crime of burglary was one of the earliest of laws that was reduced to writing in Anglo-Saxon jurisprudence. Burglary probably dates back in relation to the ancient Anglo-Saxon crime of "hamsoaken" ("hamesecken"), or housebreaking. William Blackstone describes burglary as "nocturnal housebreaking," and descendant from ancient law (p. 958). The early laws reflect the age-old maxim that "a man's home is his castle." Indeed, the legal systems of many different countries have historically contained laws to punish those who would invade or tamper with another's home. This was seen as a particularly violent and punishable act, both because of the element of personal danger likely to be involved in breaking into another's home, and also because it was a crime against the home itself, which has a sanctified place in many human cultures. There were strict definitions as to what constituted a house and what time of day was sufficient to be called nighttime in order to satisfy a burglary charge.

Burglary was defined in the common law as breaking and entering into a dwelling house belonging to another, at night, with the intent to commit a felony therein. If the dwelling was open so that no "breaking" was necessary to enter, there could be no burglary. Entering a dwelling was satisfied if the perpetrator merely reached his arm through a window—the focus being on the intrusion to the home itself rather than the body position of the perpetrator. The definition of a dwelling house was often extended to include appurtenances nearby. English common law had precise definitions as to what was night and what was daytime, but no American jurisdiction has followed this approach.

Modern statutory scheme

The old common law requirement of a "breaking" is rarely found in modern statutes. Instead there is often found such language as "unauthorized entry" or "unlawful entry." There may also be varying degrees of burglary (first degree, second degree, and so on) depending on the level of seriousness. States have expanded the scope of burglary so that the crime intended by the entrant may not necessarily need to be classified as a felony for the elements of burglary to be met.

As noted above, only the intent to commit a crime, not the success in completing it, is required to make out the elements of burglary. One might note that the proximity to success that is accomplished by the burglar is not taken into account by the statutory schemes. Therefore, it can be said that the intent to commit a crime found in the burglary definition is a somewhat more relaxed standard than the standard used to define an attempt to commit a crime (itself punishable in other criminal situations), the latter generally being defined by the actor's steps taken to effectuate the act and his proximity to the completion thereof. A burglar is guilty of burglary the moment he unlawfully enters a building intending to commit a crime. Whether he makes it one step into the building or actually completes the crime does not alter his guilt for the burglary statutes.

Under many statutes a burglar may be subject to two punishments if he or she completes the intended act. A perpetrator may be punished for both burglary and the crime committed therein. Under ordinary attempt law, the attempt is only punished when the crime remained incomplete.

Because modern statutory schemes have expanded the old common law element of a home to include a structure or building, critics have noted that the law of burglary has so far evolved from its modern origins that the original rationales for this cause of action no longer apply. Nevertheless, burglary is a widely recognized crime in modern American culture, and is clearly an offense that will remain cognizable by legal authorities.

Current trends in America

In 1996 the average maximum sentence for those receiving incarceration for burglary was forty-one months. Twenty-nine percent of all convicted burglars, however, received no jail or prison sentence whatsoever, receiving instead probation.

Burglary rates have been dropping significantly in the last twenty years. According to the Federal Bureau of Investigation, the amount of burglaries being committed per capita in the United States has declined by over one third since the late 1970s (measuring the number of "household" burglaries). Nevertheless, the Department of Justice reports that in 1998 alone there were 4.1 million "household" burglaries in the United States.

Another survey reports that in 1996 more burglaries occurred during daylight hours than at night, and overwhelmingly in urban settings. Additionally, burglaries represented only 1 percent of all felony convictions nationwide (Statistical Abstract of the United States ).

Charles H. Whitebread

See also Attempt; Theft; Trespass, Criminal.