Thieving and Receiving: Overcriminalizing the Possession of Stolen Property
Stuart P. Green
Rutgers Law School
June 10, 2010
New Criminal Law Review, Forthcoming
Rutgers School of Law-Newark Research Paper No. 071
Historically, Anglo-American law has treated the offense of receiving stolen property in a variety of ways: It has regarded it as no crime at all, subjected it to accessory-after-the-fact liability, and treated it as a free-standing offense, subject, depending on the jurisdiction, to less punishment than theft, the same punishment as theft, or greater punishment than theft. In order to develop an analytical framework for determining which of these various approaches makes the most sense, we need to ask exactly what receiving statutes are meant to censure and deter. From a backward-looking perspective, receivers can be said to perpetuate the wrongful deprivation of the victim owner’s property rights, effected in the first instance by the thief. From a forward-looking perspective, the act of receiving can, at least in some cases, be said to encourage the commission of future thefts by helping to create a ready market for stolen goods. The problem is that the offense in its current statutory formulation reflects only the backward-looking perspective, requiring nothing more than that the offender possess or receive stolen property (knowing that it is stolen), and saying nothing about the future effects of his act. And because perpetuating an owner’s loss of property is a lesser wrong than causing him to lose his property to begin with (or so it will be argued), the receiver deserves less blame and punishment than the thief. Yet many modern statutes subject receiving to at least as much punishment as thieving. In order to avoid such disproportionality, various reforms in the law of receiving are recommended.
Number of Pages in PDF File: 31
Keywords: theft, receiving stolen property, handling, possession, overcriminalization, complicity, recidivism, contraband, Model Penal Code, English Theft Act
JEL Classification: K14
Date posted: June 13, 2010 ; Last revised: August 24, 2010
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