From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law

Burglary began evolving from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. But sometime between the Model Penal Code in 1962 and today, burglary lost its core actus reus, “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached to almost any crime that occurred indoors, and justify a significant additional penalty—even death. Burglary thus functions as a “location aggravator” for other crimes. Paradoxically, it may be the shadow of the common law crime that has obscured the breadth and significance of these changes. Burglary’s long tradition and pedigree give an illusion of solidity to the charge, even when it no longer necessarily describes real criminal conduct beyond the target offense. This is the first survey of burglary in the United States since the Model Penal Code. It begins with a summary of burglary’s history from the common law definition through the first two centuries of the republic, then explains the Model Penal Code proposal for burglary—as well as the Model Code authors’ misgivings about the offense. The Article then looks in detail at what happened in the states after the Model Penal Code—how the common law elements continued to erode until we ended up with today’s very thin crime. The Article shows what this has meant: a serious crime with significant penalties that can be invoked in a range of situations, e.g., shoplifting, hold-up of a business, or murder by a houseguest. It concludes that burglary’s evolution has finally gone too far, and no longer necessarily describes a distinct offense. It is only the memory of the common law offense that keeps courts and lawmakers from recognizing how empty the crime has become