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Green on Possession of Stolen Property

By Lawrence Solum

Stuart P. Green (Rutgers Law School-Newark) has posted Thieving and Receiving: (Over)Criminalizing the Possession of Stolen Property (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

Historically, Anglo-American law has treated the offense of receiving stolen property in a surprisingly diverse number of ways, including treating it as no crime at all, subjecting it to accessory-after- the-fact liability, and treating it as a free-standing offense, subject, depending on the jurisdiction, to less punishment than theft, the same punishment as theft, and 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. In order to avoid such disproportionality in punishment, various reforms in the law of receiving are recommended.

Full post as published by Legal Theory Blog on June 14, 2010 (boomark / email).