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Is Complexity a Virtue? Reconsidering Theft Crimes

BOOK REVIEW OF STUART GREEN, THIRTEEN WAYS TO STEAL A BICYCLE: THEFT LAW IN THE INFORMATION AGE

KENNETH W. SIMONS *

INTRODUCTION

n his carefully argued, richly detailed, highly engaging new book, Thirteen Ways to Steal a Bicycle,1 Professor Stuart Green considers the proper scope and contours of laws criminalizing theft. Although the subtitle of the book (Theft Law in the Information Age) suggests that the work focuses on contemporary information age problems, the suggestion is a bit misleading; the book is not just an application of accepted dogma about theft law to modern-day issues. Rather, it is a thorough rethinking of what should be punished as theft in the first instance and of what distinctions a theft statute should contain.2 The book is an important contribution to criminal law scholarship on a topic that has been neglected by all but a handful of academics. Green critiques the recent Anglo-American movement to consolidate most theft offenses into a single crime of theft 3 and to greatly expand the kinds of property that the crime of theft encompasses. 4 Green s criticisms of consolidation are plausible and cogent, and his investigation of the application of theft law to intangible property is extremely valuable. The book expertly examines the intricate details of theft doctrine; uses colorful,
* Professor of Law, Associate Dean for Faculty Research, Boston University School of Law. 1 S TUART P. G REEN, 13 WAYS TO S TEAL A B ICYCLE (2012). 2 See id. at 4-7. 3 The movement culminated in the United S tates Model Penal Code (MPC) and in Englands Theft Act of 1968. See M ODEL PENAL CODE 223.0-223.1 (1980); Theft Act of 1968, 1968, c. 60 (1968), available at http://www.legislation.gov.uk/ukpga/1968/60/data.pdf.
4

G REEN, supra note 1, at 4.

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engaging, and illuminating examples from literature and contemporary events;5 and draws frequently on comparative and historical legal sources (especially English and Canadian law but also Australian, European, Jewish, Roman, and other sources of law). 6 The book displays an impressive familiarity with doctrinal, historical, and theoretical literature. It is indispensable for both policy makers and legal theorists concerned with making sense of and improving upon contemporary theft law. In this book review, I will explain some of Green s principal arguments, and I will raise some questions about the persuasiveness and completeness of some of his analysis. Points of disagreement are much more interesting to the reader than areas of agreement. I trust that my greater focus on the former will be understood as fully consistent with my highly positive assessment of this path-breaking book. The discussion will proceed chapter by chapter. I. Theft Law Adrift A. Theory, Proportionality, and the MPC The first chapter, Theft Law Adrift, is an extremely useful overview and critique of the reform movement towards consolidating theft law. Green points out the valid reasons for reformers impatience with the highly technical, illogical, and arbitrary concepts in traditional theft law for example, asportation, breaking bulk, and trespassory caption; and the distinctions between possession, title, and custody. 7 But he also notes that, quite apart from consolidation, many of these unjustifiable distinctions were already being rejected. He concludes that the consolidators threw out the baby with the bathwater :8 they improperly rejected many valid distinctions recognized in traditional law, especially distinctions between the various means by which theft can be committed, and the various kinds of things that can be stolen.9 Thus, he complains that the Model Penal Code ( MPC) fails to draw important, morally salient distinctions between, for example, theft committed by stealth (larceny), coercion (extortion, blackmail), breach of trust (embezzlement), housebreaking (burglary), and deception (false pretenses, passing a bad check); and between these forms of theft and less blameworthy forms such as receiving stolen property or not returning lost

5 6 7 8 9

See id. at 28-30, 43-45. Id. at 36-42. Id. at 16-18. Id. at 4. Id.

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or misdelivered property.10 He also complains that the MPC defines property too broadly and without adequate differentiation, as encompassing anything of value, including intangible as well as tangible goods. I am sympathetic to Green s basic claim that the MPC and many modern reform efforts have too crudely lumped together a variety of different types of theft, thus flattening . . . the moral landscape of theft law.11 He also points out that both the MPC and the English Theft Act presuppose that the traditional basic distinctions in theft law between different forms of theft are due to the peculiarities of history, an assumption that ignores comparative law evidence that these distinctions are quite common and might therefore reflect something deeper and more universal.12 Green has noted the general risk that criminal codification efforts will, in their zeal to rationalize and modernize, ignore the plurality and subtlety of distinct moral norms expressed in the criminal law. 13 Nevertheless, it would be helpful to hear a more precise and persuasive explanation of what is wrong with such lumping. 14 Green does mention several concerns. First, he worries that someone might be unfairly charged with one form of theft and yet convicted of another. 15 However, it is not entirely clear why this would be so problematic, given that the defendant can request a continuance or other relief in order to address new evidence.16

See G REEN, supra note 1, at 52-54. Id. at 31, 40 (The result [of consolidation] has been a simplerbut also flatter and more homogenizedlaw of theft, one denuded of much of its moral content.).
11

10

Id. at 41. R.A. Duff & S tuart P. Green, Introduction to P HILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW 10-16 (2011). In my own writing, I have articulated similar concerns. See KENNETH W. S IMONS, Understanding the Topography of Moral and Criminal Law Norms , in P HILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW 228, 228-29 (2011).
13 14 It would also be valuable to hear his fuller views on one potential advantage of consolidationit might alleviate the in the gap problem that he acknowledges. G REEN, supra note 1, at 51-52. If a defendant concocts a new method of stealing that does not fall within any of the traditional categories that Green would recognize, would it not be helpful to have a default theft provision that could encompass this new method? But perhaps the answer is that the traditional categories can each be defined broadly enough that this problem is minimal or nonexistent. Id. at 52. Moreover, the problem might exist under consolidated theft statutes too, at least under the MPC and some of the codes Green discusses. These codes specify different forms of theft, and the defendant must fall within one of them. The codes do not, as far as I can tell, include an omnibus unlawful deprivation of property rights provision that would automatically eliminate gaps. 15 Id. at 49-51. 16 Green discusses four cases in which a defendant was convicted of a theft crime that he was not initially charged with, but it is not clear from his discussion that the defendant was

12

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Second, Green notes that consolidation violates proportionality requirements: some forms of theft that are categorized together for grading purposes are appreciably less blameworthy or wrongful than others. 17 This concern is quite valid, and Green is persuasive in suggesting that some types of theft should be punished more severely than simple larceny (e.g., theft by coercive threat) while others should be punished less severely (e.g., receiving stolen property, unless one is part of a theft ring). 18 However, a legislative solution that he suggests also uses relatively few qualitative grading categories, as will be discussed below , so it is not clear that this second objection seriously undermines the consolidation approach. Similarly, Green asserts that the law should recognize many gradations in degree according to the amount stolen more gradations than the MPCs three.19 He approvingly cites the Federal Sentencing Guidelines, 20 which employ sixteen categories for value of property stolen, from $5,000 or less all the way up to $400 million or more. 21 I agree that when the actor knows the approximate value of the property he is stealing, grading according to that value is quite defensible. But the Guidelines approach that Green endorses raises two questions. First, should value really be the dominant grading criterion in theft offenses, as the Guidelines suggest?22 Green does not grapple with the question yet it seems quite important. How important is the value of the property relative to other relevant grading factors? Green would punish theft by burglary more harshly than simple theft ,23 but should theft of $100 by burglary be punished more than simple theft of a $500 bicycle? More than theft of a $40,000 car? Second, in many cases, the actor does not know, at the time of the theft, the value of the property he is about to obtain. This is true of ordinary muggings, of home break-ins, and of bank robberies. In such a case, should the fortuity that the mugging victim s wallet contained $1,000 rather than $20 affect the mugger s sentence? Legal academics and

unfairly prejudiced in any of them. See id. at 28-30. In Greens own proposal for an unconsolidated set of theft crimes, he recognizes the converse problem, that the prosecution might mistakenly charge theft crime A and want the chance to prove crime B; Green is willing to address the issue by permitting reprosecutio n. See id. at 275-76. Id. at 53-54. See id. at 123-24, 169-71. 19 Id. at 46-47. 20 FED. S ENTENCING G UIDELINES M ANUAL 2B1.1 (2012). 21 G REEN, supra note 1, at 47, 273. 22 The Guidelines do recognize a number of other factors affecting grading. However, the largest authorized grading increase, by far, is for value of property: an increase of thirty -two levels if the value of the property is ove r $400 million, but a maximum increase of six levels for any other factor. See FED. S ENTENCING G UIDELINES M ANUAL 2B1.1.
18 23 17

G REEN, supra note 1, at 274.

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philosophers have debated this relevance of luck issue in the context of result crimes such as homicide.24 If the proper resolution is that luck should play little or no role, then the grading scheme should focus on the property loss that was knowingly risked, not on the actual loss. Accordingly, it would make sense not to take into account the actual property loss but only the foreseeable range of property loss when determining the proper punishment of muggers, bank robbers, and other thieves who have little notion of the amount of property they are likely to obtain. 25 Green also suggests that the MPC is deficient in not more carefully distinguishing even those various forms of theft that are roughly comparable in seriousness and that deserve similar punishment. 26 This suggestion is potentially misleading. The MPC does explicitly distinguish most of the forms of theft that Green is concerned with, giving distinct definitions of each.27 A casual reader of the book might come away with the mistaken impression that the MPC simply creates an omnibus theft crime that prohibits the wrongful deprivation of another s property. However, the MPC is much more specific than this: it prohibits robbery, theft by unlawful taking, theft by deception, theft by extortion, theft of lost or misdelivered property, receiving stolen property, theft of services, embezzlement, and unauthorized use of a vehicle; also it specifies the elements of each of these distinct forms of theft.28 Thus, when Green objects

Here, the question is whether, if the death fortuitously does not occur, the person who intended to kill or who knowingly risked death should be punished less on account of such luck. See James J. Gorbet, The Fortuity of Consequence, 4 CRIM . L.F. 1, 20-21 (1993) (discussing fortuitous circumstances in the context of criminalattempt liability).
25 To some extent, the MPC takes this approach, permitting a defense o f less-than-reckless mistake as to the value of property. See M ODEL P ENAL CODE AND COMMENTARIES 223.1 cmt. 3(c) (Official Draft and Revised Comments 1980) (noting the fortuity objection to a strict liability approach). However, many jurisdictions impose strict liability with respect to the amount of property stolen. See, e.g., COLO. REV . S TAT. 18-4-401 (2012); IOWA CODE 714.2 (2013); MD. CODE A NN., CRIM. LAW 7-104 (LexisNexis 2013); TEX. P ENAL CODE A NN. 31.03 (West 2011). Instead of exculpating for certain mistakes as the amount of property, the legislature could employ a more categorical rule that certain types of theft (such as bank robberies or home break-ins) should be punished at a specified level, in light of the expected and foreseeable risks of property loss.

24

G REEN, supra note 1, at 46. See generally M ODEL P ENAL CODE AND COMMENTARIES 222.1-223.9. 28 See id. art. 223 intro. at 122-23 ( Consolidation of theft into a single offense does not eliminate the need to specify with care the various forms of conduct meant to be included. ); see also id. 222.1 (describing robbery) & 223.2-223.9 (describing the different theft offenses in the MPC). Moreover, consolidation cannot be regarded, as has sometimes been supposed, as a solution for shortcomings in the definition of any branch of theft. Id . 223.1 cmt. 2(b) at 132. The MPC also separately defines such property crimes as burglary, criminal trespass, arson, reckless burning, and criminal mischief (criminal destruction of property); and such
27

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that the consolidation accomplished by the MPC conflicts with the principle of fair labelingthe principle that the state should announce the morally salient categories of crime in its criminal code the objection seems to be exaggerated.29 The principle is indeed quite important when the state fails to provide accurate and understandable labels to distinguish criminal from noncriminal behavior or to identify more or less serious crimes. It is also important when the state is not careful in employing a label that is especially stigmatizing (such as rape or murder ). But it is more difficult to see the value of a fair labeling principle when all it accomplishes is a much more nuanced description of a variety of crimes within a single family that all deserve the same punishment and all are known to be criminal. If the MPC or the English Theft Act simply prohibited unjustifiably interfering with the property rights of another, a lack of fair labeling would be a fair objection, but these consolidated theft provisions are far more precise than that. A further question about Green s criticism of consolidation is whether it is much ado about relatively little. The range of penalties for theft under the MPC is somewhat modest: apart from robbery, the MPC authorizes only three categories of penalty.30 The highest category, for theft of the most valuable property, is a felony in the third degree (the least serious felony).31 Theft of property worth more than $50 but less than $500 is treated as a misdemeanor; theft of the least valuable property is a petty misdemeanor.32 To my knowledge, most state criminal codes also provide a limited range of penalties for most theft crimes.33 Accordingly, the benefits to be obtained by more subtle legislative differentiation of categories and grades of theft are also modest. Proportionality and equality of treatment are important values, to be sure. But if prosecutors, juries, and sentencing judges will often take into account the values that Green espouses , and if the consequence of their failing to do so would be a punishment that is

economic crimes as forgery, credit card fraud, bribery, and other specified types of fraud. See id. 220-22, 224 (noting the types of property crimes and economic crimes referenced). 29 Put differently, this objection could also be lodged against other criminal classifications. Consider the crime of murder, which is typically committed by purposely causing a death, by knowingly causing a death, or by causing death with extreme or depraved indifference. See M ODEL P ENAL CODE AND COMMENTARIES 210.2 (Official Draft and Revised Comments 1980). Yet it is not clear that recognizing three distinct categories of murder is problematic. Cf. G REEN, supra note 1, at 287 n.107 (finding consolidation of theft more problematic than this consolidation of murder). 30 M ODEL P ENAL CODE AND C OMMENTARIES 223.1(2)(a)-(b). 31 Id. 223.1(2)(a). 32 Id. 223.1(2)(b). 33 See, e.g. , COLO. REV. STAT. 18-4-401 (2012); DEL . CODE A NN. tit. 11, 841 (2013); IDAHO CODE A NN. 18-2407 (2012); KY. REV . S TAT. A NN. 514.030 (West 2012).

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only modestly more or less harsh than is deserved or than would best serve utilitarian goals,34 then the problem is less acute than it first appears. By comparison, if we were to employ inadequate criteria for the distinctions between negligent homicide, manslaughter, murder, and death -eligible murder, where the authorized punishment could range from probation to the death penalty, the concerns ab out proportionality and equality would be far more serious. Nevertheless, even if the sentencing differences between Green s approach and the modern consolidation approach are less than might first appear, there is much to be said for improving the crimina l law in the direction of greater conformity with retributive 35 and expressive values.36 The purpose of the book therefore remains significant. B. Measuring Theft: Greens Empirical Study One intriguing section of the first chapter reports an empirical study that Green conducted, together with psychologist Matthew Kugler, on popular attitudes about different forms of theft . The study varied according to the means used and the kind of things stolen (e.g., goods vs. services, tangible vs. intangible).37 Green makes quite a bit of this study throughout the book, and its results are indeed intriguing and suggestive, apparently supporting more distinctions in grading (according to type of theft and type of property) than modern law supports. 38 However, I believe that he claims too much for the study for three reasons. First, it is a single, small study with 172 participants first year Rutgers School of Law | Newark students prior to the start of their law studies.39 Second, he claims that the participants recognized many significant distinctions between the means of committing theft in contrast to the MPC and the English Theft and Fraud Acts.40 However, for most of the scenarios (other than the lowest two and the highest two), the differences in punishment levels that the

Consequentialism, one of the major theories underlying American criminal law, is defined as [a]n ethical theory that judges the rightness or wrongness of actions according to their consequences. BLACKS LAW D ICTIONARY 347 (9th ed. 2009).
35 Retributivism is [t]he legal theory by which criminal punishment is justified, as long as the offender is morally accountable, regardless of whether deterrence or other good consequences would result. BLACKS LAW D ICTIONARY 1431 (9th ed. 2009). 36 See Guyora Binder, The Culpability of Felony Murder, 83 NOTRE D AME L. REV . 965, 999 (2008) (defining expressive values in the context of criminal liability). 37 38 39 40

34

G REEN, supra note 1, at 55-68. See id. at 274-75. Id. at 57. See id. at 62-64.

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participants selected are not that substantial. 41 Third, I have questions about aspects of the design of the study. Only one scenario is given for each type of theft; yet some of the specific scenarios are worded in a potentially misleading or at least a non-representative way.42 The larceny hypothetical is supposed to be a standard example, 43 yet it is somewhat aggravated because it involves both trespass to the victim s private land and a possible invasion of privacy. 44 A better, more pure case would be one in which the bike is stolen from a public street. Many of the other scenarios also involve this extra element of trespass on private property and are, thus, similarly problematic. The extortionist in the hypothetical scenario45 is especially reprehensiblehe threatens to burn down a house with ensuing danger to the public. I am doubtful that he is a typical or median extortionist. The blackmail scenario, by contrast, is rather mild a mere threat to show embarrassing pictures of someone from college.46 That is not much of a threat to the Facebook generation.47 A more apt example might be a threat to show nude pictures of the victim or to disclose that the victim has been unfaithful to his/her spouse. The embezzlement scenario involves an actor very likely to be caught .48 This might cause participants to want to punish him less harshly than a more typical embezzler. The simple robbery example involves grabbing a bike from the victim s hands and riding off with it.49 Does that really count as a threat of force or as force in most jurisdictions, which is required for robbery?50 In any case, perhaps a more typical simple-robbery case would involve walking up to someone, placing an arm on his/her shoulder, and saying in a threatening tone, You better hand that over.

See id. at 62. See id. at 58-60, 65-66. 43 G REEN, supra note 1, at 59. 44 See id. (describing a scenario where the offender walks onto a persons front porch , picks a bike lock, and then rides away on the bike). 45 Id. 46 See id. 47 See Lindsay S . Feuer, Note, Who is Poling Around Your Facebook Profile?: The Need to Reform the Stored Communications Act to Reflect a Lack of Privacy on Social Networking Websites , 40 HOFSTRA L. REV . 473, 482 (2011) (describing how the new social norm for Facebook users is to share vast amounts of photographs and other information about themselves). 48 See G REEN, supra note 1, at 59 (telling a scenario where Owen brings his bike to Toms bike store to be fixed, but Tom decides to take the bike home with the intention of keeping it).
42 49 50

41

Id. at 58. See, e.g., 720 ILL . COMP. S TAT. 5/18-1 (2013); WASH. REV . CODE . 9A.56.190 (2011).

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The false pretenses and bad check hypotheticals state that the owner did not need the bike and wanted to sell it.51 This might cause participants to care less about the loss of the bike as a piece of personal property; what the owner really lost was the (perhaps very small) amount of money he expected to get for the bike. Again, these do not seem to be standard cases of theft by deception. The participants reactions to the book vs. lecture contrast might be affected, not just by the goods vs. services distinction, but by the contingent fact that a book (in any form, tangible or intangible) might be considered more valuable than a lecture because once the lecture is over it has little use.52 The equivalent $50 cost of a book and a lecture might not represent equivalent value to the user. This contingent fact might help explain why the participants seemed to view an actor as slightly more blameworthy for stealing even an electronic book than for stealing a seat from a full lectur e hall.53 The problems with the scenarios raise doubts about the uses to which they are later put. For example, Green points out that the participants drew a surprisingly strong distinction between extortion (theft by means of an unlawful threat) and blackmail (theft by means of a lawful threat). 54 Elevating extortion to a higher tier of punishment is one of the most important differences between Green s proposal 55 and the MPCs consolidated theft approach. In this area, Green asserts, the MPC seems seriously out of touch with lay intuitions.56 Yet, as explained above, the extortion scenario depicts an unusually aggravated instance of an unlawful threat while the blackmail scenario depicts an unusually mild instance of a lawful threat.57 To be sure, it is difficult to know what is a typical token of a type such as theft by extortion or theft by blackmail. Still, more attention should be paid to the issue. If legislators or other scholars intend to use this or other results of the study in drafting legislation or conduct ing research, the study should be refined and repeated, so that the results are more reliable and more meaningful.58
G REEN, supra note 1, at 59. See id. at 67-68. 53 See id. at 67. Unfortunately, the study did not directly evaluate the paired comparison of electronic book/full lecture hall.
52 51

See id. at 63. See id. at 274. 56 Id. at 63. 57 See, e.g. , G REEN, supra note 1, at 59. 58 See, e.g., Francis X. S hen et al., Sorting Guilty Minds, 86 N.Y.U. L. REV . 1306, 1337-43 (2011) (providing an example of a more rigorous and more carefully conducted recent study exploring lay intuitions about criminal law grading ). Full disclosure: I am working with several of the authors on some follow-up studies to this research.
55

54

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A fourth and final question about the empirical study is more fundamental: Do lay intuitions deserve the extraordinary respect that Green gives them in the book? If so, why? After all, the book purports to provide a critique of existing legal standards by reference to desirable principles and policies. Law and psychology literature have discussed this problem, including Paul Robinson s efforts to rely on lay intuitions to justify criminal law doctrines.59 Green does address the problem, but only briefly.60 Although he acknowledges that peoples moral intuitions are not necessarily correct, and that empirical studies of this sort can[not] provide a substitute for serious normative reflection about deontological desert, 61 he often gives the study more weight than these concessions would warrant.62 One lesson that Green regularly draws from the study is that the criminal law, in order to be effective in securing citizens compliance, must adequately reflect widely shared norms about what should be criminalized and about how different crimes should be graded. 63 However, this general claim is much disputed. More to the point , the claim is dubious when applied to the specific contours of theft law. Most citizens only have the vaguest idea of how theft is defined. Would there really be more compliance with the norms against theft if a jurisdiction had an unconsolidated, rather than consolidated, theft statute?64 (Recall, again, that consolidated theft statutes such as the MPC do identify the varying means of committing theft and the varying types of property that it covers.) II. Getting the Gist of It

Chapter 2, The Gist of Theft, is a valuable conceptualization and normative reconstruction 65 of theft law with many useful distinctions. For example, Green notes that theft not only causes primary harms as

59 See Paul H. Robinson et al., Making Criminal Codes Functional: A Code of Conduct and a Code of Adjudication, 86 J. CRIM . L. & CRIMINOLOGY 304, 316-17 (1996); see also Christopher S lobogin & Lauren Brinkley -Rubinstein, Putting Desert in its Place, 65 S TAN. L. REV . 77, 78 (2013).

G REEN, supra note 1, at 91-92. Id. at 57. 62 See, e.g. , supra notes 55-58 and accompanying text; G REEN, supra note 1, at 233-34 (discussing public services such as public lectures); id. at 115 ([A]s the empirical study described in Chapter 1 shows, people continue to make significant moral distinctions based on the means by which a theft is committed. They reject the assumption . . . that all forms of theft are morally equivalent.) . 63 G REEN, supra note 1, at 53. 64 Cf. S tuart P. Green, Thieving and Receiving: Overcriminalizing the Possession of Stolen Property , 14 NEW CRIM . L. REV . 35, 35-37 (2011).
61 65

60

G REEN, supra note 1, at 70.

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losses to individual property owners, but also secondary harms including destabilizing neighborhoods and the economy .66 Similarly, the moral wrong of theft includes not only its violation of Lockean property rights or of government-created entitlements, but also by the different ways in which property is taken (e.g., by threat, by force, by stealth, and so forth).67 Green s elucidation of the difference between theft and breach of contract 68 is especially noteworthy. His criticism of Robinson s effort to decompose robbery into theft and assault 69 is cogent. I agree that when we judge the seriousness of robbery, we should view the whole as greater than the sum of its parts. His suggestion that legal norms (of property, contract, and agency) give significant shape to the pre-legal moral norm against stealing is plausible.70 From this, he draws valuable lessons about the legitimacy of theft prohibitions in unjust societies. Moreover, Green s examination of lack of consent is careful and analytically precise, making good use of Peter Westen s complex but illuminating framework.71 A. Mens Rea Green s discussion of the mens rea of theft 72 and of dishonesty 73 is quite valuable but prompts further questions. Green helpfully reviews the typical mens rea requirement that the actor purposely intends to permanently deprive the owner of the property, 74 and he points out that this should be extended to substantial (but not permanent) deprivations. 75 He thoughtfully suggests that perhaps recklessness should suffice for theft in cases where the owner might not, or probably will not, get the property back.76 But this raises the question: Does a defendant possess the required intent to deprive of property permanently when he/she acts with knowledge but not with purpose? Often, the defendant knows that his /her acts will deprive the owner of his/her goods permanently, yet does not necessarily act with the purpose of causing that permanent loss (e.g., where the defendant uses the property then abandons it, knowing that the owner will not retrieve it, but not caring whether or not she does).

66 67 68 69 70 71 72 73 74 75 76

Id. at 77. Id. at 78. See id. at 87-90. Id. at 92. See id. at 102. G REEN, supra note 1, at 106-107. Id. at 84-87. See id. at 111-14. Id. at 84. Id. at 272. Id. at 86.

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Another question concerns mistake. As Green notes, normally a defendant s mistake of fact or of law about whether he/she owns the property he/she is charged with stealing is a defense, even if the mistake is unreasonable.77 What explains this unusual rule? In other contexts, the criminal law is quite stingy about recognizing mistake of law defenses. Green s answer, that such mistakes about ownership can readily be characterized either as mistakes of fact or of law ,78 is unpersuasive: it is one thing to misunderstand whether the laptop in your possession was purchased by another, and quite another to misunderstand whether one has the legal right under a contract to repossess the laptop for nonpayment.79 A better answer appears elsewhere in the book when Green thoughtfully observes: [W]e need to know the law [of ownership] to make a judgment as to whether the defendant committed the morally wrongful act of stealing .80 B. Dishonesty Green s explication of the dishonesty requirement in English law is thorough, well-structured, and lucid.81 However, that explanation neglects to explore some important ambiguities in that requirement. Is it a mens rea requirement, an actus reus requirement, or both? It appears to be both for example, dishonesty is negated if the defendant believed that the owner would have consented had he/she known about defendant s appropriation.82 The more serious problem with the requirement, however, is its extraordinary vagueness.83 Green is remarkably untroubled by this difficulty: Dishonesty connotes a lack of honesty, probity, or integrity ; a thievishness. It exists as a free-standing concept of morality. As such, it offers an appropriate label for the wrongful element in stealing.84 I would have preferred some discussion of whether more conventional and specific actus reus and mens rea requirements could do the work that dishonesty is meant to do and thereby avoid this serious objection.
G REEN, supra note 1, at 86-87. Id. at 87. 79 For my own thoughts on these issues, see generally Kenneth W. S imons, Ignorance and Mistake of Criminal Law, Noncriminal Law, and Fact, 9 O HIO S T. J. CRIM . L. 487 (2012); Kenneth W. S imons, Mistake of Fact or Mistake of Criminal Law? Explaining and Defending the Distinction, 3 CRIM . L. & P HIL. 213 (2009) [hereinafter S imons, Mistake of Fact or Mistake of Criminal Law? ].
78 77

G REEN, supra note 1, at 101. See id. at 114. 82 For further discussion, see Simons, Mistake of Fact or Mistake of Criminal Law? , supra note 79, at 13-14, 18. 83 A NDREW A SHCROFT, P RINCIPLES OF CRIMINAL L AW 375, 376B, 377B, F (6th ed. 1991); JEREMY HORDER, EXCUSING CRIME 49 (2007).
81 84

80

See G REEN, supra note 1, at 113 (citation omitted).

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Theft as a Crime

Chapter 3, Theft as a Crime, explores a distinctive feature of theft law: the criminal prohibition exists alongside extensive civil and other remedies for loss of property.85 Accordingly, whether particular forms of theft should be criminalized is especially important to explore in light of the possible adequacy of alternative remedies. Green comprehensively and accurately surveys the panoply of tort and other civil remedies for violations of property rights.86 He then turns to seven factors that justify criminalization, relying on the work of Feinberg and Husak.87 A. Factors Justifying Criminalization 1. Degree of Censure an Act Deserves

A first factor is the degree of censure the conduct deserves. Here, Green emphasizes that the value of the property stolen is [a]mong the most important factors in judging the blameworthiness of a given act of theft.88 This claim, although commonplace, needs further defense beyond Green s arguments that the greater the value of the property, the greater the wrong to the victim; and that lay intuitions support the claim. Green does say that the MPCs grading scheme (w ith only three categories of value) is too flat.89 He also observes that many would find it unduly harsh to punish one who steals even a huge sum of money on the same level as a person who commits a rape or an assault, but he declines to hazard his own view.90 Deeper analysis would be helpful. Should degree of harm (measured only by value of property) be so central, relative to other factors such as an accompanying threat of physical harm, or a simple unlawful threat, or a breach of trust? Indeed, isn t the amount of property stolen only roughly correlated with degree of social harm? For example, a victimized bank might lose much more money than an individual victim of a larceny of personal property, but the first loss is insured and widely spread, while the second typically is not. Another complication, noted above, is the arbitrariness and crudity of the amount stolen criterion. Most thieves are hoping to steal as much money or property as possible; should the actual result matter very much to their punishment? Bank robbers as a class do expect to cause more harm than do muggers, justifying a higher penalty

85 86 87 88 89 90

See generally id. at 132-202. See id. at 133-38. Id. at 138-39. Id. at 142. Id. G REEN, supra note 1, at 142-43.

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(on this as well as other grounds).91 It is less clear that we should punish an individual bank robber who happens to obtain $100,000 more severely than another bank robber who (as a matter of luck) obtains much less. At the end of the censure discussion, Green suggests that if a given act of theft is regarded as morally ambiguous, that is a reason not to punish it.92 This again raises the question of the relevance of lay intuitions. The suggestion is a reasonable one, but it needs qualification and clarification. Is it enough, for an act to be morally ambiguous, that many people would engage in it? What if they would have moral qualms while acting? 2. The States Role in Prosecution

Turning to the question of whether the state has a special reason to bring a criminal prosecution, Green notes the Marshall/Duff argument that the wrong in crimes is qualitatively different from that in private wrongs, e.g., in being categorical, non-negotiable wrongs.93 But he also aptly criticizes that argument for failing to acknowledge the w ide variety of behaviors that are (properly) subject to both criminal and civil sanctions.94 B. The Borderline Cases of De Minimis Theft Analyzing a possible de minimis exception to theft laws, Green helpfully observes that in two categories of de minimis harm shoplifting and employees thefts of supplies theft has, to a large degree, already been decriminalized.95 His analysis here is informative and sensible. However, his suggestion that prosecutors and judges make case-specific determinations about whether a theft is de minimis 96 would benefit from more discussion of what factors should be relevant to that exercise of discretion. C. Theft by Failing to Return Lost or Misdelivered Property Later in the chapter, Green objects to treating failure to return lost or misdelivered property as a standard theft case.97 He perceptively notes that this form of theft: (1) is unusual in imposing an affirmative duty to act (and especially unusual in imposing such a duty in a case where the omission will only cause economic harm, not serious physical harm); (2) is

91 92 93 94 95 96 97

See id. at 142-43. Id. at 143. Id. at 146-47. Id. at 147. Id. at 157, 165, 168. G REEN, supra note 1, at 158-59. Id. at 169-70.

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problematically broad; and (3) relies on the complex civil law of lost property in ways that threaten the principle of legality. 98 Green s conclusion, that such cases should be punished less severely, and sometimes decriminalized,99 is a reasonable one. (However, it is worth considering whether a mens rea requirement as to the unlawfulness of the actor s taking of the lost or misdelivered property would alleviate the legality concerns.) Green does a nice job explaining the fine distinctions between lost, mislaid, and unclaimed property. D. Receiving Stolen Property Receiving stolen property, Green points out, is an important but underanalyzed crime.100 He suggests a useful distinction between its backwardlooking aspect (the perpetuation of the original thief s wrong) and its forward-looking aspect (the encouragement of theft by creating a market for stolen goods), and he validly criticizes current law for exclusively focusing on the first perspective.101 His objection to punishing that form of receiving as harshly as other types of lar ceny is also well-taken.102 Green also helpfully suggests that the law encompass the forward-looking perspective as well,for example, by punishing as aggravated receivers those who engage in a pattern or practice of receiving.103 At the same time, he carefully explains the relationship of receiving to accomplice liability. 104 His suggestion that we treat thieving and receiving as distinct, non overlapping offenses is also persuasive.105 However, Green offers a mens rea analysis of receiv ing that I find unsatisfactory. He notes that some jurisdictions require that the receiver know that the property is stolen, while others require only that the receiver believe that the property is stolen.106 Green claims the former mens rea is narrower.107 I demur. When a jurisdiction requires that the receiver know that the property is stolen, it is requiring both an actus reus that the property actually is stolen and a mens rea that the receiver believes it is stolen.108 Unless knows is given an unusually narrow

See id . at 172-75. Id . at 6. 100 Id . at 180-81. 101 Id . at 181. 102 Green, supra note 1, at 193. 103 Id. at 193-94. 104 Id . at 189-92. 105 Id . at 193. 106 Id . at 185. 107 Id . 108 Eric A. Johnson, Rethinking the Presumption of Mens Rea , 47 WAKE FOREST L. REV . 769, 788 & n.113 (2012).
99

98

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reading, the mens rea that the term requires is the same as the mens rea that the term believes requires.109 Of course, the two types of statutes do differ significantly in what counts as completing the crime. Under a knowledge statute, if the goods believed to be stolen are not stolen, one is at most guilty of attempt.110 Under a belief statute, one is guilty of the completed crime in that situation, and thus might be punished more harshly.111 E. Theft by False Promise, Bad Checks, and Extortion Addressing theft by false promise, bad checks, and extortion, Green asserts, with good evidence, that the core of these crimes is defensible but that some extensions beyond the core go too far for example, instances of extortion in which the defendant makes a lawful, rather than unlawful, threat.112 In the former scenario, he would punish only in specia l circumstances (such as informational blackmail).113 IV. Property in Theft Law

Chapter 4, Property in Theft Law, explores the proper scope of property subject to the theft prohibition. Green discusses conceptual tools to define property: (1) commodifiability ; (2) rivalrous and excludability ; and (3) theft as a zero-sum transaction.114 These are plausible requirements, for the most part, which Green elucidates with care.115 Green s basic claim here is that the scope should not be as broad as under current law, but should be restricted to (1) things that are illegal to buy, sell, or possess; (2) things that are only illegal to buy and sell; and (3) things that are capable of being bought and sold. 116 Without restating his argument, I will offer a few observations. A. The Case of the Body Snatchers He persuasively argues that body stealing laws are really concerned with the sanctity of human bodies after death, not with the property rights

Contra G REEN, supra note 1, at 185-86. See Kenneth W. S imons, Mistake and Impossibility, Law and Fact, and Culpability: A Speculative Essay , 81 J. CRIM L. & CRIMINOLOGY 447, 478-83 (1990). 111 See id . at 482-83. This assumes that the jurisdiction punishes completed crimes more harshly than attempted crimes.
110 112 113 114 115 116

109

G REEN, supra note 1, at 194, 201-02. Id . at 202. Id. at 207-11. See id. Id. at 211.

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of the decedent s family,117 and that unauthorized use of sperm, ova, or embryos should be analyzed similarly . Thus, theft law should not apply to such cases.118 B. Theft of Semi-Tangibles 1. Electricity, Cable, and Wifi

Green claims that semi-tangibles such as electricity should count as property if misappropriated in sufficient quantities to cause a significant drag on the company s resources.119 However, cable television might be different, because it does not deprive the company of a physical thing (as electricity does) and because its economic effect on the company is less clear.120 I am dubious. The physical nature of the deprivation need not be critical, and indeed is the question at hand. The fact that the economic effect is trivial in a particular instance of taking cable service for free also does not seem dispositive, given the reality that if many people act similarly, the economic effects will be quite significant. Green is especially skeptical of treating wi-fi piggybacking as theft because those who fail to put password protection on their networks could be viewed as consenting to others using their signal and often the use by others does not degrade the signal.121 The consent argument, he recognizes, is sometimes implausible: failing to take an easy precaution against someone taking your property (if that is what it is) does not amount to consent to the taking. 122 But the argument that degradation is a necessary element of theft in such cases also fails to persuade. Even in the absence of degradation, the cumulative economic harm to providers of wi-fi or other electronic signals would be enormous if everyone could take the benefit without paying.123 2. The Serious Problem of Free Riding

This raises a broader point: free riding is a more serious problem, and also, I believe, is more justifiably treated as theft than the chapter suggests.

117 Id . at 215-16; see also J.A. Bryant, Jr., Construction and Application of Graverobbing Statutes, 52 A.L.R.3d 701 (1973).

Green, supra note 1, at 215-16. Id . at 226-27. 120 Id . at 228-29. 121 Id . at 229-30. 122 Id . at 229. 123 Greens use of the zero -sum concept is rather casual: he uses the term in what he calls the common rather than economic sense, and so must concede that theft sometimes imposes costs on victims and society in excess of the value of the property stolen, in which case the game is negative -sum. Id . at 350 n.26.
119

118

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Consider an illustration of the point involving tangible property. Y owns a pond that he uses to feed his animals. Z takes some water from the pond to feed his animals. Even if Z takes so little water that it does not affect Y s ability to feed his animals, Z has committed theft. One rationale is the cumulative effect: if many others copied Z s behavior, Y would be unable to feed his animals; but, even if that is unlikely to occur, Zs act is still theft. It is still theft even if Z would not otherwise have paid for the water. The rough zero-sum paradigm that Green insists characterizes theft does not apply here;124 and I believe there are many other theft scenarios where the thiefs gain does not correspond even roughly to a similar loss by the owner. 3. Goods and Services

Green does not recognize any difference between goods and services, at least when the service is private. From a moral perspective, there is virtually no distinction between Ds tricking H into giving him a fifteendollar haircut and Ds tricking H into handing over a fifteen-dollar bottle of wine.125 I am not so sure. The value of time is indeed important, but it is not equivalent in all respects to the value of tangible property. 126 Additionally, it is not clear why Green is so willing to draw qualitative distinctions with respect to the means of theft but much less willing to draw such distinctions with respect to what is stolen. Still, it is plausible to conclude that the law should often treat goods and services the same for purposes of theft. 4. Public Services

With respect to public services, Green is unwilling to extend theft law to a person who, without paying the required fee, consumes a nonrivalrous service, such as a public lecture that many can enjoy at once, unless the person would thereby exclude a paying customer.127 I would not dismiss so lightly the free rider worry in such cases. It is not enough to reply that counterfactually, the free rider probably would not have paid for the service. Is it not still unfair to the person providing the lecture that she got something for nothing? And, of course, in standard theft cases, very often the thief would not have purchased the goods in the market. Similarly, I think it is both unrealistic and unjustified to require the government to

Cf. G REEN, supra note 1, at 210. Id . at 232. 126 Moreover, in a number of contexts, such as products liability in tort law, the law draws a sharp distinction between the legal protection afforded to products and that afforded to services.
125 127

124

See G REEN, supra note 1, at 233-34.

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prove that but for the illegal admission, someone would have paid for a seat. This would be an impossible burden. Moreover, if such behavior is permitted, the cumulative economic harm to owners of movie theaters and other public services could be significant. On the other hand, if Green only means that such behavior is not theft but instead is a lesser or different crime, his analysis is more defensible. 5. Identity Theft & Intellectual Property

Greens analysis of identity theft is excellent: highly informative, wellstructured, with many useful distinctions. 128 The discussion of intellectual property is also quite good, efficiently summarizing the major categories and some relevant doctrines. However, once again I am not convinced by the argument that theft law should not apply to free riders who do not deprive the owner of the value of his property in the narrowest sense. 129 For example, Green says that illegally downloading a book is unauthorized use or trespass but not theft because the act does not deprive the publisher/owner of the book; while if a second actor distributes illegal downloads to numerous individuals who would otherwise buy the book, this does deprive the owner of his property.130 But the only difference here is scale and degree of economic impact. In neither case is the owner actually deprived of anything except a possible profit. Compare a more tangible version of these scenarios: publisher X prints out physical books on demand for a fee; Y surreptitiously uses the printer to create one, one hundred, or one thousand books. Hasn t Y stolen more than the ink and paper, regardless of how many books he has created? Green might have a plausible argument for why theft law should not be used to address these free rider uses of property, and why other criminal sanctions should be used instead; this would be worth exploring more fully. It would be especially valuable to consider how the criminal law might properly address unauthorized use, including how harshly this should be punished relative to theft. But I am not convinced that the criminal law should not address these forms of interference with property and economic advantage. C. Criminalization The final section, on criminalization, is appropriately cautious. Green notes, for example, that some of the fine distinctions he has recognized

128 See generally id. at 240-45; see also S usan W. Brenner, Bits, Bytes, and Bicycles: Theft and Cyber- theft , 47 NEW ENG. L. REV . (forthcoming 2013). 129 130

Contra G REEN, supra note 1, at 256. Id . at 255-57.

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might be too subtle to employ in actual criminal codes.131 V. Greens Concluding Thoughts

In the brief concluding chapter, Green does not offer a model statute, but some desiderata for one.132 The chapter nicely crystalizes many of the themes from the earlier chapters, demonstrating their concrete significance for legislation. He suggests that the law should grade theft according to value of property stolen, means used, and type of property. 133 Under means, he would recognize four broad categories of theft of decreasing seriousness. The most serious would include aggravated robbery and aggravated looting; the next would include simple robbery, burglary, and some thefts by coercive threat; the third would include most of the other categories; and the last would include, e.g., failing to return lost property and possession of stolen property.134 A. Is Proportionality Simply the New Consolidated Statute? This detailed proportionality scheme is plausible. 135 However, this recognition of four categories is not that much more refined than some of the consolidated theft schemes that Green earlier criticized. Thus, the MPC recognizes three basic categories: robbery and burglary are treated as especially serious; most forms of theft are considered less serious; and unauthorized use of a vehicle is the least serious. B. Practical Applications of a Mixed Approach A final, critical question raised by the concluding chapter is how a legislature or sentencing judge is to balance utilitarian concerns, such as the benefit of deterring theft, with retributive principles, requiring punishment proportional to desert. Green endorses a mixed approach, whereby retributive proportionality is a const raint on consequentialist goals.136 But he says relatively little about just how much of a constraint he would impose. If embezzlement is five times more difficult to detect than simple larceny, then, all else being equal, the utilitarian might punish it five times

Id . at 268-69. Id . at 270. 133 Id . at 273. 134 Id . at 274-75. 135 I do have a quibble, however, with his placement of lack of consent and dishonesty in the mens rea discussion: lack of consent is clearly an actus reus element, and it is a separate question whether either knowledge, recklessness, negligence, or some other mens rea should attach to it. Dishonesty is an opaque concept, which might be interpreted as a pure mens rea requirement, or as a combination of mens rea and actus reus.
132 136

131

G REEN, supra note 1, at 271.

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more harshly (for any given amount of property stolen). This would present the potential embezzler with the same expected punishment cost as the potential larcenist. Green suggests that this much of a differential would violate proportionality principles.137 He does not explain why. Throughout the book, Green relies very heavily on moral intuitions about which modes of theft and which types of property appropriation are most blameworthy.138 Although he often mentions the existence or nonexistence of deterrent benefits as relevant to decisions about criminalization and grading, in the end he seems to place much more weight on retributive principles. That is certainly a defensible position. On the other hand, if he truly does mean to endorse a mixed theory, one would think that theft law would be one of the criminal law domains in which deterrent benefits would be the greatest, and thus in which those benefits should count the most, relative to the value of respecting norms of just deserts. After all, most thieves are motivated mainly, if not exclusively, by the economic benefits of their criminal conduct either from the use of the stolen property or from converting the property to cash or som ething else of personal value.139

CONCLUSION
Professor Green s ambitious and wide-ranging book is an impressive achievement. The many questions that I have raised about the details of his argument are ultimately a testament to how well he has animated a doctrinal area of criminal law that most scholars have not viewed as worthy of serious study.

137 See id . at 273. Green also c onsiders the comparison of embe zzlement being twice as hard to de ter and three times as hard to detect as extortion but finds no justification in five times the punishment. Id. at 152. 138 See, e.g. , id. at 274-75. 139 T.W. Brown, Note, An Argument for Easing Felony Expungement in Arkansas , 65 A RK. L. REV . 751, 768 (2012).