Theft

The function of a penal code is not only to specify what is punishable but also to set legislative limits on the discretion of judges in imposing sentences and to express a legislative judgment on the relative heinousness of different offenses. The question then is, What do legislatures provide, and what should they provide, in the way of maximum sentences for various forms of theft? One might initially expect that if "theft" is a rational category of behavior, the legislature would content itself with providing a maximum sentence of, say, ten years' imprisonment for theft of the greatest scale under the most aggravating circumstances. Within the ten-year legislative maximum, the sentencing judge would have discretion to impose individual sentences that reflect the infinite variety of circumstances and offenders. Actual duration of imprisonment under an indeterminate sentence imposed by the judge would be determined at the discretion of a parole board, which may judge that the prisoner has been sufficiently reoriented by his prison experience to be safely returned to the community.

Sentence limits expressed in categories as gross as larceny or theft are unacceptable. Already in the eighteenth century, the extreme penalty authorized for larceny led to statutes barring capital punishment where only petty values were involved. By the twentieth century, the grading of theft offenses by value had become more complex. There would be not only "grand" and "petty" larceny, but ladders of value with three or more rungs, for example, at $100, $500, $5,000, and $100,000. Petty-value grading might be denied in the case of particular classes of property, the misappropriation of which was especially to be discouraged. Examples are guns, drugs, public records, vehicles, mail, and keys. Similarly, legislative downgrading based on low value might be denied because of aggravating circumstances, such as theft of public property by a civil servant, theft by means of certain threats, or theft of property by one to whom it was entrusted in a fiduciary capacity. Of special interest is the development of statutes dealing uniquely with shoplifting, or stealing merchandise from stores, carrying very low maximum sentences. It seems strange that merchants would seek legislation reducing the penalties for stealing their goods. They recognized, however, that lower penalties, which can be imposed in less formal proceedings before magistrates, would be a more effective deterrent than cumbersome prosecution for conventional larceny.

Apart from different maxima corresponding to amounts stolen, there were differences depending on the manner in which the theft was effectuated. The historic evolution of theft legislation had the consequence that every time a legislature added a new category of theft, such as embezzlement or false pretense, it made a contemporary judgment of the appropriate maximum for that "new" offense without aligning that maximum with older, more rigorous sanctions applicable to larceny. After the consolidation of theft offenses, discussed below, these differences tended to disappear, leaving only traces in the value-grading where certain betrayals of trust, such as embezzlement, may carry higher legislative maxima than a corresponding larceny.

Consolidation of theft offenses. Penalizing thievish rascality by means of a variety of distinguishable offenses entailed a number of technical legal problems that led twentieth-century legislators to attempt to consolidate the historic array of theft offenses into a single comprehensive offense called theft or stealing. One of these problems was legislative, having to do with the propriety of prescribing different penalties for different forms of theft. More pressing was the prosecutor's problem of choosing the right offense to charge. From information provided by the police, he might reasonably conclude that a case was larceny by trick, only to have that charge defeated by evidence that the culprit secured not merely possession but title; this would make the offense an obtaining by false pretenses rather than a larceny. If the prosecutor were foresighted enough, he might have charged both offenses, leaving it to the jury to select the proper one. But the vagaries of juries and the subtlety of the distinction might result in conviction on the wrong count and acquittal on the other. Upon appeal, the conviction on the wrong count would be reversed, and the reprosecution on the right count would be barred by constitutional prohibition against retrying an accused on a charge upon which he has once been acquitted. In one case, a woman obtained money from a prominent actor upon her representation that she had had intercourse with him and had borne his child. The actor denied having had intercourse with her. She was convicted of obtaining by false pretense, but the conviction was set aside on appeal on the ground that the actor, knowing that he had not had relations with her, could not have been deceived; the offense was extortion by threat rather than obtaining by deception (Norton v. United States, 92 F. 2d 753 (9th Cir. 1937)).

The frustration felt by prosecutors, victims, the press, and the public at the spectacle of swindlers thus eluding punishment is understandable. The consolidation statutes were not, however, an unqualified success. The accused was still entitled, as a matter of fair procedure, to be given notice in advance of the trial regarding particulars of the charge. The particulars given would tend to show one or another of the traditional categories of theft, and the prosecutor would be required to prove the case so outlined and no other, lest the defense be unfairly "surprised."

What was really needed here to prevent frustration of the law was a more flexible and realistic view of "harmless surprise." The legislators might even have retained the older, multiple-category theft if they also had enacted a rule that conviction for any category of theft should be valid if the evidence proved guilt under any other category in the absence of demonstrated prejudicial surprise. It would be a rare case in which a defendant and his lawyer would not be fully aware of the nature of the transaction charged as criminal, and the choice of the proper penal label ought not to matter. The argument is tempting, but it encounters formidable objections. Sometimes it does matter, for example, if the legislature has prescribed different penalties. Where trial by jury is a fundamental right, it matters that the jury, not a judge, determine what offense has been committed. On the other hand, as a practical matter courts do indeed implement a casual version of the doctrine of "harmless surprise." They will not throw out a conviction because of variances between the indictment and the prosecutor's case unless the variance is "material," and the defendant suffered "prejudice" as a result of the surprise. (See, for example, Thompson v. Nagle, 188 F.3d 1442 (11th Cir. 1997); United States v. Mills, 366 F.2d 512 (6th Cir. 1966)).

Under the consolidation statutes the old distinctions still retain importance because the outer boundaries of the consolidated theft offense are an amalgamation of the boundaries of the constituent offenses. The line between what is criminal and what is noncriminal continues to derive from the older law. Thus, a misrepresentation that is noncriminal under classic false-pretense law might suffice for larceny-by-trick. It becomes crucial, then, to know whether the case involves a transfer of title (false pretense) or a tricky taking and carrying away from the possession of another (larceny). Moreover a consolidation statute is likely to need and to incorporate sentencing distinctions that parallel the categories of the older theft law. For example, leniency for petty larcenies may be inappropriate for small embezzlements by fiduciaries or public officials.

The consolidation reform may have assumed an importance for prosecutors, judges, and academic lawyers that is disproportionate to its practical significance. However striking and provocative the cases of individual swindlers who "get off" may be, it must be remembered that these make up the tiniest fraction of theft prosecutions, which in turn represent a small fraction of thefts committed. The security of our belongings is not measurably impaired by these rare, though spectacular, acquittals, although politicians and press may play up these incidents in such a way that we all feel less secure. Important increments in property security can come only from more effective policing, improved technology, greater economic justice, and a lessening of the alienation of segments of the population from the general community and its standards of behavior.