Michigan Law Review Volume 74 Issue 8 1976 Criminal Redistribution of Stolen Property: The Need for Law Reform G. Robert Blakey Cornell Law School Michael Goldsmith Vermont State Attorneys' Office Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Criminal Law Commons Recommended Citation G. R. Blakey & Michael Goldsmith, Criminal Redistribution of Stolen Property: The Need for Law Reform, 74 MICH. L. REV. 1511 (1976). Available at: https://repository.law.umich.edu/mlr/vol74/iss8/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. CRIMINAL REDISTRIBUTION OF STOLEN PROPERTY: THE NEED FOR LAW REFORM G. Robert Blakey and Michael Goldsmith TABLE OF CONTENTS I. THE REALITIES OF MODERN FENCING SYSTEMS ___ 1523 A. Marketing Theory and the Fence ______ 1523 B. Patterns of Redistribution _________ 1528 l. The "Neighborhood Connection" _____ 1529 2. The Outlet Fence ______ 1531 3. The Professional Fence ________ 1533 4. The Master Fence __________ 1535 5. The Role of Organz"zed Crime _____ 1538 Il. SoCIAL CONTROL THROUGH LAW ____ 1542 A. Crimz"nal Sanctions _________ 1542 l. The Development of the Law ______ 1542 2. Receiving Stolen Property: A Modern Perspective ______ 1545 a. The "receipt'' of property _____ 1545 b. The goods must be stolen ---------------- 1551 c. The state of mz"nd requz"rement ----------·--------- 1558 (i). The appropriate mens rea _____ 1559 (ii). The availabz"lity of dz"rect evidence es- tablishing mens rea ______ 1562 (iii). The use of circumstantial evidence to establish mens rea _____ 1572 (iv). Strict UabUity ________ 1589 (v). Affirmative defense _______ 1593 3. Sentencing Convicted Receivers _______ 1597 B. Civil Remedz"es for Fencing Crz"mes _____ 1601 Ill CONCLUSION: BASIC TACTICS AND STRATEGY FOR LAW ENFORCEMENT _______________ 1611 Appendz"x A ___ 1614 Appendix B 1620 1511 CRIMINAL REDISTRIBUTION OF STOLEN PROPERTY: THE NEED FOR LAW REFORM G. Robert Blakey* and Michael Goldsmith'~*t Our society is permeated by a consciousness of theft: triple-locked doors of city apartments, guard dogs prowling stores and warehouses at night, retail prices and insurance rates based on the assumption that large quantities of merchandise are simply going to disappear. But our consciousness of theft tends to be limited. It is easy to imag­ ine the act itself-the forced lock or smashed window in the dead of night, the hijacker ordering the driver out of his truck cab at pistol point. It is harder to keep in mind that these acts aren't random or self-contained but are usually practical ways of acquiring goods for an established buyer. As for the dealer in stolen goods-the "fence"-there our imagination seldom goes beyond the owner of a seedy pawnshop or the character who sidles up on the street and mut­ ters, "Hey buddy, wanna buy a watch?"1 HE development of sophisticated fencing systems for the sale of Tstolen property to consumers has paralleled the industrialization of society. Although crimes against property and attempts to con­ trol them have ancient origins,2 most theft before the Industrial Revolution was committed for immediate consumption by the thieves and their accomplices rather than for redistribution in the market­ place. 3 Society's small population, inadequate transportation and * Professor of Law, Cornell Law School, and Director of the Cornell Institute on Organized Crime.-Ed. ** Deputy State Attorney, Burlington, Vt. A.B. 1972, J.D. 1975, Cornell Univer­ sity.-Ed. t These materials originated in work begun during the processing of S.13, 93d Cong. 1st Sess. (1973); S. REP. No. 93-80, 93d Cong., 1st Sess. (1973). The bill passed the Senate by a vote of 81 to O in 1972 as S.16, 92d Cong., 2d Sess. (1972) (118 CoNG. REc. 29379 (1972)) and passed again in 1973 by a voice vote (119 CoNG. REC. 10319 (1973)). No action was taken in the House Judiciary Committee, "not . • . [because of] a lack of support for the bill but . [because of] the com­ mittee's heavy work load." N.Y. Times, May 5, 1974, at 69, col. 3 (late city ed.), New legislation was not introduced in the 94th Congress. 1. Chasan, Good Fences Make Bad Neighbors, N.Y. Times, Dec. 29, 1974, § 6 (Magazine), at 12. 2. Biblical tradition has it that disobedience began with God's first command to man. See Genesis 2:16-17, 3:4-6. Laws concerning theft and robbery may be found in many sections of the Old Testament. See, e.g., Exodus 22: 1-4; Leviticus 6: 1-5, 19: 13; Proverbs 29:24. For a discussion of theft in pdmitive society, see A. DIA­ MOND, THE EVOLUTION OF LAW AND ORDER 12, 35, 50-51, 108-15 (1951). 3. "Until the seventeenth century the amount of movable property available for theft and the opportunities to dispose of this property except by personal consumption 1512 August 1976] Criminal Distribution of Stolen Property 1513 communication systems, and technological inability to mass produce identical goods constrained large-scale fencing because there were few buyers and because stolen property could be readily identified. 4 The unprecedented economic5 and demographic6 growth in eight­ eenth-century Europe, however, removed these practical constraints and made possible the profitable fencing operations7 that are now firmly institutionalized in industrial societies. Although these social and technological developments are impor­ tant, they do not provide a complete explanation for the rising theft rate or for the tremendous amount of property successfully redistrib­ uted annually. 8 Instead, these problems must be attributed in large part to our society's failure to identify properly the economic rela­ tionship underlying theft and redistribution and, consequently, to our inability to develop successful methods of legal control. 9 An understanding of the economic causes of property theft re­ quires brief consideration of the relationship between the two major participants in redistribution systems. First, there are the fences who often find it both profitable and not very risky10 t~ purchase were limited." Chappell & Walsh, "No Questions Asked," A Consideration of the Crime of Criminal Receiving, 20 CRIME & DELINQUENCY 157, 160 (1974) [here­ inaner Chappell & Walsh, "No Questions Asked"]. 4. Prior to the development of mass production techniques, a fence was faced with "the situation of highly individualized property owned on a limited scale . • • ." Id. at 168. Limited production and limited ownership foreclosed the possibility of fencing stolen goods on a large scale because there were too few buyers, and property could be too readily identified. See generally P. MANTOUX, THE INDUSTRIAL REVOLU­ TION IN THE EIGHTEENTII CENTURY 108-12 (rev. ed. 1961). 5. Eighteenth century England experienced an expansion of trade that was of "geometric proportions." J. HALL, THEFT, LAW AND SOCIETY 77 (2d ed. 1952). See P. MANTOUX, supra note 4, at 99-108. See generally H. BEALES, THE INDUSTRIAL REVOLUTION 1780-1850: AN INTRODUCTORY EsSAY 48-56 (1958). 6. See M. FLINN, AN ECONOMIC AND SOCIAL HISTORY OF BRITAIN, 1066-1939, at 115 (1965) and B. MURPHY, A HrsroRY OF nm BRmsH EcONOMY 1086-1970, at 61-62, 100-01, 229-33, 324-34 (1973) (describing dramatic growth of British popula­ tion). During this period the world population experienced similar growth. See K. CHEN, WORLD POPULATION GROWTII AND LMNG STANDARDS 64 (1960). 7. "(.T]oday's fence ... faces an economy in which imperceptibly differing con­ sumer goods are mass-produced and mass-owned and for which there seems to be an insatiable desire." Chappel & Walsh, "No Questions Asked," Hi8. "The relative im­ personality of property items, and the lack of adequate identifying marks on most categories of goods, frequently prevents the establishment of a nexus between the fence and stolen property items, or the return of recovered property to its original owner." Chappell & Walsh, Receiving Stolen -Property: The Need for Systemic Inquiry into the Fencing Process, 11 CRIMINOLOGY 484, 490 (1974) [hereinafter Chappell & Walsh, Receiving Stolen Property]. 8. See Hearings on Criminal Redistribution (Fencing) Systems Before the Senate Select Comm. on Small Business, 93d Cong., 1st Sess., pt. 1 ( 1973) [hereinafter Hearings on Fencing]. 9. See section II infra. 10. See text at notes 22-29 infra. 1514 Michigan Law Review [Vol. 74:1511 stolen goods from thieves and resell them at retail and wholesale levels. Frequently masquerading as legitimate businessmen,11 so­ phisticated fences not only use cheap stolen merchandise to increase their profits and to undercut legitimate competitors, 12 but also operate without much risk of detection since they can easily remove identify­ ing labels from the goods, falsify records to hide illegal purchases, or otherwise "legitimize" the goods, and then quickly dispose of them in the marketplace.13 Second, there are the thieves who, with the growth of viable fencing schemes, have available purchasers for their stolen property. Thus, they too can rapidly dispose of the evi­ dence of their crimes and are then presumably better able to avoid arrest and conviction.14 In general terms, a symbiotic relationship between fences and thieves appears to have developed. Any sketch of this relationship must recognize the primary role played by receivers. Such recognition is crucial if proper legal tech­ niques for controlling theft are to be developed. Unfortunately, law enforcement efforts in the United States have traditionally focused on capturing the thief rather than on eliminating the fence. 16 This "theft-oriented" approach was perhaps sufficient in preindustrial so­ ciety but is inadequate and seriously misdirected today because it fails to recognize that thieves steal primarily for profit rather than for personal consumption.16 Fencing systems play a vital role in 11.