The Supreme Court commented, in dictum, that a residential burglary conviction, with a one-year sentence imposed, would qualify as an aggravated felony crime of violence under 18 U.S.C. 16(b). It stated: The classic example is burglary. A burglary would be covered under 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime. Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). This statement, however, was not necessary to the decision, and the court offered no evidence or authority in support. The court followed this up with the decision in James v. United States, 550 U.S. 192 (2007), in which it held that attempted burglary constituted a crime of violence for purposes of enhancing a federal sentence based on a violent prior conviction. Examination of the statistical facts, however, contradictions the courts assumption in these cases.

A study funded by the National Institute of Justice found that burglary and attempted burglary rarely involve violence. Is Burglary A Crime Of Violence? An Analysis of National Data 1998-2007, see https://www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf.

Here is the abstract:

Traditionally considered an offense committed against the property of another, burglary is nevertheless often regarded as a violent crime.
For purposes of statistical description, both the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS) list it as a property crime. But burglary is prosecuted as a violent crime under the federal Armed Career Criminal Act, is sentenced in accord with violent crimes under the United States Sentencing Guidelines, and is regarded as violent in state law depending on varied circumstances.
The United States Supreme Court has treated burglary as either violent or non-violent in different cases. This study explored the circumstances of crimes of burglary and matched them to state and federal laws. Analyzing UCR, NCVS, and the National Incident Based Reporting System (NIBRS) data collections for the ten year period 1998-2007, it became clear that the majority of burglaries do not involve physical violence and scarcely even present the possibility of physical violence. Overall, the incidence of actual violence or threats of violence during burglary ranged from a low of .9% in rural areas based upon NIBRS data, to a high of 7.6% in highly urban areas based upon NCVS data. At most, 2.7% involved actual acts of violence.
A comprehensive content analysis of the provisions of state burglary and habitual offender statutes showed that burglary is often treated as a violent crime instead of prosecuting and punishing it as a property crime while separately charging and punishing for any violent acts that occasionally co-occur with it. Legislative reform of current statutes that do not comport with empirical descriptions of the characteristics of burglaries is contemplated, primarily by requiring at the minimum that the burglary involved an occupied building if it is to be regarded as a serious crime, and preferably requiring that an actual act of violence or threatened violence occurred in order for a burglary to be prosecuted as a violent crime.

Thanks to Raymond Bourluchi.

 

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