The Rising Cost of Felony Creep

Over-criminalization takes its toll.

They could become the most expensive sunglasses in history.

Back in October, Tyler Dean Williams stole two pairs of Ray Bans and one pair of Oakleys from the Sunglass Hut at an outlet mall in Williamsburg. To punish him for that, the commonwealth is prepared to spend more than half a million dollars.

Williams has pleaded guilty to grand larceny, a felony. He faces up to 20 years in prison. Since it currently costs roughly $25,000 a year to house a Virginia inmate, and that cost likely will rise over time, the state is looking at a bill well north of $500,000.

Nobody condones stealing, and locking Williams up will make sure he doesn't steal from any stores for a good long while. On the other hand, a 20-year stretch and a half-million dollars seem like a steep price to pay for three pairs of shades (which the store got back almost immediately, for whatever that's worth).

But such is the consequence of felony creep, which results from leaving Virginia's grand-larceny statute unchanged for more than three decades. In 1980, the legislature raised the threshold for grand larceny from $100 to $200—and there it has remained ever since. If it had kept pace with inflation, the threshold would now be $576.

The low threshold makes Virginia an outlier; at least 39 states set the bar at $500 or higher. A 2008 report by the state's crime commission noted that 17 states set the bar at $1,000—and none sets the bar lower than Virginia.

Being an outlier doesn't automatically make Virginia wrong. The United States is the only country in the world with an exclusionary rule barring the use of evidence that was improperly obtained, after all, but American uniqueness in this regard is a rebuke to the rest of the globe—not a shortcoming on the part of the U.S.

The unusually low larceny threshold, however, is a shortcoming—one lawmakers have tried to change this from time to time. In 2012, Del. Scott Surovell proposed a $500 threshold; the bill went nowhere. Neither did a proposal by State Sen. Bryce Reeves to let a judge dismiss a first-time larceny charge, subject to certain conditions. Nobody ever went broke overestimating the toughness of state lawmakers toward the criminal element.

There's something to be said for being tough on crime: The public supports it, for one thing. Historically, you can find an inverse relationship between tough criminal justice policies and crime rates. Virginia abolished parole two decades ago, and the Pew Center on the States has noted that Virginia's recidivism rate falls far below the national average: 28 percent vs. a national average of 43 percent. But the 1995 parole abolition law, which included "truth-in-sentencing" guidelines, might not be able to take much credit. The Department of Corrections itself has reported that "using logistic regression to control for offender and offense characteristics, truth-in-sentencing — was found to have no significant impact on standard recidivism rates."

What's more, you also can find contrary results: While crime has fallen nationwide, it actually has fallen slightly faster in states that have cut their imprisonment rates. And though Virginia's prison population has grown sevenfold since the 1970s, the reduction it has seen in violent and property crimes is not significantly different from the reductions nationwide.

That increase in imprisonment, meanwhile, has cost taxpayers dearly. Spending on corrections has nearly tripled since the 1980s, and now costs Virginia about $1 billion a year. The commonwealth could shave a couple of million dollars off the top of that sum right away simply by adjusting its larceny threshold to account for inflation.

But monetary inflation is not the only cause of felony creep, which is not confined to Virginia. When lawmakers raise the severity of, or increase the penalty for, a first offense, that creates a reason to ratchet up the severity and penalties for subsequent offenses as well. The individual lawmaker gets a line to put on his campaign brochure; the taxpayers get a bill, only much later.

Another kind of felony creep has been taking place at the federal level. According to a Department of Justice analysis back in the 1980s, the number of federal criminal offenses stood at around 3,000. By 2007, the Heritage Foundation reports, the number had soared to 4,450 or more. Many of them have little or none of the traditional requirement of mens rea—i.e., criminal intent. Which means many of those caught up in the law commit felonies without having the slightest idea what they're doing is wrong. (Example: mailing potentially flammable material without a warning sticker on the box.)

And as Georgetown law professor Jonathan Turley has noted, Congress has delegated most of its rulemaking responsibilities to federal agencies—and given them a great deal of judicial authority to enforce them: "The result is that a citizen is 10 times more likely to be tried by an agency than by an actual court. In a given year, federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, while federal agencies complete more than 939,000."

Executive agencies jealously guard that power, too: A couple of years ago the EPA not only threatened to fine an Idaho couple $75,000 per day for building on an alleged wetland, it insisted that Mike and Chantell Sackett had no right to challenge the agency in court. (The Supreme Court eventually ruled otherwise, unanimously.)

All of this offers a reminder that government has a natural tendency to grow, and must be pared back regularly if it is to be held in check. Where to begin? Start by updating Virginia's threshold for larceny. Half a million dollars is too much to ask for three pairs of sunglasses—even Ray Bans and Oakleys.