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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.

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  • Counterfly||

    But think of all the cred he'll have in prison for being in there for Grand Larceny.

  • sarcasmic||

    The United States is the only country in the world with an exclusionary rule barring the use of evidence that was improperly obtained

    I thought the Supremes just threw that out.

  • Mickey Rat||

    No, they just widened the concept of "properly attained" to the point of there is not much that would actually be excluded.

  • JRS1001||

    A huge cost of felony creep is the fact that it has created a huge class of individuals who cannot get a decent job no matter how small the crime or how long ago it was committed. Go on Craigslist and look at the sheer number of job listings that will not hire formerly convicted felons. Many of these jobs are things like bagging groceries or landscaping where there is little to no chance that their past will have anything to do with their employment.

  • Kevin47||

    That is the huge cost of the government keeping a record of prior arrests and making it available for no Constitutional reason.

  • Juice||

    Sometimes when you watch an old movie or read some old news story, it reminds you that "back in the day" prison sentences for petty crimes were sometimes quite severe. Found with a joint in your pocket? 10 years. Stole a bottle of liquor from a liquor store? 10 years. Jacking off in a public park? 10 years. So we're just going back to those halcyon days.

  • Fizban||

    steal a cow? death.

  • KaysGreenstreetygu||

    my neighbor's mother-in-law makes $83 /hour on the computer . She has been fired from work for 6 months but last month her income was $20084 just working on the computer for a few hours. check this site out........

    http://www.Jobs-spot.com

  • Dread Pirate Roberts||

    My cousin's roommate's sister makes $93/hour giving handjobs in the alleyway at 83rd and Broadway. Tell her "Uncle Marv" sent you.

  • dave b.||

    (Example: mailing potentially flammable material without a warning sticker on the box.)

    Would this include paper, being that it's potentially flammable? If so, doesn't this give them justification to round up all of us and send us to the camps? Asking for a friend.

  • Kevin47||

    While I agree with all the points about federal agencies imposing penalties, and while it is clear VA needs to tweak its laws to keep up with inflation, I am not particularly sympathetic to those committing property crimes.

    The oft-heard anecdote in opposition to three strikes rules relates to the fellow who faced life for stealing a children's bike. A child's bike might not have much monetary value, but it means everything to a child. If a person is so deranged (or drug addled, or whatever) that he is willing to deprive a child of arguably their most important possession, I don't want him walking among us for a very long time.

    There are a lot of stupid crimes on the books, but property crimes do not rate among them. They represent a substantial infringement on personal liberty and security, and Libertarians should regard them as such.

  • BDub||

    Then just be sympathetic to those footing the damn bill!

  • BDub||

    I bet if you asked somebody in the Sunglass Hut corporate office if they wanted to foot the bill for this guys incarceration, they would say, "fuck that, give him the sunglasses!'

  • DC_36||

    "A child's bike might not have much monetary value, but it means everything to a child. If a person is so deranged (or drug addled, or whatever) that he is willing to deprive a child of arguably their most important possession, I don't want him walking among us for a very long time."

    Complete nonsense. The worth of something must be objective, i.e. dollars. Not subjective like children's feelings, as you suggest. It's odious that you would want to lock up someone "for a very long time" because they made a child have sadz.

    If I steal a bike from a kid who has 3 bikes, and you steal a bike from a kid who has only 1 bike - your sentence should be 3X as long, right? The bike I stole would not have "meant the world" to a kid who had two others.

    What if my "prized posession" is a snickers bar my dad gave me just before he died? If someone steals my candy bar, would you also be okay with locking them up "for a very long time"?

    Let me know when you see the absurdity of your suggestion for sentencing basis.

  • Dread Pirate Roberts||

    I'd like to see us implement the same "tough on crime" mentality to crooked bankers and politicians.

  • Duncan20903||

    Believe it or not I recall reading about the Virginia Legislature having this very same debate years and years ago. About the only difference was that the $200 was either just a bit more or less than $400. I never heard the end of that debate but I guess that the "tough on crime" clowns must have won.

    Hey, why the heck bother with petty larceny anyway? Just give 'em the chair. The chair!

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