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Texas Must Hold the Line on Prosecutions for Theft

By TCCRI Staff. Feb. 26, 2020

The following is an extract from TCCRI's testimony to the Senate Committee on State Affairs regarding its charge to study the prosecution rate for low-level theft offenses. Click here to read the full testimony.

The argument that arresting and prosecuting lower-level offenders costs taxpayers significant money is undoubtedly true, at least on a short-term basis. Ensuring that taxpayers dollars are spent wisely is a worthy goal. However, enforcing the criminal law and protecting the rights of citizens from criminals are among the most fundamental obligations of government. If substantial funding is necessary to provide that protection, then that substantial funding is money well spent. In addition, the argument that not prosecuting theft will save taxpayer dollars also assumes that offenders will not progress to more destructive crimes over time, given the lack of sanctions against them for lower-level offenses.

If there were strong empirical data that refraining from prosecution of theft caused theft rates to go down, then of course it would be sensible for policymakers to examine whether taxpayer dollars directed to law enforcement were being spent in an efficient manner. However, the data that exists on the connection between crime rates and prosecutors foregoing prosecution for arrests below a certain dollar amount is not robust enough to justify changes in policy. A 2017 study by the Pew Charitable Trusts found that, between 2000 and 2012, 30 states increased the threshold dollar amount at which thefts would be treated as felonies rather than misdemeanors. The study concluded that property and crime rates in the 30 states declined to roughly the same extent as the rates for those crimes declined in the other 20 states. However, modifying the line between misdemeanor theft and felony theft is a different matter than not prosecuting thefts of items with a value below a certain dollar amount. Misdemeanor theft can still result in a significant fine and jail time, whereas not being prosecuted at all effectively results in no punishment.

In contrast to the Pew Charitable Trusts study, evidence from California suggests that increasing the threshold dollar amount for a theft to be categorized as a felony has contributed to an increase in shoplifting. In 2014, California voters approved Proposition 47, which among other things raised the dollar threshold for felony theft to $950, up from $450. One news report states that, “Sources quote some large California retailers such as Safeway, Target, Rite Aid and CVS as saying that shoplifting has increased at least 15 percent [after the passage of Proposition 47], and in some cases, doubled. LAPD reported that shoplifting reports jumped by 25 percent in the first full year of the new law.” A Sacramento district attorney remarked that “we’ve heard of cases where shoplifters are going into stores with a calculator so they can make sure that what they steal is worth less than $950.”

One point that policymakers should recognize in the debate on criminal justice reform is that the United States is a much safer country than it was in 1990. Many criminal justice reform advocates bemoan the high incarceration rate of the United States, but refuse to acknowledge the tremendous strides the country has made in combating crime. For example, in 1960, the United States violent crime rate was less than 200 violent crimes per 100,000 persons. Over the next few decades, violent crime rates exploded, reaching more than 700 per 100,000 persons in 1992. From 1999 to 2018, the violent crime rate per 100,000 persons dropped from 523 to 369. The number of thefts per 100,000 persons over that same time period has gradually declined from 2,551 to 1,595. Along with this reduction in violent crime, the rate of persons jailed or imprisoned in the United States in 2016 was lower than that in 2000. Determining the causes of changes in crime patterns can be an inexact and complex analysis that takes into account many variables, including economic factors and demographic patterns. However, the combination of trends- lower crime rates along with lower incarceration rates- suggests that law enforcement nationally is doing an excellent overall job by imprisoning people who contribute to the crime rate. While the U.S. may still have a relatively high incarceration rate, that high incarceration rate itself may be key driver of the decline in the crime rate since the early 1990’s.

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