What Counts as a Felony? For Stealing, States Are Raising the Bar.

Some are increasing the amount of stolen goods that make theft a felony. But it can be a hard sell politically.
by | March 2018

Should a man be hounded by police for stealing a loaf of bread? The question has seemed ludicrous on its face ever since it drove the plot of Victor Hugo’s novel Les Miserables in 1862. But no society can approve of theft on a grand scale. Finding the exact threshold of stolen goods sufficient to trigger a felony prosecution hasn’t been easy. Right now, most states are erring on the side of becoming a bit more lenient.

Since the start of the century, roughly two-thirds of states have raised the minimum dollar amount for thefts that constitute a felony. Several in the South, including Alabama, Georgia and Mississippi, have lifted their thresholds from $500 to $1,000 or $1,500 over the past several years, for example. Those states have seen crime rates go down by roughly the same amount as the ones that haven’t changed their theft laws, according to a study from the Pew Center on the States. Raising the felony theft threshold has not led to increases in property crime or larceny. “The evidence is pretty clear from all the other states that have done this, they have not seen any increase in crime correlated with it,” says Deborrah Brodsky, who directs a criminal justice program at Florida State University. “If we’re serious about reducing prison space, this seems like a rational next step.”

In Florida, 3,300 individuals are currently incarcerated on felony theft charges, with an additional 21,000 on probation. Given the costs involved, many legislators there and in other states are willing to raise the bar on felony theft, generally as part of bills that address criminal justice practices more broadly. “It’s basically low-hanging fruit,” says Massachusetts Sen. Sonia Chang-Diaz, sponsor of a proposal to lift the state’s theft threshold from $250 to $1,500. “I came upon this as part of a larger look at our criminal justice system, and how it is that we’ve ended up locking up four to five times as many people as we did in Massachusetts 30 years ago.”

As with other recent changes to sentencing and criminal justice practices, corrections costs are a major motivating factor. But the effect on the criminals themselves is something policymakers are also considering. A felony conviction for a young offender who steals a smartphone can make it harder for that person to find work or housing after serving his time, marginalizing him from civil life for years or for the rest of his life. And because theft is often driven by drug addiction, it’s unlikely that offenders are going to stop to calculate the price difference between grabbing an iPhone X or an old flip phone as a way of slipping under the felony line.

Despite the evidence suggesting that raising felony theft thresholds doesn’t increase crime, it remains a tough sell politically. Retailers always oppose attempts to raise the threshold. And nobody wants to send a signal that a certain amount of thievery is more or less acceptable. In Virginia, for example, which seems likely this year to pass a bill reclassifying any theft under $500 as a misdemeanor, state Rep. Rob Bell last year summed up the opposition to giving criminals a cost-of-living adjustment.  “The question is,” Bell said, “why would we make it easier on people who steal?”

No politician wants to be on record sounding lax on crime. But most, including many conservatives, have concluded that felony theft thresholds dating back to the 1980s have no great deterrent effect and that their prosecution can cost the states more than they’re worth.