Is the Legislature preparing to "decriminalize" theft?
Pretty much, says Dan May, district attorney for the 4th Judicial District. May, whose office covers El Paso and Teller counties, is one of a few people speaking out against a bill that recently passed the House on a unanimous, bipartisan vote.
Based on work done by the Colorado Commission on Criminal and Juvenile Justice, HB 1160 essentially does two things. The first, which was the impetus for the bill, is to clean up the theft statutes in the state criminal code.
As May explains it: "consolidating them all into one section, and then sort of redefining it in an easier-to-handle method to understand all the little theft laws." He has no problem with this, he says.
What he does have problems with is how these theft statutes are redefined in terms of monetary value. Most concerning: This bill would raise the threshold at which a misdemeanor becomes a felony, from $1,000 to $2,000.
"It will decriminalize theft to some degree," says May, "because you are making a much greater population of misdemeanors."
Making a case
The bill will affect local retailers, May argues, because of how law enforcement responds to a given shoplifting call: "Police agencies, in their investigations, set up their resources based on whether it's a felony or misdemeanor." If it's a misdemeanor, the Colorado Springs Police Department will send a patrolman, but May says "if you aren't able to catch somebody on the scene, you may or may not get any follow-up on the case."
If it's a felony, however, the police refer the case to their detective bureau.
"The retail community is concerned," he says, "that there are a lot of items that you can steal that are between $1,000 and $2,000."
According to CSPD Sgt. Gary Frasier, this will impact patrol officers, as they're the ones who deal with misdemeanors. Further, he notes that in New Mexico, felony theft is reached when an individual steals more than $500.
"Might this create a situation where thieves from NM cross into Colorado to commit thefts knowing they can steal more without facing a felony charge?" he asks in an e-mail.
And finally, both Frasier and Robyn Cafasso, deputy district attorney, note that when prosecutors put together cases against shoplifters, they often try to aggregate multiple instances of theft into one charge to achieve a felony-level prosecution. Says Cafasso: "It's going to take twice as much work now, to try to aggregate all of these individual occurrences to get to the felony level. And again, this felony is still just an F6."
An F6, which is the lowest felony class, carries a presumptive penalty of one year to 18 months of incarceration and fines up to $100,000. As she points out, the DA's office tends to focus its limited resources on higher-level felonies, such as F4s and F3s.
"And we have a significant number of F3s," says Cafasso. "We really are, as Dan put it, decriminalizing by reducing the penalties, reducing the classification, of even our felony thefts."
May argues that this bill will push the burden of prosecution and incarceration onto local municipalities, which handle misdemeanor cases. Thus he suggested that the Independent contact Colorado Springs City Attorney Chris Melcher and Municipal Court Presiding Judge HayDen Kane.
While Melcher didn't respond to a request for comment, Kane states simply that the bill actually shouldn't strongly impact the municipal courts. "Our job is to handle whatever comes through the door," he says.
While the legislation's fiscal note states that the impact to local jails "cannot be determined," the El Paso County Sheriff's Office, which oversees the county jail, says that the law should have little impact on their operations.
None of which comes as a surprise to Christie Donner, executive director and founder of Colorado Criminal Justice Reform Coalition, who worked on the drafting of the bill. As she notes, it has received broad support from stakeholders in criminal justice, including the Office of the State Public Defender, the state Department of Public Safety, the Colorado Retail Council, and the Colorado District Attorneys' Council. (Notably, former El Paso County District Attorney Jeanne Smith chaired the bill-drafting committee.)
"The impact on the prison population is expected to be fairly minimal," she says, pointing to the fiscal note, which estimates that only 49 people who otherwise would have received prison time will avoid it in 2014 and 2015.
And, again, the bill has gotten Republican support; Minority Leader Mark Waller of Colorado Springs even co-sponsored it.
"These values haven't been updated in 20 years, or something like that," Donner says of the charging guidelines. "So they were sort of adjustment for inflation."
The benefits, she says, will be found in allowing those convicted of minor theft charges to be able to enter programs to prevent recidivism or to continue working jobs to pay back their fines.
"These are offenses for which most people are already going to get probation, unless they have other lengthy criminal histories," Donner says. She adds, "Making it easy for [district attorneys] is not the priority. It's about justice. The reality is that being tough on crime is about what works. That's being tough. That's being effective."