The need to decriminalize some forms of Theft

Last year, the Law Office of Chris Van Vechten represented a 22 year old client with no prior criminal history who was charged with stealing $5.99 worth of nail polish from a Walmart in Tacoma.  The client didn’t even make it out of the store before security stopped her…so the merchandise was fully recovered and presumably later sold at a profit.

It took the City more than a year before charges were filed against her (the statute of limitations is 2 years for third degree theft, which is theft of property worth less than $750).  In the time subsequent, she got a job as a CNA at an assisted living community.  The theft charge threatened her job, because if you are convicted of a theft crime, you cannot work with vulnerable populations (even though the mentality to steal nail polish from Walmart is dramatically different from that required to steal jewelry or medicine from a bed bound grandma).

Thus the charge not only threatened my client’s freedom, and finances but also her job – which theoretically is contrary to the rehabilitative philosophy  of criminal prosecution which guides the criminal justice system.

Thankfully, we were able to persuade the prosecutor to amend the charge and allow my client to take what is called a deferred sentence (meaning, she pleads guilty to a charge, and if she pays all her fines, completes a consumer awareness class and maintains law abiding behavior for a year, the sentence will result in a dismissal of the charge.)  The prosecutor did not have to do that, however.  With prosecutors, it’s hit or miss.  And some are really immoral.

The State Legislature has passed a law called a “compromise of misdemeanor” which basically says that if the defendant pays restitution and the victim is satisfied, the victim may sign a document expressing their satisfaction and asking the Court to dismiss the case.

When dealing with mom and pop institutions or private citizens, this is often effective.  Most people just want to be repaid for the harm they incurred.  But the primary victims of theft in the jurisdictions where I practice (at least the leaders for prosecution) are Walmart, Home Depot, Fred Meyers, Safeway, Winco and Kohls ….all of which expressly refuse to accept anything less than prosecution.

Combined, these six businesses represent at least 90% of all charged thefts I see in my office.

While this may reflect the desire to deter shoplifting, it doesn’t appear to work. If anything, from the Defendant’s perspective, a theft conviction makes them largely unemployable – because “thou shalt not steal” is a universal value that few employers are willing to overlook.  This in turns makes subsequent thefts feel like a necessity for many clients – no matter what sentence is imposed.  Some even  get charged with burglary if they shoplift from the same store (or chain) twice: a class B felony with a maximum sentence of ten years in prison.

And from the community’s perspective, prosecuting someone who almost got away with $5.99 worth of nail polish is by no means cost effective.  The cost of arresting and jailing her for a day, charging the case, appointing the Law Office of Chris Van Vechten as a public defender, securing a conviction and monitoring her on probation for up to two years is significantly disproportionate to the harm caused (if any, since technically no injury was incurred and no restitution can be made).

The City had to pay the Law Office – just the Law Office – $185 to represent her…that’s 30 times the value of the item she stole.  And remember, Walmart recovered its merchandise.  And while the court did order our client to pay some costs (approximately $150) that money will be paid in small installments over the course of a year (if it’s paid at all….statistically, there’s a great chance the client will be sent to jail for inability to pay the fine and the City will never collect.)

We wish we could say this case is an anomaly, but actually it’s not.

I once defended a client accused of stealing a single aspirin from a Walgreens.  According to the police, he told them he had a headache.  Every winter I get half a dozen homeless clients caught trying to shoplift winter clothing.  I once defended a client caught stealing 4 rolls of toilet paper valued at less than $10.  Another who stole a bottle of vodka valued at less than $30.  Another who tried to put some steaks into her purse and get out of Safeway.  And of course cosmetics are a popular thing to shoplift from any store because they are small and easily concealable.

While nothing these people did is appropriate, it’s not really a matter of public safety so much as defending the integrity of the law.  And as an attorney I get and approves of that.  But the sheer cost of it all dwarfs the harm or any point our community is trying to make in prosecuting these types of cases.

So since we are at the start of a new legislative session, The Law Office of Chris Van Vechten would like to propose passing a law creating a new category of theft that constitutes an infraction and mandating that State and Municipal Prosecutors may charge select acts of theft as infractions instead of crimes.

This by no means legalizes theft.  An infraction (such as a traffic ticket) carries with it a fine, but not jail, so there is no right to a public defender and  no need for probation (automatic savings right there).  The standard of proof is preponderance of the evidence, rather than reasonable doubt (making the prosecution’s case easier).  There is no jury trial (further savings).  Yet there is punishment for those who don’t pay their infractions (including license suspension which can then result in criminal charges if the defendant continues to drive.)  So no one would be getting off easy here.

This is what we propose

1)  If the value of the item stolen was less than $100; and

2)  If the property is recovered undamaged (such as the nail polish in the aforementioned example);  and 

3)  If the defendant has not been convicted of any species of theft once in the past 7 years.

The prosecuting attorney’s office may only charge the defendant with “unauthorized assumption of property” an infraction.  If the defendant has previously been convicted or found to have committed unauthorized assumption of property within the past 7 years, they have the discretion to charge the case as a crime.

This would save the community significant money, because infractions do not result in jail time and do not require the government to provide an attorney to defend those who cannot afford representation.  Yet offenders would nevertheless be held accountable, required to pay a fine, and if they failed to do so they would incur the same sort of penalties that follow failure to pay traffic infractions, which ultimately can lead to criminal charges.

It is the hope of the Law Office of Chris Van Vechten that readers of this post will be inspired to share the idea with their local and state representatives, and that they in turn will be inspired to work toward the creation of a smarter and saner criminal justice system.