In 1993, Texas set the current threshold for felony theft at $1,500 for a state jail felony - below that, theft receives misdemeanor charges that don't involve state prison time. The jump to the next offense category is quite significant - someone must steal more than $20,000 to be charged with a third degree felony.
However, adjusting for inflation, $1,500 in 1993 amounts to $2,208 in 2008 dollars. Indeed, "if you were to buy exactly the same products in 2008 and 1993, they would cost you $1500 and $1026.91 respectively." So over time, less serious thefts have come to be categorized as felonies that would have been misdemeanors at the time the law established the current threshold.
That's both unfair to defendants - who may receive different punishments for comparable offenses - and also results in an incremental boost in the incarceration rate over time as less serious thefts become felonies.
Why not index theft levels to to the Consumer Price Index and have it adjusted automatically every year instead of changing it every couple of decades when the Legislature gets around to it? That would make more sense both from an equal protection standpoint and from the perspective of fiscal austerity, limiting expensive incarceration in state prisons to thieves whose crimes would have fit the definition of felony theft at the time it was defined by the Legislature.
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11 comments:
Should we do this too for the guarantee in federal civil cases of the right to jury trials? Also, why not index fixed fines (for things like speeding and whatnot) to inflation as well? Presumably these rates are chosen at the time they're set to a level that makes sense for the contemporary economy. Why not let them float so that the pain level is tracking inflation, too?
Billb, If the threshold for federal civil trials could be done by statute instead of constitutional amendment, that would be a reasonable suggestion.
On traffic fines, they have already been jacked up so high they've become counterproductive thanks to the Driver Responsibility surcharge. That has boosted penalties at a greater rate than inflation for the affected offenses, making that suggestion redundant and moot in practice.
Good point, Billb. How long has it been that the 10,000 maximum for felony fines has been the law?
While we're at it, it sure would be nice if Congress would index the Alternative Minimum Tax threshold to inflation as well! Don't you agree, Grits?
I don't have any problem with adjusting the AMT to inflation to reduce bracket creep, 7:25. What have I ever written here that would make you think otherwise?
OTOH, raising felony fines is pointless because most defendants are indigent and can't pay them at the current amounts. Personally, I'd rather peg fines based on ability to pay, with higher-income offenders paying more.
Grits 7:42-"I'd rather base fines on ability to pay . . ." Socialism! Socialism! Maybe even Bolshevish! You were probably born in Kenya! (Please note the position of tongue in relation to cheek.)
I'm sure you're right, Charles, that some would consider the notion "socialism," but indexing fines to income makes a lot of sense to me, like the Finnish day fine system.
Grits,
Love the blog as ever, but sometimes, liberal prosecutor as I may be, I do roll my eyes. Or, rather, they roll themselves automatically. Don't you think it'd cost a lot to keep updating the code to change the levels? To retrain and inform people? I mean, is this such a big deal when we have so many other things to worry about (did you hear that woman Palin? Someone let her into Texas!).
I'm sure you probably have a point, but it's Monday, I'm trying to keep up with my case load, and all I can think, when it comes to "fairness" towards thieves is: "How about they just stop stealing?"
Grits, I agree that indexing fines to ability to pay makes sense. That's already done in some parts of the justice system, i.e., I think it's supposed to be considered in setting bail. As I've argued in other venues, our economy is somewhere on the socialism-free market capitalism continuum. The argument is about where we should be on that continuum. I hope you noticed the tongue in cheek aspect of my previous comment.
DAC asks: "Don't you think it'd cost a lot to keep updating the code to change the levels?"
Of course not, you're the one whose comments deserve eyerolling! They already update the code after every legislative session. Texas created 59 new felonies during the last legislative session - should we believe prosecutors are too stupid or ignorant to keep up with the changes? That's not my view but it's the reasoning your comment relies upon.
Further, once indexing becomes automatic, the new thresholds would simply be published annually and everybody would know what they are. No big deal.
As far as "fairness," to thieves or any other defendant, are you really saying you believe it's okay that stealing the exact same item, with no change in the law by the Lege, gets different penalties for different people? You really don't see the equal protection issue? I realize y'all don't have a 14th amendment in the UK, but you've been practicing here long enough I'd think you'd be aware of the concept! ;)
Frankly, this is a solution in search of a problem. Those are the cutoff levels, of course, but I've yet to see someone steal 500.01 or 1500.00 and if they are that's nearly always a bargaining position for plea bargains (I've dropped levels on more than one case.) While the cutoffs should be revisited, it really makes more sense to do so on say a 10 year basis than bi-annually. There is inflationary creep, but we're not Zimbabwe yet. A biennial review, mathematically indexed, would end up with some really bizarre cutoffs. And it's not just prosecutors that need to know the cutoff amounts- an endless number of clerks, police officers, and store asset protection monkeys need to know what they are in order to make appropriate classifications. Sure, everyone'd all adjust, but let's not go through that every other year please. Additionally, your point about the new crimes seems a bit confused- it's a bad thing that the ledge keeps changing and creating new crimes, so we should, uh, change and create new crimes?
"are you really saying you believe it's okay that stealing the exact same item, with no change in the law by the Lege, gets different penalties for different people? You really don't see the equal protection issue?"
I dunno- ask people who stole something at Wal-Mart in October, before it all went on sale for Christmas.
@2:26 writes: "There is inflationary creep, but we're not Zimbabwe yet."
Of course, we just doubled the money supply in the last year, so I'd say the prospects for near-term inflation are pretty good. And while you minimize the concern, $1,500 today is the equivalent of $1,027 at the time the statute was written. That's a significant difference, no?
As for: "And it's not just prosecutors that need to know the cutoff amounts- an endless number of clerks, police officers, and store asset protection monkeys need to know what they are in order to make appropriate classifications"
Think of all the people who need to make decisions bases on Federal Poverty Levels, which change annually. If that causes no great logistical problem, this wouldn't either.
RE: new crimes, I fail to understand your confusion or what you see as contradictory in my positions. I'm not advocating creating any "new crime." I'm advocating reality-based adjustments to existing ones so that punishment ranges match the original legislative intent.
Finally, you call this a "solution in search of a problem," but at a time when states are reducing inmate populations and closing prisons because of cost, keeping petty offenders out of the big house directly addresses an issue the Lege has been struggling with for the last four sessions - keeping incarceration costs down. This is just another way to reduce those costs at the margins without harming public safety.
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