Tuesday, March 15, 2011

Copper theft: Case study in failed criminal penalty enhancements

Every two years, Texas legislators troop to the House Criminal Jurisprudence and Senate Criminal Justice Committees to promote a seemingly endless array of penalty "enhancements," i.e., creating new crimes or increasing the penalties for existing ones in a one-way ratchet that has filled the prison system to capacity. But none of those legislators ever come back to tell us whether those "enhancements" solved the problem, and for the most part they almost universally fail.

A great example is copper and other scrap metal theft. In 2007, then House Criminal Jurisprudence Committee Chairman Aaron Peña carried legislation that boosted penalties of any amount of copper and other industrial metals to a state jail felony, no matter what its value, at the behest of construction and utility companies who cited growing metal thefts to sell for scrap. Since then, the amount of such theft has continued to rise unabated, seemingly driven almost entirely by the price of copper and other metals and entirely undeterred by the new felony status of stealing a few dollars worth of wire. Apparently the people willing to risk their lives pulling wire out electrical boxes didn't read their pocket copies of the penal code to pick up on the increased penalties (surprise, surprise!). As evidence, check out this recent report on the subject from KHOU-TV out of Houston titled "Copper Theft Plaguing Local Homebuilders":

So the new felony for stealing any amount of copper had no apparent effect at all. Why? Because the problem wasn't that the penalty was too low, but that police are using ineffective tactics. Targeting homeless copper thieves and locking them up is fruitless. Clearance rates for this crime are extremely low, and there's always another scrap metal thief where the last one came from, and will be as long as there are desperate people and a robust market for the stolen property. This is the wrong tactic: Instead, police should be targeting the handful of scrap metal dealers who provide the market for criminals of this sort in undercover stings. Then, if there's no place to sell their stolen wares, the thieves will move onto something else.

Many crimes for which legislators seek enhancements year after year - scrap metal theft, graffiti, car burglaries, etc. - are offenses with extremely low clearance rates. They're not solved very often, so on the rare occasions they are, authorities seek the chance to show the public how "tuff" they are. But the smart thing to do in such instances is focus on strategies that increase clearance rates so offenders are more likely to be caught, or in cases like metal theft, find ways to disrupt the black market that get more bang for the buck given scarce criminal justice resources.

Bottom line: The copper theft example shows that making things that are already illegal more illegal usually isn't a deterrent to people who're willing to do illegal things. Somehow, though, whenever the next problem rolls around, legislators seem to forget that lesson and reach for the same, tired non-solutions.



Julia B. said...

Do low clearance rates make the occasional sentencing "unusual punishment?"

jdgalt said...

It seems to me that in crimes such as graffiti and copper theft, what matters is not deterrence but getting the damage repaired. Thus I suggest fines, set high enough that the few people convicted wind up paying for all the damage done by similar crimes. (This is quite fair if you think about it: it means that punishment times the probability of suffering it equals the damage done by the average perp.)

Alternatively, teens who apply graffiti could be required to spend the next six months or a year on a work gang, cleaning up graffiti.

The Homeless Cowboy said...

I agree with Grits as far as focusing on the dealers, speaking as someone with a little experience, the dealers make it very attractive to bring them copper and it is very easy to tell that the material in question has just been hastily removed from somewhere. They were doing a lot of business in manhole covers in the Houston area a few years ago, people would steal them in Houston or Sugar land and drive them to Montgomery County to sell them. It was not until they required dealers to have supporting documentation that this problem slowed down. If it is available there is someone who will steal it, the solution is to make it hard to fence thereby reducing the demand.

Anonymous said...

Grits, I would go farther and say that just a handful of scrap dealers are responsible and do the right thing. That is why we should require identification of the seller and documentation simular to what is required of pawn shops be sent to or available for inspection by law enforcement.

Gritsforbreakfast said...

Exactly, 12:41, the problem is a tactical failure, it was never a lack of punishment options.

Anonymous said...

@ 12:41 wrote That is why we should require identification of the seller and documentation simular to what is required of pawn shops be sent to or available for inspection by law enforcement.

It is already required. Read Occupations Code Chapter 1956.

Anonymous said...

More brave finger pointing. Bravo!

Gritsforbreakfast said...

Wow, an anonymous critic questioning my "bravery" but too cowardly to put their own name on their opinions. How original.

How can they not see the irony?

Anonymous said...

Charles from Tulia

"Stealing any amount of copper." So if I pick up a copper penny off the floor in Wal-Mart I have committed a state jail felony. Usually I would pick it up, in spite of my joints not being as limber as they once were.

On a more serious note: out here in West Texas, homebuilders losing electrical wire is not as serious as farmers having the wiring stripped from their center pivot sprinklers. Rewiring a quarter mile sprinkler can run into thousands of dollars. Again, catching the thief(ves)is problematic.