In for a penny, in for a state jail felony

The Fort Worth Star-Telegram has a pair of stories from the Texas District and County Attorney Association's legislative briefings, which have been going on the past few weeks. This story critiques a change in the statute on scrap metal theft that makes it a state jail felony literally to steal one penny, or any other item with the tiniest iota of copper (or other designated metals) in it."In their zeal to get after some of these scrap-metal scavengers, they really swung the pendulum pretty far to the other side,"said TDCAA lobbyist Shannon Edmonds. A staffer for the author of the bill, state Sen. Royce West, said they would "rely on the reasonable discretion of the prosecutors," but the scrap-metal statute was already ineffective and over-the-top. Now it's just absurd.

Another article focuses on new legislation the prosecutors' association thinks is unworkable. The story opens:

Texas prosecutors may not enforce new laws passed by the Legislature this year dealing with human trafficking, sexting and domestic abuse because of problems with how they were written.

The Texas District & County Attorney Association, an Austin group that trains prosecutors, has started warning members that some new laws have loopholes or mistakes that may make them unworkable from a prosecutorial standpoint. Shannon Edmonds, the group's legislative guru, is widely viewed as an influential analyst in the state's legal community.

In particular, bills expanding protective orders to include sex trafficking victims and pets are likely unenforceable, and a statute creating a new crime for "sexting" will lead to absurd results. On the sexting statute:

Edmonds is advising them to largely ignore the law because of problems including vague descriptions and conflicting rules.

"It's a bill written by people who don't understand the criminal-justice system," Edmonds said. "Prosecutors and police officers are going to have to use their discretion and ignore the absurdity that was written into the law."

Among the problems with the sexting law, Edmonds said, is that it creates a Catch-22 for adults who come across any explicit photos that were involved in an incident. The law tries to block such adults from being charged with possessing child pornography if they are holding on to the material to aid in an investigation, but Edmonds said it wasn't written properly.

"You could either destroy the evidence and be prosecuted for destruction of evidence or you could not destroy it and arguably be prosecuted for child pornography," Edmonds said, though he added that it's unlikely that a prosecutor would apply pornography charges in such a situation.

The law's lead author, Sen. Kirk Watson, D-Austin, said in a statement that he and other lawmakers worked with local prosecutors to "ensure this solution was sensible, appropriate and, most of all, workable."

That the group didn't bring up their concern earlier is "surprising and disappointing," Watson said.

The sexting bill was always a solution looking for a problem. Supposedly it was passed so teens involved in sexting wouldn't  be charged with child pornography. But when I attended the TDCAA briefing in Austin last month, Edmonds asked the roomful of prosecutors how many had filed child porn charges in sexting cases, and none raised their hands. Edmonds said TDCAA has never heard of such a case.

As reported previously on Grits, Edmonds counted 53 new crimes created by the Legislature this session, not including penalty increases on existing laws. Few if any of those new criminal laws were actually needed, in this author's view, except for a handful aimed at fixing legislative screwups from prior sessions like the ones Shannon described on protective orders, sexting, etc.. At this point the legislature expands the scope of criminal law every session more out of habit than necessity.

Scrap metal thefts rise despite steep penalties for theft: Best deterrent is business regulation

For years, Grits has blasted the legislative impulse to increase criminal penalties as the solution to every purported problem, and one of the best examples of how that strategy often fails to achieve its goals may be found in the case of scrap metal thefts. In 2007, the Texas Legislature made theft of any quantity of copper, aluminum or bronze a state jail felony. Counterintuitively, though, soon thereafter metal thefts skyrocketed with the rise of copper and other commodity prices. Many such thieves are homeless people who may risk their lives to steal a few pounds of copper, and as soon as one is arrested, someone else sprouts up to take their place.

By contrast, Grits has maintained that crime prevention efforts would get much more bang for the buck by going after scrap metal vendors instead of boosting penalties only on those who sell to them. In Austin last week, KVUE reports that police finally sought to address that portion of the equation, which is a far more manageable task. There are hundreds of potential copper thieves in the city (it's often a crime of opportunity), but only nine vendors in Austin who buy wholesale copper, reports the TV station. And when APD brought them scrap metal that should have raised red flags, none of them passed the test:

For the first time, APD officers began going undercover this spring, trying to resell copper to local metal recycling businesses.

It wasn’t just any copper officers showed up with. Officers presented busses, heavy copper plates used solely on cell phone towers.  The busses along with telephone cable wiring were featured in photographs in fliers sent out to every local metal recycling business almost a month before the special sting operation.

When undercover officers went out, they were surprised when seven out of the nine metal recycling businesses they visited in Austin actually bought the same type of copper that police warned them could be stolen.

“My goal is not to cause problems for the metal shops or pawn shops to cost them more money to do the things that we need, but when these guys see everyday how many victims we have, I've got no choice,” added Sgt. Socha.

Seven of the businesses were fined for non-compliance. Two other businesses received tickets for not informing police about the potentially stolen copper, which is now a requirement under a new city ordinance.

So of the nine businesses, seven were fined and two were given Class C tickets under a new city ordinance. But consider: Any average person bringing in a penny's worth of stolen scrap copper for recycling would be guilty of a state jail felony. So one party in the transaction is a felon, under Texas law, while their partner in the exchange faces virtually no liability at all. That inequity assures scrap thefts will continue.

Boosting penalties for the poorest among us - and most copper thieves are a pretty sad and marginal lot - won't solve this problem because market forces are more powerful than criminal laws when it comes to influencing human behavior. As long as buyers exist for stolen scrap metal and copper prices are high, state-jail felony prosecutions of sellers won't be a great deterrent. By contrast, there are only a handful of scap metal purchasers in any given city, and these type of undercover stings are the best way to reduce the practice.

That said, it's remarkable that nobody in Austin was charged with anything higher than a Class C misdemeanor, since theoretically anyone fencing stolen goods should be subject to more serious criminal penalties. On the prosecutors' user forum a few years back, prosecutor Ted Wilson described an undercover sting in Houston that secured more serious charges against the wholesalers:

Undercover police officers would go to scrap metal dealers posing as employees of an air conditioning company. They told the operators of several scrap metal places that they wanted to sell the coils from air conditioning units. But, they would ask if the dealer ever did business with the company that hey "purportedly" worked for. They didn't want someone from their company or thier boss to show up while they were trying to sell the coils. They made it clear that they were stealing the coils from their employer and wanted cash for the copper in the coils. All of this was recorded. They wouldn''t arrest anyone at that time but just sell them the coils. After they visited several places on more than one occasion each selling "stolen" coils to them the officers then met with me and I drafted search warrants of each location for documentation of the purchase of the items. Texas law requires that they document the purchases. In every purchase, the owners of the scrap metal dealership would fill out a receipt, as required by Texas law, but they put in phony names and dates, which we could substantiate from the taped recordings of the purchase.

On the day that they wanted to run the search warrants, we got a large spool with several thousands of dollars worth of copper. The officers would go to the first place, tell the people the spool was stolen, the owners would buy it anyway, and the officers would arrest them for felony theft based on the value of the large spool that they just "bought". Then they ran the search warrant at the location for the records and other documents that I put in the warrant.

Scrap dealers caught in the Houston sting would be eligible for much more serious criminal penalties for fencing stolen goods, while in Austin police openly declare their "goal is not to cause problems for the metal shops or pawn shops." What an unusual declaration: What other criminal actors can you imagine police saying they don't want to cause problems? And meanwhile, the dealers' partners in the transactions are routinely prosecuted to the fullest extent of the law. Enforcement fails in this case because law enforcement only targets one party in the transaction - the thieves themselves - but ignores malfeasance by a more privileged class of monied criminals for whom police don't want to cause trouble.

Scrap dealers are the key to stopping metal theft because they're easier to target and subject to regulation. If they refused to purchase stolen goods, thieves wouldn't have a market for their wares and thefts would soon stop. But then, why solve problems with the law when making it dysfunctional serves as a virtual full-employment act for police and prosecutors? There are a near infinite number of potential metal thieves compared to just a handful of dealers, so focusing enforcement exclusively on small-time street-level thefts - while giving their dealer-partners a wink and a slap on the wrist - ensures the problem will persist.

As is often the case with such specialized enhancements, business regulation, not criminal penalties, would be the most sensible way to reduce this problem. Dealers must keep logs of scrap metal sales and if regulators focused on vetting their customers in a more systematic fashion, those buying stolen goods could be easily detected. By contrast, this sting by Austin police is the first time the city has pursued the demand side of the equation after years of arresting their suppliers. It's so obviously the smarter approach, it amazes me that it's taken this long for Austin PD to pursue it.

See related Grits posts:

• Felony rap for stealing copper wire hasn't stopped thefts
• Copper theft: Case study in failed criminal penalty enhancements
• Penalty increases for scrap metal thieves a bust; better police tactics needed more than harsher penalties
• Messages promoting sentence enhancements may increase crime

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.

RELATED:

• Penalty for scrap metal thieve a bust; better police tactics needed
• Bigger priority on vehicle burglaries: Solving crimes or harsher punishments?

Penalty increases for scrap metal thieves a bust; better police tactics needed more than harsher penalties

Increasing penalties for stealing small amounts of copper and other industrial metals have done nothing to slow the rate of thefts in the Merroplex, reported the Dallas News ("Dallas detectives battle metal thieves," May 31):

From 2005 to 2007, metal thefts in Dallas jumped 227 percent.

In 2006, Dallas police reported 2,415 metal thefts. In 2007, they reported 3,339. And through the first three months of this year, police reported 691.

Meanwhile, thefts across North Texas cost Oncor Electric Delivery about $1 million in losses last year, company spokeswoman Carol Peters said. Various deterrents, including increased surveillance, seem to have slowed the crimes, though the company still estimates $250,000 in theft-related losses so far this year, she said.

"It continues to be an issue," Ms. Peters said. "Obviously there can be an outage involved. It's a huge safety issue. The perpetrator is risking his or her life stealing wire if it's live." ...

While the market price of copper fluctuates on a daily basis, it has risen almost 18 percent since the beginning of the year, closing at $3.61 per pound Friday. The loads sellers bring to recycling yards vary from a few pounds to a few hundred pounds of metals, police say.

For the victims, the cost can be more devastating than the price it yields for thieves.

John Davis, a Lake Highlands dentist, said he has lost five air-conditioning units in the last six months.

"Everything short of having an armed guard in the back alley is not working," Dr. Davis said. He estimates that he has spent $15,000 to $20,000 to replace the units and two stolen security cameras, as well as to add welded cages around the remaining air-conditioning units.

In 2007, House Criminal Jurisprudence Chairman Aaron Peña pushed through legislation to make theft of any amount of copper, aluminum or bronze a state jail felony, regardless of the value of the stolen property. Peña argued the epidemic of metal thefts constituted a special case, and the so-called "enhancement" (a legislative euphemism for criminal penalty increases) would deter thieves by making them "think twice" about the consequences.

Now we know that theory doesn't work. Most metal thieves are homeless people, addicts, and others with little to lose. As I've wondered previously, "If someone is a) uneducated, and b) willing to risk their lives, why would legislators think jacking up the penalty to a felony (as opposed to more vigorously enforcing misdemeanor statutes), would do anything but give them 'three hots and a cot' for a longer period on the taxpayers' dime?"

Rather than help solve the problem of metal thievery, more thefts occurred since the new statute was enacted. IMO that's because the idea behind the law was based on a flawed economic model: That penalties are a "cost" for offenders, so raising it reduces crime by raising the price paid for committing it. When you're homeless and so desperate you're willing to risk electrocution to steal a $50 worth of copper wire, that economic model collapses. No can provide incentives strong enough to counter starvation.

This is a circumstance where changing tactics is more important than changing laws. What's really needed is better enforcement against the handful of recycling businesses that purchase scrap metal, a much more accessible target that's more likely to comply with the laws if they're enforced. Earlier this year, a comment at the User Forum on the DA Association's website described a strategy used in Houston that seems more likely to yield results:

Undercover police officers would go to scrap metal dealers posing as employees of an air conditioning company. They told the operators of several scrap metal places that they wanted to sell the coils from air conditioning units. But, they would ask if the dealer ever did business with the company that hey "purportedly" worked for. They didn't want someone from their company or their boss to show up while they were trying to sell the coils. They made it clear that they were stealing the coils from their employer and wanted cash for the copper in the coils. All of this was recorded. They wouldn''t arrest anyone at that time but just sell them the coils. After they visited several places on more than one occasion each selling "stolen" coils to them the officers then met with me and I drafted search warrants of each location for documentation of the purchase of the items. Texas law requires that they document the purchases. In every purchase, the owners of the scrap metal dealership would fill out a receipt, as required by Texas law, but they put in phony names and dates, which we could substantiate from the taped recordings of the purchase.

If recyclers won't purchase stolen scrap metal, thieves will stop stealing it. Simple as that. There was no sense in increasing penalties for metal thieves, and doing so hasn't reduced crime nearly as much as it would just to enforce existing, un-"enhanced" laws against scrap metal dealers.

Felony rap for stealing copper wire hasn't stopped thefts

Laws increasing criminal penalties tend to be a one-way ratchet; they only get harsher, they're seldom reduced.

An example that will likely be with us for a while is the new law making theft of metal wire a state jail felony - one of House Criminal Jurisprudence Chairman Aaron Peña's many pet enhancements last session. Peña's bill made stealing copper, aluminum or bronze wire a felony regardless of the value of the wire! But the law apparently failed to scare away would-be copper thieves as its proponents predicted.

I say that because on Wednesday afternoon, the lights went out in the Grits household, shutting down all computer equipment (I lost a half-finished blog post, actually), lights, washing machine, and everything else in the house. Looking outside, I quickly realized the whole neighborhood had gone dark.

The blackout just lasted a couple of hours, but it wasn't till yesterday evening I learned the cause: A thief electrocuted himself pretty severely trying to steal copper wire from an electrical substation. He got zapped with 80,000 Volts, if you can imagine- about 7,300 homes including mine lost their power.

In committee hearings over this bill last year, Peña and supporters said the legislation would "send a message" that dissuaded copper theft. But who has received it?

Instead of passing laws like this one that eat up more prison beds, perhaps that money would have been better spent renting a billboard because this fellow didn't get the "message." An energy company spokesman told the Statesman:

"Unfortunately, this incident will serve as a type of illustration of what can potentially occur," Clark said. "It's a pretty difficult problem when a person is willing to totally disregard their safety and go into a substation because, generally speaking, the people who are doing this type of thing are not knowledgeable and could not come close to recognizing the potential dangers."

A significant percentage of scrap metal thieves also number among the homeless population, which brings with it a whole 'nuther range of barriers to preventing these thefts. That's important not because it excuses bad behavior, but because it provides information that helps craft a solution. Obviously I don't want my electricity going off because of copper thieves; but at the same time, as a practical matter neither did the "enhanced" penalty prevent that from happening.

If someone is a) uneducated, and b) willing to risk their lives, why would legislators think jacking up the penalty to a felony (as opposed to more vigorously enforcing misdemeanor statutes), would do anything but give them "three hots and a cot" for a longer period on the taxpayers' dime?

That doesn't make anyone safer, but it sure helps fill the prisons faster, particularly when you "enhance" a misdemeanor to a felony, as Chairman Peña's bill did. A better solution in my view is to focus on vendors who purchase scrap metal illicitly. (See the final item in this post.) Dry up the black market on the demand side, and they'll soon have little reason to steal.

I don't know what the ultimate solution(s) to copper theft will turn out to be - probably in the long term, shifting to cheaper wire made of blended metals that don't have the same resale value. (Camera systems, touted in the Statesman clip, require extra police resources for rapid response or they're pretty worthless in such cases.)

There's a decent chance that the homeless guy or drug addict who risks their life to steal copper already have enough obstacles to success in life without adding a felony beef; it's not like copper thieves couldn't be punished - with up to a year in jail - under the law as it was before. Criminal laws work best when they focus on outcomes in the real world, not the "message" some pol claims they'll send on the campaign trail.

Despite Texas prison overcrowding, Criminal Jurisprudence keeps hearing enhancements

Texas' full prisons result in large part from increased penalty lengths for everything from the most horrific crimes to the most mundane. This afternoon's agenda at the Texas House Criminal Jurisprudence Committee hearing shows how that happens.

While some in the Legislature recognize that it's time to shift gears away from mass incarceration, especially for low-level offenders, so far Criminal Jurisprudence isn't doing its part to reduce Texas prison and jail populations. Instead they've moved this session to boost already-stiff penalties for child molesters, approved life sentences for certain drunk driving deaths, and will likely increase penalties for burglary of a vehicle. Even if Chairmans Madden and Whitmire successfully strengthen the probation system and rein in the out of control parole board, Texas' prison population will continue to burst at the seams if the Lege keeps indulging in its biennial ritual of boosting criminal penalties.

Today the Criminal Jurisprudence Committee will hear a handful of good bills along with a number of additional penalty enhancements and nickel and dime punitive restrictions on offenders. Here are some of the good bills of interest up in the House Criminal Jurisprudence Committee today:

• HB 312 by Turner: Creates an evidentiary standard (preponderance of the evidence) by which the state must prove a defendant was "able but unwilling" to pay probation fees. Currently non-payment is frequently taken as prima facie evidence of non-compliance.

• HB 403 by Hodge: Would release parolees from supervision who successfully complete parole board requirements for participation in drug and alcohol treatment programs.

• HB 800 by Dutton: Provides for expunction of records in cases resulting in deferred adjudication where a defendant successfully completes supervision requirements.

And then, the enhancements:

• HB 126 by Delisi: Adds tampering with a government record to the list of offenses that may be enhanced as part of "organized criminal activity."
  

• HB 1766 by Peña: Enhances the penalty for petty theft of copper, aluminum or bronze wiring to a state jail felony regardless of the value of the wire.

• HB 347 by Hamilton: Enhances the penalty for harboring a runaway child from a Class A misdemeanor to a state jail felony of the harborer is a registered sex offender.

• HB 1093 by Geren: Expands the area around a funeral service where "picketing" is prohibited.

These four bills all have one thing in common: The Legislative Budget Board says they won't cost the state any money. That's a politicized fiction. Of course keeping more people in prison longer costs more money - any fool can see that.

By giving these bills fiscal notes of zero, LBB would have legislators believe their punitive impulse incurs no financial costs. That's why I said in 2005 that LBB is responsible for "red ink" in Texas prison budget - they've consistently understated costs of penalty enhancements for many decades in just this way.

In particular, the bills by Peña and Hamilton expressly increase penalties from a misdemeanor to a state jail felony, shifting incarceration costs from counties to state government. But those costs aren't recognized for purposes of state budget making. I wish I knew why.

In the dumb bills with no purpose category, we find HB 1480 by Castro, which would add to the list of information sex offenders must report the URLs of websites they visit or "intend to visit" every day. I don't know about you but my web surfing habits shift over time - sometimes day to day - and I don't think gathering such data will provide useful information for law enforcement or serve any purpose than to give another opportunity for registrants to commit a "technical" violation through incorrect reporting.

Finally, I'd be remiss if I didn't mention another problematic bill the committee will hear today by Rep. Phil King: HB 628. This bill would allow the lead police investigator in criminal cases to sit at the prosecution table throughout a trial, even when they may be called as a witness. The prohibition on witnesses hearing other witnesses' testimony in the Rules of Evidence exists for good reason, and has never inhibited the prosecution of crime in this state. I see no reason to risk tainting police testimony in the manner the current Rules are designed to prevent. This falls under the category of "If it ain't broke, don't fix it."

Those are the Criminal Jurisprudence highlights this week - see the full committee agenda here, and you can watch the hearing today at 2 p.m. or on adjournment of the full House.