Interim study looks at retail theft, but lowering the felony threshold is not the solution (Capitol Update)

Last week Representative Rande Worthen, R-Lawton, presented an interim study on organized theft from retail stores in his Judiciary-Criminal Committee that he chairs. Rep. Worthen was an assistant district attorney in Lawton for 29 years before being elected to the House in 2016 and generally views criminal justice issues through the lens of his background as a prosecutor. 

Presenters for the study were Kyle Cabelka, the District Attorney for Comanche and Cotton Counties; officers from the organized retail theft division in the Oklahoma City Police Department; and an official from Home Depot who supervises theft investigations for stores in Texas and Oklahoma. DA Cabelka expressed his frustrations that the law passed by a vote of the people in 2016 changing the threshold for felony theft from $500 to $1,000 left him with fewer options for dealing with retail thefts. His main goal seemed to be getting restitution for the retailers, and he indicated that felony probation was the best way to make that happen. He feels the threat of jail time in the local jail is not enough of a threat to deter the offenders.

The OKCPD officers and the Home Depot official were more concerned with organizations of thieves who steal in large quantities from stores and sell to “fences” who, in turn, sell the stolen property as an illegal business. They made the point that many of these organizations are also involved in other types of criminal activity.

The presenters made their case that large-scale organized retail theft is a problem. But the question is, what is the solution? It seems the first response by some is to return the felony threshold to $500. It’s very doubtful this is the answer. One of the officers claimed thieves come to Oklahoma from other states because of our “lax” laws. But the felony thresholds for theft in surrounding states are: Texas $1,500, Kansas $1,000, Colorado $2,000, and Arkansas $1,000. Only Missouri at $750 and New Mexico at $500 are lower than Oklahoma’s $1,000.

Most of the organized theft the committee heard about was well over the $1,000 threshold. This type of organized crime needs to be dealt with harshly but shouldn’t be conflated with small-time thieves. The continuing problem for communities everywhere is what to do with the small-time thieves. It’s a problem, and it’s maddening. Most people hate a thief, as they should. But lowering the net back to $500 to gather in small-time thieves, charge them with a felony, put them on probation, then revoke the probation, then send them to prison, and then do it all over again is exactly what the people voted against. It doesn’t solve the problem, and it fills the prisons with non-violent offenders costing taxpayers a lot of money.

Part of the problem is the new model of retail with large self-service stores and fewer employees. It’s easier to steal. I’m not blaming the victim, just saying that’s part of the problem. I don’t pretend to know the answers. But it seems that a better way would be to use the misdemeanor punishments that are on the books. First, try to get community resources to people. In larger counties, there could be special courts for this. But then put repeat thieves in jail. Most county jails are not good places to be. If that’s not practical because the jails are overcrowded it’s likely because they are filled with people awaiting trial. Make room for the convicted thieves if that’s the priority.   

The old saying, “when all you have is a hammer everything looks like a nail” comes to mind. Making more felons out of small-time thieves hasn’t worked in the past, and it’s made Oklahoma a top incarcerator. Surely there are model programs that can be tried. If not, there is certainly a market here for some innovation.


Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.

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