Rolling back SQ 780 would be expensive and not address underlying problems (Capitol Update)

There are two bills working their way through the legislature this year that would change the penalty for theft from a retailer established by passage of SQ 780 in 2016 with a margin of 235,053 votes. The two bills are House Bill 3694 and Senate Bill 1450.

State Question 780 raised the felony threshold for conviction of property theft, including theft from a retailer, from $500 to $1,000. The penalty for a first or second conviction is a misdemeanor punishable by 30 days in the county jail or a fine of $10 to $100. On a third or subsequent conviction, the penalty goes to up to one year in the county jail. If the property is valued at more than $1,000, under SQ 780, the offense became a felony punishable by up to five years in custody of the Department of Corrections. 

In 2018, the legislature changed the law passed in SQ 780 adding a new provision that allowed prosecutors to aggregate in one charge all the thefts from retailers alleged to have been committed by a person within a 90-day period, which would increase the chance of reaching the $1,000 threshold and elevating criminal charges to the felony level.

Section 1 of SQ 780 provided as follows: “The people of the State of Oklahoma find the fact that Oklahoma has the second-highest incarceration rate in the country, and the highest incarceration rate for women, is inconsistent with Oklahoma values, and drains resources away from investments that can do more to promote public safety. Therefore, the people intend, in enacting this initiative measure, to implement criminal justice reforms that: (1) stop wasting taxpayer money keeping people who commit low level offenses behind bars for years; and (2) saddle fewer people who commit low-level offenses with felony convictions that will follow them through life and prevent them from getting an education or a job.”

Oklahoma now ranks third in prison incarceration rates in the U.S. due primarily to passage of SQ 780 and HB 1269 in 2019 that made SQ 780 retroactive. HB 1269 provided for the release of persons, mostly drug offenders, who were still serving prison terms for offenses that had become misdemeanors with passage of SQ 780.

HB 3694 being considered in this year’s legislature would roll back the felony limit for larceny from a retailer from $1,000 to $500. SB 1450, in addition to other provisions, would enlarge the period for aggregation of thefts from the current 90 days to one year, but leave the felony limit at $1,000.

Since passage of SQ 780, many of those who opposed it have felt the people made a mistake or they did not understand what the measure said. That may be true of some people regarding some particulars in the measure. (How many times have legislators passed a bill only to learn later of unintended consequences?) 

But the majority who passed SQ 780 knew they were tired of paying for being the second highest incarcerator of people in the nation, and they understood to prevent that they were changing what they considered low level offenses from felonies to misdemeanors. The two bills under consideration go in the opposite direction. 

There is no doubt that retail businesses are vulnerable to theft. They have goods out in the open and often have a lot of people in their stores. For safety and liability reasons, some do not want to confront shoplifters. Police do not have time or personnel to answer all the shoplifting calls. This is not a new problem. 

A perfect solution has yet to be found anywhere in any state. But one must wonder if the solution Oklahomans passed in SQ 780 has been given a fair chance to work. I do not have access to an in-depth study of misdemeanor cases filed throughout the state. But it seems unless officials can charge a person with a felony and subject them to time in prison, shoplifting is treated as hardly worth fooling with. Too often the response may be “we can’t do anything.” 

Studies show the most effective deterrent to crime is the relative certainty of being caught and punished. The law enforcement approach seems to be either a felony or nothing. That attitude is what the people intended to change when they passed SQ 780. A legislative scheme providing for up to 30 days in the county jail for the first and second offense and up to an entire year in jail each time thereafter (which is what SQ 780 entailed) sounds like a remedy — if applied — that would be a deterrent. 

No one would say that a law should never be changed — even one passed by the people. But before adding to the prison population and creating more justice people with felonies on their records, it is worth considering what other states are doing. The felony limit in Texas is $2,500, Missouri $750, Kansas $1,500, Colorado $2,000, and New Mexico $500. The people in Oklahoma, when given a chance to vote only eight years ago, chose $1,000 as what they considered a prison offense. There are many economic and societal reasons why shoplifting might increase. Adding more people with felonies on their record is expensive and adds to the problem.


Editor’s note: While punishment can be a deterrent to crime, research also shows that behavioral treatment for drug use disorders and mental health is most effective at reducing the root causes for many criminal activities, especially non-violent offenses. SQ 781 was a companion question to SQ 780, which were both approved by voters in 2016. SQ 781 directed the legislature to invest the savings from a lower incarceration rate into county-level behavioral treatment. Lawmakers dragged their feet on this voter directive for seven years before finally agreeing in 2023 to fund $12.5 million for the County Community Safety Investment Fund per SQ 781. 


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.