SHERIDAN — Currently, Wyoming statute sets theft as a felony with potential punishments of up to 10 years incarceration and up to $10,000 in fines. Separately, burglary does not have a monetary threshold.
A bill draft related to monetary thresholds on felony theft died in the Wyoming Legislature Joint Judiciary Committee Wednesday, after the committee heard testimony from legal experts and stakeholders.
A Pew Research Center Report about policy reform strengthening community supervision claims thresholds for property offenses have not adjusted appropriately to inflation over the years, therefore penalties are often disproportionate.
The report, provided by Wyoming Department of Corrections Director Robert Lampert, shows property crime levels have continued to decrease since 1995 by nearly half, even as state felony thresholds increased.
In 2015, Lampert testified to the judiciary committee regarding the high proportion of inmates convicted of theft within the prison population.
Legislation from 2004 raised the limit for various forms of misdemeanor theft from less than $500 to less than $1,000 — theft over the limit constitutes a felony.
A 2016 bill addressing property offenses, sponsored by Rep. Charles Pelkey, D-Laramie, would have lowered the number of felony offenses based on property value — raising the dollar amount to $2,500 to constitute a felony. The bill died in the Senate.
At the time, 4th Judicial District Court Judge John Fenn testified to his concern about removing the court’s discretion in criminal matters and argued the bill represented a misstep in the criminal justice system — taking into account repeat offenders and criminal history, according to committee meeting materials.
During the committee meeting Wednesday, Rep. Scott Clem, R-Gillette, said becoming a felon is easier today in the context of theft convictions because the monetary threshold has not increased to account for inflation. By calculating inflation compared to the last time theft statutes were altered, the threshold should be around $1,400 for felony theft today, he said.
Clem asked the committee to include five considerations with any potential bills: making victims whole, tools for prosecution, providing an effective deterrent, felonies and recidivism and inflation. His own research indicates one-quarter of men and one-sixth of women incarcerated in Wyoming have a theft conviction, he said.
Clem’s 2019 bill proposition included a tiered system with a high misdemeanor option, in between a misdemeanor and felony.
Clem said he would like to see Wyoming head toward a system that expands tools for prosecutors and allows convicts to pay for their crimes through work and payment of restitution, rather than spending time in prison, which is expensive for the state and delays a victim’s ability to obtain money owed.
Rep. Chuck Gray, R-Capser, noted 45 states currently have a felony threshold at or below $1,000 — Wyoming doesn’t stand out.
Rep. Art Washut, R-Casper, challenged the idea of state statutes “creating” felons and argued they create themselves, regardless of monetary limits imposed by the Legislature.
State public defender Diane Lozano said altering the monetary limit would not impact public defender case loads in total numbers, though they might handle more misdemeanor cases than felonies, which take less time and skill to resolve.
Many cases dealing with theft of items between $1,000-$2,500 are often resolved as misdemeanors anyway through plea bargaining, she said.
“We can make victims whole more quickly in misdemeanor cases,” Lozano said. “People are more likely to accept responsibility for their conduct in misdemeanor theft cases.”
Lozano also supported the idea of a high and low misdemeanor differentiation or felony punishment gradations to address varying levels of theft.
“Criminal sentences serve a variety of purposes including retribution and deterrence,” Lampert added. “But in my experience, they need to be proportional to the harm caused if we also want to control both criminal behavior and criminal justice spending when doling out punishment.”
Lampert advocated for raising the threshold to $2,000-$2,500, incorporating a high misdemeanor penalty and redefining punishments to still provide deterrence and public safety but save lengthy prison terms for higher offenders.
Wyoming Game and Fish Department Game Warden Dustin Shorma said the majority of wildlife violation citations are charged as high or low misdemeanors, with a maximum fine and jail sentence associated with each. Shooting a deer without a license is a high misdemeanor, while fishing without license is low.
If convicted of three separate violations of wanton destruction, for example, WGFD can impose a felony on the third conviction and any conviction thereafter is a felony, Shorma said.
John Worall, on behalf of the Wyoming County Attorney’s Association, said he does not support an increase in monetary threshold on felony theft but sees “considerable merit” in the idea of a high misdemeanor. Still, the state may not be prepared for a complete criminal code overhaul, he said.
Laramie County District Court Judge Thomas Campbell said district and county attorneys make charging decisions but it is uncommon for “property-only crimes” to appear in his court for which a prison term is the first sentence. However, very few offenders return to court with no criminal history or other influencing factors.
A convicted felon, regardless of age, may result in loss of voting, citizenship and firearm rights, among others.
Pelkey recognized the variety of crimes covered under the theft statute, which covers 19-year-olds who make youthful mistakes to more serious, repeat offenses.
Prior to taking a vote, Co-Chairman Sen. Tara Nethercott, R-Cheyenne, shared her intention to vote no, citing the severity of crimes ranging from embezzlement to check fraud. She described the existing statute as balanced, fair and proper.
“There are real victims to these crimes,” she said. “It’s always useful to use the 19-year-old who makes a boneheaded decision but in truth, the reality is — at least in my observation — that these are multi-offenders who have pretty extensive criminal histories.”
Pelkey moved to draft a bill, seconded by Rep. Clark Stith, R-Rock Springs, to raise the felony threshold to $1,500, based on the fair market value of victim items lost due to the theft. The bill draft failed six to seven.