Candy Bar Felonies 

A softer approach by Salt Lake County prosecutors to low-level retail theft has some asking who will pay the price

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On April 2, 2015, Salt Lake County District Attorney Sim Gill informed the police chiefs within his jurisdiction that his prosecutors would no longer be pressing felony charges against repeat retail-theft offenders of products or services valued at $50 or less.

Gill says once you get beyond "what I call a knee-jerk emotional response, then I think this makes sense." He describes the new policy as part of the broader discussion that has taken place in Utah over criminal justice reform as well as the push to reduce the state's prison population by focusing on probation and treatment rather than sentencing.

For some, the decision is good news. Salt Lake Legal Defenders Association's director Patrick Anderson had been hounding Gill for years, he says, to stop hitting shoplifters with felony charges when they were caught within a 10-year period with multiple prior misdemeanor theft convictions. Felony shoplifters, he says, "are a growth population, let me tell you"—particularly among the downtown homeless.

He cites examples of Salt Lake City's homeless population being hit with felonies for stealing mouthwash to drink or not paying Trax fares. "Why put that stigma on them?" he says, referring to the impact felony convictions have on those seeking federally-subsized housing or employment.

Half the cities in the state follow Utah's Good Landord program, says Sen. Daniel Thatcher, R-West Valley City, which compounds the problem, since it bars people with felonies from renting. "At this point, we might as well be creating a leper colony," he says. "The reality is, you look at people who have committed more than three petty larcenies—is prison the right place for them, or do they need a psych eval?"

Retailers, however, see theft by members of the homeless population as a more nuanced problem. The Utah Retail Merchants Association represents 400 members, says President David Davis. His members see certain individuals stealing over and over again. If those individuals know that thefts less than a certain dollar amount may not result in a strict enforcement action, he says, "That takes away the deterrent factor."

Gill says the decision to not "rubber-stamp" cops wanting low-level retail thefts enhanced to felonies, "isn't going to result in a crime wave in our community," saying that there are several hundred such cases per year. Reviewing his agency's statistics for 2014, SLLDA's Anderson says his legal defenders handled 1,118 cases last year where felony retail theft was the lead charge, and some of those were repeat offenders. He estimated 10 percent to 20 percent of those cases involved thefts of $50 or less.

Others, however, express frustration both with the way the decision was made and its potential ramifications for retailers and consumers. Fraternal Order of Police spokesman Ian Adams says Utah has been in the grip of a property-crime wave for some time. For one county prosecutor to "override how thefts are prosecuted is not how our system works." The Salt Lake City Police Department declined to comment.

One reason behind the move is jail overcrowding: "What we've said is we ought to use jail for those people who are a genuine risk to our community," Gill says.

FOP's Adams argues, however, that what is driving concerns about jail overcrowding is the recent legislative move in Utah to reduce charges relating to possession of hard narcotics from felonies to misdemeanors.

Gill says his decision is also driven by justice-court judges reluctant to give a repeat low-level thief six months in jail. "Does it seem logical that on a $10 retail theft of, say, a candy bar, that a district court judge is going to send this guy to prison?" Gill asks. If a law-enforcement agency, however, determines that a serial or nuisance thief is causing problems in a community, "then let's discuss that."

Cottonwood Heights Police Chief Robby Russo welcomes the move. "If we really need to make an impression on somebody, [the DA will] do it," he says. Ironically, he notes, criminals typically get harsher sentences from municipal-court judges than district courts. Community courts, he adds, "are more about getting a pound of flesh."

Gill says he's simply exercising his right to prosecutorial discretion. But the FOP's Adams says it's not the DA's place to change laws—it's the Legislature's.

Adams cites street cops he knows who, for example, were called to a grocery store to arrest a homeless man who had stolen a candy bar and some underwear. The officer, he says, talked to the corporation owning the store, and negotiated an agreement whereby the officer issued the man a ticket and let him go on his way. "There's nothing to be gained, no advantage to booking someone like that into jail," Adams says.

Which is why Adams views the DA's decision as not so much an issue for law enforcement as for community stakeholders. "I don't think the root of this is candy-bar felonies," he says, predicting that the number of $48- or $49-dollar thefts will rise in the wake of this decision. "It's a criminal's job, so to speak," he says, to pay attention to such information.

When violence is committed—for example, when someone hits a cashier after being caught trying to run out of a store with some beer—that, Gill says, will certainly get a different response from his office. "Let's not confuse violence with a nonviolent offense," Gill says. "We need to recognize the proportionality of conduct."

He recalls a third degree felony charge for a $2.94 theft that recently came across his desk. "You've got to be kidding me," he says. "We pleaded it down and disposed of it."

David Davis says Utah merchants have seen an upswing in recent years of organized retail-theft rings sweeping through the state. His association, he says, was not consulted by the District Attorney regarding the move to scale back theft prosecutions, in contrast to Sen. Daniel Thatcher's legislation that successfully passed in 2014 reducing sentences for felony retail-theft of items valued at $500-plus. "That's a better example of how the process should work," Davis says, "getting stakeholders together and having a reasonable and intelligent discussion about where is the line regarding what are minor infractions and what constitutes repeat behavior," Davis says.

Gill argues that the punishment needs to fit the crime. "If you can tell me that charging third-degree felonies for stealing candy bars is making a dent, then I will stand up and listen." But, he continues, the majority of criminal conduct is driven by substance abuse, poverty and mental-health issues. "We can no longer afford to have the luxury of our ambivalence or inaction."

Davis believes that those who ultimately will bear the cost of this decision are Salt Lake County retail customers. "This is no good for retailers, but more importantly, it's not good for consumers. The cost of shrinkage or theft is inevitably passed on to them."

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