Update: HB3694
House Bill 3694 (HB3694) is a proposed legislative measure aiming to modify the felony threshold for larceny from a merchandiser in Oklahoma. The measure would lower the threshold from $1,000 to $500, meaning that a theft of goods with a value of $500 or more would be a felony. This change has sparked a debate surrounding its potential consequences, especially in light of flaws in empirical data and historical crime reporting methods. Proponents argue that the adjustment will deter theft and protect businesses from organized retail theft, relying on both misleading data and false understandings of crime deterrence. Investigating these false claims becomes essential for understanding the true scope of shoplifting in Oklahoma.
False Claim: Shoplifting has tripled since 2016
The claim that shoplifting offenses have tripled since 2016 is based on a misinterpretation of the data. The FBI changed the way it collected crime data in 2021, which caused local law enforcement agencies to switch as well. This change in reporting mechanisms, from UCR's Summary Reporting System (Uniform Crime Report) to the more detailed SIBRS (State Incident Based Reporting System), means that older data may not align with the comprehensive information collected under SIBRS. The two law enforcement reporting systems simply collected different data. Therefore, historical comparisons using SIBRS could be misleading, leading OSBI to state that they do, “not advise comparing statewide SIBRS data prior to 2021 since every agency was not participating until January 1, 2021 and there will be gaps.” The gap is quite large with only 46.5% of Oklahoma's population was covered by agencies submitting data via SIBRS in 2016.
Utilizing UCR data from 2016 may offer a more accurate glimpse of the truth regarding shoplifting rates compared to relying on SIBRS data from that period, as not every law enforcement agency was equipped to report that data format in 2016. The table below shows the problem with relying on historical SIBRS data.
The claim that shoplifting offenses have tripled since 2016 is based on misunderstanding the data. Rather, when you compare the accurate statewide assessment of shoplifting in 2016, using UCR data, you can see that shoplifting has actually decreased by 17% since the passage of SQ780.
False Claim: Larceny Thresholds Reduce Crime
Research shows that adjusting felony theft thresholds has no discernible impact on overall property crime or larceny rates. The potential of HB 3694 to increase the state prison population with nonviolent shoplifters is particularly concerning, as the majority of shoplifting arrests in Oklahoma are nonviolent. Data shows only 3% of shoplifting charges involve violent charges. Oklahoma is already employing the national best practice with $1,000 being the most common larceny felony threshold across the nation. The proposed $500 threshold not only risks ensnaring college kids with felonies for minor offenses but also stands in stark contrast to the more pragmatic thresholds adopted by states like Texas, Virginia, and neighboring states, reflecting the need for a more measured and evidence-based approach to criminal justice legislation.
At a staggering cost of over $21,000 per year to incarcerate an individual in a state prison, imprisoning someone for a $500 theft seems not only financially irresponsible but also socially counterproductive. The ripple effect on the foster care system is alarming, with 11% of children in foster care attributed to a parent's incarceration, costing the state over $20,000 per child annually. Given that the operational capacity of state-run prisons has already decreased by over 40% since 2016 due to reduced crime rates post-SQ780, reverting to 2016 imprisonment levels risks overcrowding and straining the state's resources. Ultimately, the point of voting in a conservative legislative body is to promote fiscal responsibility. HB3694 will pack our prisons with low level offenders, costing taxpayers millions of dollars, for no crime reduction benefit.
Introduction to the Broader Issue
The COVID-19 pandemic and its aftermath have brought many issues in our society to the forefront and forced us, as a nation, to confront them. The media and popular culture have contributed to the widespread belief in the increased occurrence of "organized retail theft" crimes. Oklahoma has experienced these public safety challenges as well. Organized Retail Theft has different definitions in different states but it is generally defined as when people work together to steal goods from retail stores and then sell them, at a discounted rate, often online. This is not about regular shoplifters; it's more about organized groups doing large scale, coordinated, and consistent theft, as a business - with the actual shoplifter often being the lowest-level member of the organization.
Historically Oklahoma’s policy makers and law enforcement have focused on attempts to break up these organizations by punishing low-level offenders who are physically committing the crime of theft. The current approach towards combating Organized Retail Theft seems ineffective and contradictory. It only deals with individuals who commit crimes of necessity and fails to address the root causes of the problem. Instead, the state should focus on targeting the higher-level criminals and the sources of these criminal enterprises to effectively combat Organized Retail Theft. Last legislative session, Oklahoma lawmakers created a task force to explore the issue which represents an opportunity to change how Oklahoma is approaching this problem. Luckily for Oklahoma, the tools are already in place. It will just take a conscious change in policy to solve this problem.
Oklahoma’s Approach Is Flawed
There have been numerous recent attempts to combat the issue of Organized Retail Theft at the state legislative level. In 2022, Rep. Ross Ford introduced a bill to create a new crime called “smash and grab burglaries“ Other attempts have centered on raising penalties for those previously convicted of stealing from a retailer. All of these bills target low-level offenders who are being exploited by larger criminal organizations, and the incarceration of these individuals will not deter or halt the larger operation.
All of these ideas have been put forth in the name of combating Organized Retail Theft, but none adequately addresses the unique concerns of that crime. Organized Retail Theft is just that - organized. These solutions only serve to wrap up common shoplifters within their grasp, churning individuals from poverty back into incarceration and then straight back to poverty upon release without solving any of the underlying societal mechanisms that allow Organized Retail Theft to flourish. This constant cycle further destabilizes communities and only adds new potential recruits for criminal organizations to exploit. Studies show that long prison sentences increase the likelihood of reoffense for Oklahomans convicted of lower level offenses. Oklahoma voters acknowledged that these low level property crimes often stem from deep poverty and a lack of available resources and instead emphasized the need to address the root causes of these crimes. By investing in communities across the State there is a better chance of preventing such low-level crimes, and ending the consistent supply of individuals willing to commit retail theft for “a wage” from larger criminal enterprises.
The Solutions Already Exist
Not only are these proposed solutions poorly constructed to combat the narrowly tailored problem of Organized Retail Crime, but they are ultimately completely ineffective to combat that specific problem. Oklahoma already has crimes that are specifically designed to criminalize Organized Crime activities. For example, Oklahoma’s RICO statute already includes Larceny from a Retailer as an underlying crime, and was specifically designed, as held in the Oklahoma Court of Criminal Appeals, to apply to “large-scale crime rings.” RICO is the perfect candidate to attack an actual criminal organization instead of the low-level shoplifter because according to the Court, “RICO simply was not intended to reach any association of individuals who engage in ordinary criminal conduct” but rather to defend against a “larger effect on society beyond that of the normal criminal offense.” Organized Retail Theft is exactly the sort of crime that RICO was designed to address - and instead of going after the pawns of the operation - RICO allows law enforcement to deter and punish those who are creating the criminal enterprise itself.
Amazon Crime
As mentioned above there is another player within the Organized Retail Theft environment that is rarely discussed - the online marketplaces, which is the primary method for selling stolen goods by these criminal organizations. For example, Amazon (and other third-party marketplaces) are well aware that at least some percentage of goods being sold on their marketplaces are stolen but have failed to make any noticeable changes in policy to attempt to stop the practice. This may have to do with the fact that Amazon made more than $120 billion from third-party seller’s transaction fees, fulfillment costs, and advertising payments. It is speculated that Amazon makes more money from these fees than it makes from selling its own consumer products. By all accounts, online marketplaces like Amazon and Walmart and these Organized Retail Theft Organizations appear to have a mutually beneficial relationship. Silicon Valley companies shouldn’t be able to profit so easily from retail theft in Oklahoma. For example, a two-year investigation in San Francisco recovered over $2 million in stolen property, and in a self-reporting survey, over 75% of businesses reported seeing more organized retail theft activity
In the face of this problem, the Federal Government passed the INFORM Consumers Act which gives law enforcement another tool in Oklahoma’s arsenal. This act now mandates online marketplaces to require any individual who is selling a large amount of goods to provide documentation about their identity, in order to stop and allow quick investigation into retail theft organizations. Importantly, the law allows any State Attorney General to impose fines on the online marketplace, get restitution for victims, and stop defendants from continuing to sell online if they are not in compliance. This allows for another method of stopping Organized Retail Crime at its source instead of over-sentencing low-level offenders.
Conclusion
Organized Retail Theft poses a challenge in Oklahoma and across the nation, necessitating a new approach to combat this issue. Recent legislative efforts, such as the creation of a task force, provide an opportunity for change. Historically, law enforcement in Oklahoma predominantly focused on catching and punishing low-level offenders, resulting in a revolving door of minor offenders in the criminal justice system. To effectively address Organized Retail Theft, Oklahoma should instead shift its policy focus toward targeting the higher-level criminals and the origins of these criminal enterprises, utilizing existing tools like RICO. Additionally, holding online marketplaces accountable for profiting from theft is essential, as this illegal activity harms local businesses. A comprehensive and strategic approach, including giving struggling communities adequate resources, is needed to tackle this complex problem effectively instead of the overcriminalization of individual shoplifters.
