Last week, Governor Ralph Northam announced he’d struck a major deal with GOP leaders – raising the felony theft threshold in exchange for restitution reform.
“Let me be clear,” Northam said. “We want to remain tough on crime in the Commonwealth of Virginia, but it is unjust that a theft of something like a pair of shoes or a phone could send someone to prison with a felony conviction on their record for life.”
Right now in Virginia - stealing $200 or more worth of property can get you a felony charge for life and land you in jail. Over the past several years, many states have raised their thresholds for felony charges.
According to 2016 FBI data, the average amount of personal property stolen at one time is just one dollar shy of $1,000.
The deal between Northam and Virginia’s GOP leaders would raise Virginia’s felony larceny threshold from $200 to $500. But because the state hasn’t raised its threshold since 1980, Jesse Frierson with the NAACP says it should be raised to at least $1,500.
“It”s not enough if it passes, it might be another 40 years or so,” Frierson said. “That’s the real fear.”
A recent study of over 30 states that have already increased their thresholds found that property crime rates didn’t increase along with the threshold. Jake Horowitz is with PEW Charitable Trusts, the group that conducted the study. Horowitz says when states fail to increase their thresholds they’re in essence applying the felony punishment to crimes of less and less significance.
“If a 10 speed bicycle was stolen in 1980 and due to inflation, that bicycle, uh, is now $600 and the threshold had been there this whole time,” Horowitz said. “That was a misdemeanor, uh, back in the day. Today, it’s a felony, the same old crime being committed. Now the person who committed that crime is picking up a felony-designated crime and potentially doing prison time.”
The ACLU of Virginia – and several other groups including the Legal Aid Justice Center and Justice Forward – agree the threshold in Virginia needs to be raised. But what they don’t support is the deal reached regarding changes to how the state enforces collection of restitution. Claire Guthrie Gastanaga is Executive Director for the ACLU of Virginia.
“So we're really…when you factor in inflation, we're going backwards not forward,” Gastanaga said. “And we shouldn’t be doing that unless we've got a really good deal.”
Republican Delegate Rob Bell has been a leading voice of opposition when it comes to raising the larceny threshold. As part of the bipartisan compromise, Bell is seeking additional measures to help hold those convicted of larceny accountable for paying back what they owe to victims.
“The restitution collection system in Virginia is and has been a disgrace,” Bell said.
A 2016 state crime commission study found over $230 million in unpaid restitution. Millions in paid restitution were also found sitting in state coffers instead of being returned to crime victims. Bell has proposed funding for two positions dedicated to tracking down victims to better ensure they receive the money they’re owed.
But Virginia Secretary of Public Safety and Homeland Security Brian Moran says the majority of negotiations between he and Bell centered on how the courts should enforce restitution payments. Former Virginia Governor Terry McAuliffe vetoed restitution efforts, from Bell last year, that would have allowed an individual to remain on probation for life until they’ve paid back restitution in full. As part of negotiations with Moran, language about indefinate probation was capped at 10 years and changes the type of probation from supervised to unsupervised probation.
“These are individuals who have done well on probation,” Moran said. “The only outstanding debt they have is the restitution. You know, they’ve taken care of the fines and costs. They’ve spent their term, whatever their sentence that was imposed. And so it's just restitution.”
One of Bell’s bills would add an extra court hearing solely focused on unpaid restitution for this group. Moran says language in the bill gives the judge discretion on how to hold the defendant accountable.
“The judge can then make a determination right there whether or not this person will ever be able to pay restitution. Do they have the ability to pay? And if the judge determines they don’t have the ability to pay, he can just end the proceedings,” Moran said.
But the judge can also send the individual to jail for 60 days for failure to pay restitution, even though Moran says the jail time wouldn’t be accompanied with a new felony charge or a probation violation. That’s one reason why Gastanaga says the ACLU of Virginia doesn’t support the deal.
“So anything that looks like, walks like, talks like a debtor’s prison, we’re just not going to be able to support,” Gastanaga said.
But that doesn’t mean she’s against the concenpt of restitution.
“And so ideally you want somebody who owes restitution to have a job,” she said. “You don’t want him in jail, you want them in a job, you want them earning money and you want them using some of that money, uh, to the extent that they can do so relative to the basic living expenses all of us have, um, you want some of that money paid back to the people that they, that they injured or hurt or stole from.”
Gastanaga would just like to see restitution handled a different way: like other civil debts.