Law & Principles
Ryan Haynie | March 25, 2021
Senate approves bill to tamper with SQ 780
Because of COVID-19 hitting Oklahoma in the middle of the 2020 legislative session, the 2021 session began with more bills filed than normal. Criminal justice bills were no exception. Some were good bills that will (or would have, as the case may be) have a positive impact on Oklahoma. Others pose potential problems. One of these is SB 334.
In 2016, Oklahoma voters passed SQ 780—a reform measure that recent polling shows 76 percent of Oklahomans still support. In addition to making simple possession of drugs a misdemeanor crime (rather than a felony), it also raised the felony threshold for property crimes from $500 to $1,000. Since this action by voters, legislators have filed a number of bills to scale back certain aspects of SQ 780.
You might ask why it’s important to keep SQ 780 intact. Because SQ 780 resulted in drug possession and certain property crimes being classified as a misdemeanor (as opposed to a felony), fewer Oklahomans face hurdles associated with education, employment, and incarceration that come with a felony conviction. And as I explain below, the public-safety benefit to lower felony thresholds for property crimes is negligible. In other words, SQ 780 improved the lives of countless Oklahomans while seeing a reduction in the amount of property crimes.
Unlike SQ 780, SB 334 doesn’t change the felony threshold, except that it would change the time period to aggregate the dollar amounts from separate offenses and potentially make them a felony. Under current law, “[w]hen three or more separate [property crimes] are committed within a ninety day period, the value of the goods ... or other corporeal property ... may be aggregated to determine the total value for purposes of determining the appropriate punishment.” SB 334, as filed, would have increased the aggregation period from 90 days to one year. On the Senate floor a compromise was reached with some concerned legislators to make the period 180 days—double the current law, but half of the original proposal.
The bill was drafted in conjunction with the National Retail Association to combat issues with retail theft. This isn’t a new argument. Retailers like QuikTrip have previously argued that they saw an increase in theft since the passage of SQ 780. As the linked news article points out, it’s unlikely that changing the felony threshold from $500 to $1000 had any impact on theft from the Tulsa-based retailer. Not only is it hard to steal $500 worth of merchandise from QuikTrip, the company acknowledged some of the other states it operates in have even higher felony thresholds that have not led to increased theft.
And there’s additional evidence that increasing the threshold has not led to increased property crime. A study conducted by Pew concluded in 2016 that raising the felony threshold for property crime has “no impact on overall property crime or larceny rates.” After looking at 23 states that increased the felony threshold from 2001-11, the study found that those 23 states had roughly the same decline in property crime as the states who made no changes. In fact, the states that changed their felony thresholds actually saw slightly larger decreases in property crimes generally, and specifically in larceny.
The most interesting part of the Pew study to me was that Oklahoma was the first state studied to change its threshold—having changed the threshold from $50 to $500 in 2001. As the table (from the FBI’s Crime Data Explorer tool) below demonstrates, larceny did increase some after 2001, but began dropping significantly in 2003 and has decreased substantially since that time. And much to the chagrin of the SQ 780 critics, larceny is down since 2016.
Conservatives often criticize the progressive appeal to “lived experience” rather than hard data. But some conservatives seem to do the same thing, leaning on anecdotes from prosecutors and retailers while ignoring established facts. Looking at the larceny rates from the FBI’s data, there’s simply no reason to believe that property crimes are more of a problem since voters passed SQ 780. And despite the “feeling” that property crime is on the rise, Oklahoma has been largely tracking with the nation, seeing a decrease in property crimes.
SB 334 passed the Senate mostly along ideological lines. It now moves to the House. It is the only bill left alive that seeks to undo some of what was achieved by voters in 2016. Please feel free to reach out to your state representative and let them know we should be following the data—not the unverifiable claims of a handful of retailers.
Criminal Justice Reform Fellow
Ryan Haynie serves as the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs. Prior to joining OCPA, he practiced law in Oklahoma City. His work included representing the criminally accused in state and federal courts. Ryan is active in the Federalist Society, serving as the Programming Director for the Oklahoma City Lawyer’s Chapter. He holds a B.B.A. from the University of Oklahoma and a J.D. from the University of Oklahoma College of Law. He and his wife, Jaclyn, live in Oklahoma City with their three children.