Dollars & Sense: Changes to Colorado’s Theft Statute

Colorado amended its theft statute this year, and the biggest change is that the dollar tiers that separate criminal offense levels are vastly different.  In general, the tiers became more lenient, but they also created more tiers, both on the lower end and the high end.   The legislature also consolidated some crimes into the theft statute that had previously been considered distinct crimes, such as “fuel piracy”(not paying for your gas at the station).  But the change in offense levels is the big change.

The change in dollar tiers is pretty dramatic.   For example, under the previous law, a homeless person who shoplifted a toothbrush from Walgreens would be facing the same charge (though different treatment) as someone who stole an IPod from a person’s unlocked gym locker: a class 2 misdemeanor, punishable by up to 1 year in jail.   Now, the toothbrush shoplifter would be facing a petty offense and the IPod thief would be facing either a class 2 or a class 3 misdemeanor, depending on whether the value of the IPod was over $300.

A college student who stole a laptop worth $1500 would previously have been facing a class 4 felony, but now would be facing a class 1 misdemeanor.   To be a class 4 felony today, that laptop would have to be worth $20,000.

Why did Colorado do this?  Statutes that are defined by dollar amounts are sometimes updated to keep pace with inflation, but these changes are far more dramatic than that.   Is Colorado taking theft less seriously, now?  Maybe the legislature agreed that stealing a laptop from a library desk shouldn’t constitute a felony. Maybe they recognized that minor shoplifting cases shouldn’t expose a person to up to 1 year in jail.

But you don’t have to be cynical to guess that budgetary concerns played a role.  The amended law is forecast to save the state $2.2 million over the next 2 years alone.  The prison sentences will be shorter.  Fewer cases charged as felonies means more cases handled by lower courts, ultimately costing less in court and public defender resources.

The amendment is good law.   A reasonable and thoughtful prosecutor might have treated the toothbrush shoplifter and the IPod gym thief differently.  He might have gotten it right.   But he might not have.  If I were the parent or friend of someone who made a small mistake, I’d rather not have the outcome of that case depend on the moral sophistication of the prosecutor.  I’d want a good criminal lawyer on our side, but I’d also want my state legislature to have done some of that work up front, and protected the individual from an overzealous prosecutor.

And I don’t believe the law is soft on crime.  Yes, it changes the tiers downward, and one might imagine scenarios where an $1800 theft just feels like it should be a felony.  But there are other laws for most of those situations: trespass if they entered your vehicle to steal an item; burglary if they entered your home, robbery if they used force against you to accomplish the theft.   Such scenarios offend public safety, and likely reflect a greater disregard for laws than a shoplifter or a store employee taking some cash home after a shift.    Other scenarios, such as repeat offenses, can be dealt with sometimes by aggregating $ amounts from different thefts to reach a higher offense level, or by imposing jail at the top of the offense’s range.  The DA retains plenty of tools to prosecute serious thieves.

Offenders of the plain-vanilla theft law will still be prosecuted and punished, no doubt.  And repeat or serious offenders will be aggressively prosecuted and incarcerated.  But taking a hammer out of the hands of a DA here is a good thing, especially when you or a loved one is the nail.   The old statute simply left too much room for an aggressive prosecutor to overpursue relatively minor offenses.

Here are the new tiers:

Petty Offense     <$50
Class 3 misdemeanor $50 to $299
Class 2 misdemeanor $300 to $749
Class 1 misdemeanor $750 to $1999
Class 6 felony $2000 to $4999
Class 5 felony $5000 to $19,999
Class 4 felony $20,000 to $99,999
Class 3 felony $100,000 to $999,999
Class 2 felony $1,000,000 or more