Virginia is for felonies? Petty theft law from 1980s sticks

RICHMOND, Va. -- Stealing a $230 pair of eyeglasses would land you a misdemeanor conviction in most states. Shoplifting the same item in Virginia could make you a felon for life.

To keep pace with inflation, at least 30 states have raised the dollar minimum for felony charges in the last two decades.

Three dozen have a threshold of $1,000 or more, and Wisconsin and Texas won't charge thefts of less than $2,500 as felonies, according to the National Conference of State Legislatures.

Virginia, however, has kept its felony bar at $200 since 1980, when that money had the same buying power as nearly $600 today. Virginia is tied with New Jersey for having the nation's lowest felony threshold.

Damien Ferebee said he was so embarrassed after he was caught stealing those eyeglasses, he paid back the store in Norfolk. Ferebee, who had a prior robbery conviction from 2004, pleaded guilty to felony larceny and was sentenced to six months in jail. He also lost his job. Now working as a cook at 31, he fears the latest felony will haunt him for years.

"You want to get back from your mistakes, but it just makes it harder," Ferebee said.

Ken Cuccinelli, a former Republican Virginia attorney general who supports raising the threshold, said Virginians and especially Republicans in the state have a long history "of only dealing with crime by making anything and everything tougher."

Democratic Gov. Terry McAuliffe's effort to make anything less than $500 a misdemeanor sailed through the Republican-controlled Senate this year, but was stymied in a GOP-led House committee last month after retail groups insisted the lower threshold deters shoplifting.

"The question is, why would we make it easier on people who steal?" said Republican Del. Rob Bell.

Critics say Virginia's policy is overly harsh on minor criminals without doing anything to prevent crime.

Prosecutors often agree to knock a first-time offender's felony larceny charge down to a misdemeanor when the stolen items are worth less than $1,000, but that depends largely on where the person is arrested, since prosecutors have wide discretion, said Michael Sprano, a northern Virginia attorney who works those cases.

Some prosecutors will reduce a felony shoplifting charge to a misdemeanor only if the accused agrees to serve jail time, Sprano said.

And because judges don't typically give jail time for first-time felony offenses, some defendants must decide whether to take a felony and go home, or get a misdemeanor and serve in jail.

"I had a client once who chose the felony instead of doing a month in jail because if he did the month in jail, he would've lost his job and his apartment and his family was depending on him," Sprano said.

It is unclear how many Virginians are being locked up for stealing low-priced items. A study by the Virginia Criminal Sentencing Commission in 2016 found that in fiscal years 2012 and 2013, nearly 850 people were convicted of felony larceny who would have received a misdemeanor had the state's threshold been $500.

Of those, 430 people were given probation or no incarceration, about 340 served jail time and nearly 80 were sent to prison, with a median sentence of more than a year. Meanwhile, they joined the hundreds of thousands of Virginians who've been disenfranchised due to felonies and must have their voting rights restored by the governor.

Virginia retailers say the shoplifters in their stores aren't people who make just one bad decision. They're often part of organized retail crime rings and are well aware of the state's larceny threshold, said Kate Baker, a lobbyist for the Virginia Retail Federation.

If the threshold is "raised to $500 or $1,000, they're going to steal up to $499 or $999 and retailers are going to eat that," said Lori Janke, who owns three resale clothing stores.

Janke said she's had eight significant shoplifting incidents at her stores over the last six years. None involved first-time offenders and most ended up with misdemeanor convictions, she said.

California retailers reported a surge in shoplifting after the state ended the possibility of charging people who steal anything below $950 with a felony in 2014. Large retailers including Safeway, Target, Rite Aid and CVS pharmacies said last year that shoplifting had increased at least 15 percent while shoplifting reports to the Los Angeles Police Department jumped by a quarter in the law's first year.

But a report by the Pew Research Center last year found no effect on property crimes or larceny rates in 23 states that raised their thresholds between 2001 and 2011. The report found that crime decreased in those states by essentially the same amount as in states that didn't change theft laws.