Five strikes and you’re in: New law makes repeated thefts a felony

A person convicted of four thefts in Wyoming can now face a felony — and up to a decade in prison — if they steal again.

House Bill 112 – Theft-penalty for fifth or subsequent offense went into effect July 1. It was already a felony to steal something worth over $1,000 in Wyoming — or a “firearm, horse, mule, sheep, cattle, buffalo or swine” of any value — but this new law enables a fifth theft conviction to become a felony, regardless of the stolen good’s price.

Misdemeanor thefts in Wyoming come with penalties of up to six months in county jail and a $750 fine. In contrast, felony thefts carry prison terms and fines of up to $10,000.

Supporters see it as a way to stop serial offenders, but others view it as harmful to communities and fear an increase in prison crowding. 

“It’s not like it has all happened within a short period of time,” said Rep. Karlee Provenza (D-Laramie). “It’s throughout the course of your life. It’s just ultimately going to incarcerate more people. And with no solution, it’s not helping anybody.”

Rep. Ember Oakley (R-Riverton) sponsored the legislation this session as a tool to prosecute serial offenders, but said she doesn’t expect it to be used in most cases where it could apply. Oakley is a prosecutor in Fremont County. 

“It’s always discretionary,” she said. “That will happen probably more often than not — that you go forward with the misdemeanor, just because you do balance [criminal justice resources].”

The law, however, states that anyone getting a fifth or consecutive theft conviction “shall be guilty of a felony.”

The language is similar to laws for driving under the influence, according to Joshua Case of the law firm Steiner, Fornier, Zook and Case in Cheyenne. 

“Prosecutors wouldn’t have discretion to charge this as a misdemeanor,” he stated. “However, the prosecutor could have the discretion to not charge anything if they don’t believe they have enough evidence to convict someone.”

Under the new law, crimes counting toward a person’s five strikes include any theft offense outlined in state or local ordinances, including “shoplifting, larceny, wrongful taking of property, wrongful disposal of property or livestock rustling.”

It states thefts in “another jurisdiction” count, too, which can mean out-of-state convictions. 

Small crime, big impact

In her district, Oakley said a lot of the issues came from thefts of choice cuts of meat, cosmetics and electronics from the Walmart in Riverton.

“It’s very rare that we see somebody going in only stealing groceries and probably what they need,” she said. 

Prosecutors can already charge low-level thefts as felonies if the case involves a burglary or if the perpetrator has been banned from the store. But this new tool is better, Oakley said in a House Judiciary Meeting this January. There have been concerns about theft-to-resale rings, she added, albeit ones that aren’t as organized in Wyoming as other parts of the country.

That’s increasingly harming retailers across the state, according to Dale Steenbergen, who testified in January on behalf of the Greater Cheyenne Chamber of Commerce, Wyoming Business and Industry Federation, and state retail association.

“It really hurts when it gets down to some of our smaller [stores],” he said. “What they end up doing is raising their prices at a time when we don’t need to raise prices.”

Retailers can recoup many losses via insurance, but some testified that such coverage and surveillance measures cost significant funds that can’t go back into a store.

Wyoming’s overall larceny rates have fallen significantly over the last decade, according to FBI data, but there has been an uptick in recent years.

Dissenting opinion

The one lawmaker who voted against the legislation in that House committee was Provenza. She had concerns about a lack of evidence of organized theft rings, she said, and that putting more residents with low incomes and substance use disorders in prison would only hurt Wyoming communities.

“It’s not helping anybody,” Provenza said.

Incarcerating people over non-violent crimes has plenty of critics, given the state’s and nation’s high rates of residents behind bars. 

The threat of spending more time in prison is also not an effective deterrent to crime, according to the U.S. Department of Justice. The DOJ found that inmates may even learn “more effective crime strategies from each other, and time spent in prison may desensitize many to the threat of future imprisonment.” Instead, it found the deterrent of swift and certain punishment is more effective, which is a challenge with shoplifters.

Alternately, the public-policy nonprofit Pew Charitable Trusts found in 2017 that increasing the amount someone has to steal to get a felony didn’t mean higher theft rates.

Having a felony conviction is also a barrier to employment, Provenza added. 

“We’re talking about crimes of poverty,” she said. “And now, by the way, we’re gonna make sure you get a felony, so you can’t ever get a job.”

Beyond that, she said there are concerns about increasing prison populations.

Wyoming Department of Corrections prisons are fairly full. As of June 30, its five facilities had 1,837 inmates: about 90% of capacity, according to agency Support Services Administrator Paul Martin. Still, the department is not yet using jails or out-of-state prisons to offset crowding, he said — tactics it’s had to use in the past. 

Oakley said she doesn’t expect the law to have a major effect on prison capacity. If it does, she said, “then we’d find out we had a much bigger problem on our hands than we even understood.”

Besides, she said, the new law is needed. Oakley pointed to stores leaving areas of California — particularly around San Francisco — over shoplifting.

Stores like Old Navy and Whole Foods reported having issues with shoplifting, safety concerns for staff and reduced foot traffic before leaving San Francisco locations. Walgreens recently walked back claims that shoplifting was a significant reason for its stores’ departure from the same area. 

About 37% of physical retail losses in the U.S. were caused by external theft in 2021, according to the National Retail Federation, while 28.5% were caused by internal theft and another 25% were from process/control failures.