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September 23, 2005

Property Crimes: Even Petty Crimes Can Lead to a Lifetime of Regret

By: Tony Partipilo, Attorney at Law and Helen Kim

Petty theft

"Theft" is committed by stealing anything of value. The value of the property relates to the classification of the crime and the nature and extent of the penalty that will be imposed upon conviction. People v. Kelly, 214 N.E.2d 290 (1st Dist. 1965). There are two categories of theft, which is also called larceny: grand larceny and petit, or petty larceny. States are entitled to set their own guidelines to distinguish between grand and petty larceny. In most jurisdictions, grand larceny is considered a felony while petty larceny is categorized as a misdemeanor. However, under most theft statutes, the value of the property determines the punishment. The Model Penal Code at 223(2) comments:

(a) Theft constitutes a felony of the third degree if the amount involved exceeds $500, or if the property stolen is a firearm, automobile, airplane, motorcycle, motor boat, or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property. (b) Theft not within the preceding paragraph constitutes a misdemeanor, except that if the property was not taken from the person or by threat, or in breach of a fiduciary obligation, and the actor proves by a preponderance of the evidence that the amount involved was less than $50, the offense constitutes a petty misdemeanor.

No matter how small the value of the property, a conviction of even the most minor larceny may leave a permanent imprint on an individuals criminal record. This record cannot only affect a person if they are convicted of another offense, but also in non-criminal, daily life situations, such as job hunting and housing.

Employment

Although an employer may not discriminate against an individual based on criminal history, statutes have allowed employers to inquire about an applicants criminal history. In Shapira v. Charles Schwab & Co., Inc., the Court found that the defendant employer was obligated by the Securities Exchange Act (SEA) to keep and maintain current records of any arrests for larceny of any person in its employ, and it was permitted by the SEA to inquire about such arrests concerning prospective employees. Therefore, the Court held that the defendant employer did not violate the New York Human Rights Laws by inquiring into an allegedly sealed arrest record of the plaintiff, who had applied for employment with the defendant. 225 F.Supp.2d 414 (S.D.N.Y. 2002). Although the plaintiff was mistakenly arrested for petty larceny and there was no indication that the plaintiffs arrest was a genuine factor in the employers decision not to hire him, Shapira confirms that employers are allowed to inquire, and in some instances, obligated to inquire, about an applicants criminal history.

Although employers may inquire into an individuals criminal past, they cannot discriminate on the basis of the applicants criminal past. In Adler v Montefiore Hosp. Assn of Western Pennsylvania, the Pennsylvania Supreme Court stated that the right to engage in common occupations as part of the liberty protected by the Fourteenth Amendment to the United States Constitution may not be interfered with, under the guise of protecting the public interest, by legislative action that is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. 311 A.2d 634 (Pa. 1973). Unless a state has a reasonable purpose, it cannot interfere with an individuals right to employment. In Nixon v Commonwealth, the Pennsylvania court commented that to forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation. 789 A.2d 376, 381 (Pa. 2001). However, unfavorable biases are likely to arise once employers learn of an applicants criminal record, even if the record consists of petty theft, subjecting the applicant to stricter review.

Housing

Title 24 of the Code of Federal Regulations at 960.204 requires public housing authorities to establish and adopt policies to preclude admission of applicants who may be expected to have a detrimental effect on the residents of the housing project environment. Such review includes the applicants past criminal activity.

When selecting tenants, 24 CFR 960.205(b)(3) allows housing authorities to consider "[a] history of criminal activity involving crimes of physical violence to persons or property and other criminal acts which would adversely affect the health, safety or welfare of other tenants."

Public housing policy is aimed at safeguarding other tenants from possible criminal acts against them, yet such practice creates difficulty for an individual with a criminal record, even a misdemeanor, to obtain (public) housing.

Sentencing

In federal criminal law, prior sentences, including misdemeanors where incarceration is not imposed, are counted in an individuals criminal history score. The criminal history score affects the sentencing of repeat offenders when they are convicted of a new crime. Pursuant to the United States Sentencing Guidelines 4A1.1(a) (c), sentences for misdemeanors and petty offenses are included when calculating the criminal history category for sentencing.

The United States Sentencing Guidelines 4A1.2 (c)(1) provides exceptions where misdemeanors and petty offenses are not factored in the calculation of ones criminal history: careless or reckless driving, gambling, prostitution, and trespassing are a few of the listed exceptions. Hitchhiking, juvenile status offenses and truancy, loitering, minor traffic infractions, public intoxication, and vagrancy are never included when calculating ones criminal history score. In United States v. Harris, the defendant argued that her prior shoplifting conviction should not have been factored into calculate her criminal history score because shoplifting is a petty offense that is similar to the exceptions in 4A1.2 (c)(1). 325 F.3d 865 (7th Cir. 2003). However, the Court joined the majority of jurisdictions and stated that convictions for petty theft or shoplifting are not similar to the offenses listed in 4A1.2 (c)(1) because petty larceny requires a trespass and a taking of anothers property. Hence, the Court affirmed the sentence in which defendants prior conviction of shoplifting was calculated into her criminal history score. Id.

Conclusion

A conviction for petty theft can have major repercussions than perceived at first blush. The misdemeanor is permanently recorded on an individuals criminal history and can follow the individual for the rest of his life. Not only will the conviction impact upon the individual if he is ever arrested and convicted for a subsequent crime, but it can affect the individual on a more basic level when he attempts to seek employment or housing. Employers and housing authorities cannot discriminate on the basis of ones criminal history but they are allowed to inquire and have access to those records. In a highly competitive job market, one misdemeanor conviction can mean the difference between a career and a job, between having a home and living on the streets.

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