March/April 2015 Understanding the
prosecutors’ perspective on metals theft is the first step toward getting more
of these cases to trial and more metal thieves behind bars.
By Kent Kiser
Metals
theft creates substantial headaches and costs for scrap recycling operations.
From the recycler’s perspective, all the requirements for recordkeeping and
sharing information with law enforcement don’t seem to be resulting in more
thieves being convicted for their crimes. If prosecutors have a photo of the
suspect, documentation of the sale of stolen material, and even the material
itself, what’s the holdup? Even with that help, prosecutors say, reaching a
conviction is far from a cake walk. State and local prosecutors, who handle the
majority of these cases, face an array of challenges when building a metals
theft case and prosecuting and convicting such criminals. Recyclers can help by
reaching out to and working cooperatively with prosecutors and other
stakeholders, say those who have done so. Overcoming other barriers to
prosecution might require raising awareness on a larger scale, or even changing
laws to reflect the actual impact scrap thefts can have on the victims and the
community.
The Importance of
Education
The
most basic barrier to metals theft prosecution is that “most prosecutors don’t
really understand what we do as a business,” says ReMA chair-elect Mark Lewon
of Utah Metal Works (Salt Lake City). They can face a steep learning curve to
understand how your operations work, the materials you handle, the terminology
you use, and what you realistically can and cannot do to counter metals theft.
Candace Mosley, director of programs for the
National District Attorneys Association (Alexandria, Va.), confirmed that point
in a workshop at ISRI’s 2014 convention. “We don’t know what suspect and
not-suspect material is,” for example, she says. As they do when facing any
unfamiliar evidentiary terrain, prosecutors and investigators in prosecutors’
offices need to learn the recycling industry’s specialized aspects and how to
communicate that information effectively to the “trier of fact”—such as a judge
or jury—once a case is prepared, filed, and ready for trial. “We need you as
our substantive experts to help us combat that crime,” Mosley says.
Prosecutors’ lack of knowledge about the
recycling industry can create misperceptions. “As a prosecutor, I initially
held the view that recyclers were part of the metals theft problem,” says Fred
Burmester, a deputy district attorney in Salt Lake County, Utah. When metals
theft started becoming a problem in his county, Lewon recalls, “there was a lot
of suspicion, with law enforcement and prosecutors thinking we were in cahoots
with the thieves.” Such views can color prosecutors’ attitudes toward—and limit
their understanding of—metals theft cases and recyclers’ role in them.
As government employees, prosecutors often face
staff shortages, budget limitations, and heavy caseloads. Those burdens force
them to “triage their cases and ruthlessly kick out the weak ones,” which can
include metals theft cases, Burmester says. Factors in that decision include
state law and perceptions of the seriousness of the crime. “Prosecutors’
offices typically must prioritize violent crime and crimes against vulnerable
victims, which are going to outweigh property crimes,” says Brad Schimel,
former district attorney for Waukesha County, Wis., and now Wisconsin’s
attorney general. Thus, in his state, metals thefts initially “were cases that
were given low priority,” he says. Further, metals thefts are misdemeanor
property crimes under most state criminal statutes, so they often take a back
seat to felony personal and property crimes.
Another challenge for prosecutors is securing
the evidence necessary to build a successful metals theft case. “Prosecutors
need to prove all the elements of the crime beyond a reasonable doubt, so the
evidence throughout needs to be strong,” Burmester says. The prosecutor must be
able to identify the defendant as the person who stole the metal, link the
defendant to the specific metal stolen, identify the owner of the material, and
provide the necessary witnesses to support the allegations, says Hilary Blake,
an assistant district attorney in Dallas County, Texas. “The strongest and
ideal cases,” she says, “have ample physical evidence, surveillance video,
witnesses, photographs of the crime scene and the defendant with the stolen
metal in hand, and any tools used in the metal theft. We prosecute cases with
much less,” she adds, “but juries expect Hollywood, so the more evidence we can
provide, the better.”
What does she mean by Hollywood? Jurors can
have “unrealistic expectations” regarding evidence and trials, Blake says.
“Many jurors think television shows such as CSI, Law & Order, and NCIS are
all completely factual,” and they think that finding clear evidence that leads
to conviction is “achievable in all cases,” she says.
Building a metals theft case can require more
work from prosecutors, Burmester says—especially at the investigatory stage—in
that “you have different types of evidence that have to be admitted, so you’ve
got all kinds of pitfalls dealing with that, and then you need to convey the
evidence to a jury in a way that they can understand and that keeps their
interest.” Making such cases interesting and sensible to a jury is “harder and
more complicated and requires more resources than other cases,” he says.
Further, Blake says, “prosecutors have to show the jury how the damage from the
theft of metals hurts the victims and the community and make the jury
understand and care about the property damage.”
In short, building a strong metals theft case
and securing a conviction can be “extremely difficult from a prosecutor’s
perspective,” says Danielle Waterfield, ISRI’s assistant counsel and director
of government relations. “It’s a high bar, something they’re not necessarily
going to jump at.”
Pushing for Prosecution
Brad
Schimel started hearing about metals theft about a decade ago, but it wasn’t
until he attended a summit on the issue in 2007 that he “got the message,” he
says, and started giving these cases higher priority as a district attorney.
Other prosecutors around the country are getting the message as well and
working with key stakeholders to bring more to trial. They name some approaches
that those in other communities might replicate:
Understand that most
recyclers are allies, not adversaries. “One of the biggest steps initially,”
Burmester says, “was to disabuse ourselves—law enforcement, prosecutors, and
victims—of the idea that all recyclers are bad guys. We had to rid ourselves of
that prejudice and invite them to participate” in discussions of how to catch
and prosecute metal thieves. As Lewon puts it, “prosecutors and law enforcement
need to realize there are good guys and bad guys in the recycling business,
just like everywhere else.”
Build cooperation among
stakeholders.
Forging closer working relationships and better communication among law
enforcement officials, theft victims, and recyclers can aid prosecution.
Burmester formed a group of such stakeholders in 2007 after meeting the
regional security representative of a large retailer and hearing the company’s
challenges with metals theft. Lewon, who participated in the Salt Lake County
stakeholder meetings with Burmester, says such meetings dispelled
misperceptions and established common ground among the participants. “As we
talked about our frustrations with metals thefts, we realized we had a lot in
common and that we could work together on the issue to get some convictions,”
he says. As a result of the group’s meetings, one of the Salt Lake County
police departments has established a database for metals theft reports, which
is helping police throughout the county track theft cases and notify recyclers
to watch for certain items. “Success depends on police officers who care and
recyclers who participate and who want to be good, law-abiding citizens,”
Burmester says. “It’s absolutely a team effort.”
Think about metals
theft as a gateway crime. Even if state law considers it a misdemeanor property
crime, encourage prosecutors to take metals theft seriously. There’s some
evidence, for instance, that violent offenders begin their criminal activities
with property crimes. Many metal thieves are repeat criminals who “have a scheme
that they have been carrying out for some time,” Schimel says. “You’ve got to
overcome the mindset among prosecutors and law enforcement that these crimes
aren’t a big deal.”
It’s also important, he adds, to “look at who
is committing these crimes and what bigger problems are being fueled by this
activity”—most notably illegal drugs. “Many of these scrap metal thieves are
stealing to support a heroin habit, so this is more than just theft when we
measure the overall impact on our communities,” Schimel points out.
If prosecutors see pursuing metals theft cases
as “saving the community from serious threats, then they look at such cases as
worth their time,” Waterfield says. “They want to have the most impact for
their time. They have to really understand and care about the issue to pursue
it with the type of energy and effort that’s required.”
Focus on the victims
and impact.
Some prosecutors consider metals theft essentially a victimless crime, Schimel
says, but those affected know that’s not true. Victims can sustain significant
financial losses from the theft. As Blake points out, “often the victims are
public schools, places of worship, commercial properties, or communication
carriers, and the destruction causes significant monetary damage, but the chance
of restitution being collected from the defendants is extremely rare.” In many
of these cases, the value of the stolen material is low, but “what’s egregious
is the damage caused,” Burmester says. “The cost of the damage often far
exceeds the stuff taken and certainly the value of the scrapped material.”
Metals theft also can
pose health and safety risks to the community. If a thief steals
equipment from a telecommunications hub, for example, residents in distress
might not be able to call for emergency assistance. “We’re talking about thefts
that create serious public safety issues,” Schimel says.
Enforce laws
consistently. Once
prosecutors understand the far-reaching effects of metals theft, Schimel
suggests they implement a pro-prosecution policy that includes “not just going
after the thieves, but enforcing the rules on scrap purchasers.” Wisconsin, for
instance, requires scrap recyclers to collect and store data on their
scrap-purchase transactions, but not all operators were complying with the rules,
which created an unfair playing field for those recyclers who did comply. So
Wisconsin legislators enacted additional laws that escalate criminal penalties
on scrap dealers who do not follow the rules. “The threat of charges has
convinced many of the evasive dealers to get in compliance,” Schimel says.
The challenge, however, is to ensure uniform
enforcement of those laws statewide to prevent illegal activity from simply
moving to areas with lax enforcement. That should be incentive enough for
prosecutors to take action. “None of us would want our county to become the
Mecca for stolen scrap,” Schimel says. “None of us wants to attract drug
addicts from other counties to our communities to sell their stolen materials.
It is in each of our interests to see that the scrap dealers in our counties
follow the rules.” Such close scrutiny on noncomplying recyclers also could
help drive illegal operators—also called rogue or pop-up operations—out of the
market, reducing the potential for criminal activity, Burmester says.
Make metals theft a
felony.
One of the most effective ways to encourage prosecutors to focus on metals
theft cases is to elevate the thefts to felony status. States can do that by
lowering the value threshold such crimes must meet to be considered felonies
and by allowing prosecutors to combine the value of the stolen material with
the damage caused during the crime. For instance, if a thief cuts through
fencing during a theft, then the cost to repair the fence could be included in
the cost of the crime. Some states—but not all—allow such aggregation as well
as allow prosecuting multiple individual thefts as a single crime if the
property belonged to the same owner and the thefts were committed for a single
goal or in execution of a single deceptive scheme. In other instances, states
consider a crime a felony if it involves a theft of material from “critical
infrastructure” such as a public utility or if it impairs such services.
In states without such laws, making these
changes would require “a statutory change in the criminal code, and opening up
the criminal code in the legislature is not an easy task to do,” Waterfield
says.
The Recycler’s Role
Prosecutors
say recyclers can play a significant role in helping them successfully build
and try these cases. They emphasize the importance of thorough procedures for
recording scrap-purchasing transactions, including copying a government-issued
photo identification of each supplier, writing a description of the incoming
material, and taking either a photo or video of the material. “Those details
are essential to prosecuting these cases,” Burmester says. Every state has some
type of recordkeeping requirement for recycling transactions. For example, 44
states require recyclers to record at least the information from a
government-issued ID for each supplier, and 17 states require a photo or video
of incoming material, according to ISRI’s database of state metals theft laws.
“Providing prosecutors with as much of the case information as possible helps
them immensely,” Waterfield says. This might include all previous transaction
records related to the suspect and any observations about the person, such as
his or her behavior on site.
Recyclers also can provide outreach and
education. ISRI’s Wisconsin Chapter offered a metals theft seminar in May 2014
for law enforcement officials, prosecutors, and recyclers in the state. Schimel
attended the event in his capacity as district attorney for Waukesha County,
and what he heard persuaded him that “these cases should be viewed more
seriously by prosecutors,” he says. He subsequently sent an e-mail to other
Wisconsin district attorneys to convince them that “these cases are worthy of
some priority in our offices.” Schimel’s experience with the chapter also gave
him contacts he could call with any recycling-related questions that arose when
he encountered metals theft cases. As he told his fellow Wisconsin district
attorneys, ISRI’s Wisconsin Chapter “will connect you with members of their
organization who can provide expert guidance in determining the market value of
the stolen items and any other help you may need.” (See “Tools for Prosecutors”
on page 196 for resources ReMA offers to help with outreach.)
You can build bridges with prosecutors and help
them build stronger metals theft cases by inviting them to tour your facilities
and see your operations in action. “Relationships count,” Waterfield says. “If
prosecutors know the recycler down the street, I think they’re more apt to take
a second look at a metals theft case that crosses their desk and call the
recycler for input.” When he was a district attorney, Schimel toured several
scrapyards, which helped him learn about scrap commodities and how quickly
material passes through a yard. “Recyclers don’t store scrap,” he says.
“They’re not warehouses that hang onto material forever. My visits helped me
learn that.”
Although prosecutors and recyclers believe they
are making progress in fighting metals theft, they agree there’s more to do to
ensure understanding, communication, and cooperation. “Some prosecutors have
come around on this, but we’ve got a lot of work to do to continue to raise
that awareness,” Schimel says.
Kent Kiser is publisher
of Scrap and assistant vice president of industry
communications for ISRI.
Tools for Prosecutors
On
ISRI’s StopMetalsTheft.org website, the “Tools for Prosecutors” section offers
a variety of resources, including a metals theft evidence checklist, answers to
frequently asked questions, a glossary of photos and descriptions of commonly
processed scrap materials, and a link to ISRI’s state metals theft law
database. The website also has a link to ISRI’s ScrapTheftAlert.com
theft-notification system, information on the association’s Law Enforcement
Advisory Council (which contains one public prosecutor), and a PDF version of a
letter from Brad Schimel, then district attorney for Waukesha County, Wis.,
about prosecuting metals theft cases. (Schimel now is Wisconsin’s attorney
general.)
In addition, ReMA is developing free continuing
legal education courses for prosecutors on metals theft, with plans to
introduce the first course at the July 2015 conference of the National Black
Prosecutors Association in Washington, D.C. Danielle Waterfield, ISRI’s
assistant counsel and director of government relations, says the debut course
will give prosecutors a show-and-tell of commonly stolen metals and a review of
state laws on metals theft. ReMA intends to expand this program nationwide.
ISRI also is working with Fred Burmester, a
deputy district attorney in Salt Lake County, Utah, and the National District
Attorneys Association (Alexandria, Va.) to create how-to guides on prosecuting
metals theft cases. The three initial pamphlets in this series will cover
“Possession of Recent Stolen Property,” “Valuing the Stolen Property,” and
“Identification of Stolen Property.” The pamphlets are designed to help
prosecutors determine what kind of case they have and save them research time,
Waterfield says. ReMA will distribute the pamphlets through NDAA, NBPA, StopMetalsTheft.org,
and other outreach efforts.