Whether it’s a pack of gum or a 60 inch plasma TV, you can be charged with a crime for stealing from a store — “retail theft”. Stealing items worth a lot can, and usually will, result in a felony. Taking items worth lesser amounts can be charged as misdemeanors, or you could be given a civil ordinance violation or a Civil Demand Letter sent by the store. Restorative justice is another idea being tested out as an alternative to a criminal sentence. Let’s look at what punishment for retail theft looks like and where civil demand and restorative justice fit in.
About Retail Theft
We are all aware of the massive amounts of theft that occurs around the US in retail stores every year. It’s constantly on the local news or in a crazy article we read on Facebook. Retail stores are continually trying to implement new protocols for loss prevention – more security people, new security systems, etc. Stores need to find a way to recover the expenses of loss prevention as well as the losses that they still suffer despite their investments. If stores cannot recoup these costs, they go out of business.
One way to recover these expenses is to build the cost of loss prevention into retail prices. Compare buying something online versus buying it in person at a physical store. Physical stores charge more money for products bought in person partially because physical stores suffer much higher losses from retail theft than online stores do. It is estimated that the average family spends an average of over $400 per year in order to fight shoplifting and employee theft. But there are some other options besides simply charging higher prices.
Some stores also have some more controversial options besides simply charging their customer’s higher prices; they can try to get money back from the shoplifters via Civil Demand or Restorative Justice.
Give Me Some Background on Civil Demand
Stores can try to recoup the money lost to theft is via letters of Civil Demand. All states have enacted laws to give stores the right to send letters demanding civil damages (Civil Demand Letter) from shoplifters instead of or in addition to criminal charges. The amount demanded varies based upon the law in the state, the store and what goods (size, price, etc.) were stolen. Typically the amount demanded will be greater than the cost of goods stolen because they build in other costs to their asking price. Some of these costs can include shoplifting prevention programs, cost of the retail theft, re-shelving costs or legal costs.
A civil demand only concerns civil matters, meaning they are used when a store has not yet chosen to file a criminal complaint. The store can choose to file a complaint at any time during the civil demand process, and often use do, as motivating factor for ineffective civil demand letters. Also, as a side note, people caught shoplifting can be given an ordinance violation where police departments and prosecutors pursue their cases in municipal court instead of in criminal court. These ordinance violations are not criminal, meaning a conviction will not result in a criminal record.
Recovering the cost of goods stolen from the thief may seem fair enough. The controversy comes when the other costs added on start getting excessive. Unfortunately, Civil Demand Letters have become well known for often being abused, and can sometimes even be considered extortion. Some states are starting to look at limiting or ending this practice, like this MN bill, though as we’ll see in the bill section of this post, plenty of states are still looking to expand these ideas, and other states are looking at alternative ideas.
Give Me Some Background on Restorative Justice
What is restorative justice? Restorative justice aims to repair the harm caused by crime and can be used for many different crimes. It emphasizes accountability, making amends, and — if the parties involved are interested — facilitated meetings between victims, offenders, and others. In the case of retail theft, making amends can often take the form of paying back the store for the value of goods stolen as with a civil demand letter. But with restorative justice, there is more involved.
For example, Walmart looms large in the American landscape when it comes to retail space, and also when it comes to restorative justice. Walmart runs a nationwide anti-shoplifting program for restorative justice, usually run by contractors, as the new way to fight retail theft. Walmart says the restorative justice programs they are attempting to implement are about educating, not prosecuting, first-time, non-violent offenders. If someone is caught and detained, they have a choice whether to either have the police called or to sign up for one of these programs instead.
The controversy stems from the actual implementation of these policies. One of the contractors Walmart uses is Corrective Education Company (CEC). CEC’s program is presented as a choice to enroll in and costs $400 if paid in full up front ($500 if in payments). To qualify for the program, a suspected shoplifter must sign an admission of guilt. This admission can be turned over to the police at any time by the retailer, and often will be if the person does not complete the program or pay the fee in full. There are additional penalty charges for late payments and failure to pay can result in CEC turning information over to debt collection, which can snowball into enormous sums owed.
Further, some retailers that contract with CEC are given a percentage of CEC’s fee, typically $40 per case, but there have been claims that retailers can make up to $100 per case. This can create perverse incentives where catching people shoplifting is a lucrative sideline leading to all kinds of unfortunate unintended consequences for a well-meaning policy.
The Bills
MN HB 1520 ends precharge programs. Critics say when retailers make 20% from each documented accusation they then have an incentive to persecute people frequently, even when these people’s behaviors are innocent. Ultimately, minority shoppers become targets because our society has an implicit (or explicit) bias and we are quick to criminalize people of color.
CA AB1549 – This bill would allow a merchant or an independent educational provider to offer a person suspected of theft involving merchandise that is taken from the merchant’s premises an opportunity to complete a pre-complaint education program in lieu of making or filing a report of theft with a law enforcement agency.
CA SB3 says ” Reducing recidivism and preventing recurring criminal behavior have been and should continue to be, key goals of the state’s criminal justice policy. Programs exist to provide educational opportunities to low-risk offenders who engage in retail theft, or shoplifting. Opportunities to reduce recidivism through alternatives to arrest and prosecution should be considered, as they reduce burdens on law enforcement agencies and courts and these programs offer a second chance for low-risk offenders.”
FL H3097 – Shoplifting Diversion Pilot Program – This bill appropriates a one time fund of $750,000 from the General Revenue Fund to the Department of Law Enforcement to fund the Shoplifting Diversion Pilot Program for Florida.
Some other related bills include MS HB642, which goes over fines and jail time for the first three times someone is convicted of theft but not grand larceny. TN SB0119 expands the offense of theft to include evading a component of an anti-shoplifting device, interfering with a fire alarm system, or using any artifice or article to commit or facilitate a theft. New York, California and West Virginia have bills combating organized retail theft. NJ S2070 requires that DNA sample be taken from certain arrestees of a “specified disorderly persons offense”, but it will not include shoplifting in the list of these offenses.
Do These Ideas Work?
Although there is not a ton of information on how well restorative justice is working specifically within the shoplifting industry, there are studies in other areas. In schools, instead of giving students detention, suspension or expulsion they have students use mediation between the offender(s) and the victim(s) involved in an incident. This “mediation” or restorative justice involves open discussion of feelings, possible acceptance of fault on one or more sides and an agreement of reparations or next steps. These programs encourage mediation in hopes of helping students of color, as some theories state that the way schools discipline mirrors the criminal justice system and creates a “school-to-prison pipeline”.
Tyler Murphy Wilson’s thesis titled “Restorative Justice Program for Merchants, Community, and Young Shoplifters” analyzes the impact of these programs. In the conclusion, Wilson states “Descriptive results suggest that RESTORE appears to be successful at treating youths shoplifting with principles derived from restorative justice. However, the multivariate analysis, examining the relationship between participants’ restorative characteristics (e.g. harm awareness and decision-making indicators) and recidivism revealed no statistically significant results.” So it is unclear if these programs are producing the hoped-for benefits.
There are also extensive criticisms of these programs. Some people say they violate constitutional due process, utilize coercion and extortion tactics, and employ racial profiling to identify suspected shoplifters. The racial profiling aspect to this is something I find I cannot ignore so I believe more studies need to be done before expanding these policies any further. I also think that there should be no financial benefit to companies signing kids up for these programs. To me, incentives sully the purity of the idea of giving kids a second chance to make different choices and a better life. What are your thoughts?
About BillTrack50 – BillTrack50 offers free tools for citizens to easily research legislators and bills across all 50 states and Congress. BillTrack50 also offers professional tools to help organizations with ongoing legislative and regulatory tracking, as well as easy ways to share information both internally and with the public.