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What exactly did Abbie Welch put in her purse before she snuck
out of a Walmart in Knoxville, Tenn.? The court ruling doesn't
say.

Nor does it matter. What matters is a piece of paper she'd
previously received from Walmart banning her from the store.
Prosecutors used it to argue she was trespassing when she
shoplifted. Her crime, typically a misdemeanor, was elevated to
a burglary. She became a felon with a six-year sentence.

Among the legal briefs cited by the Tennessee Supreme Court in
this high-profile ruling in February is one from several retail
groups — in support of the prosecution.

Retailers have long kept a close eye on shoplifting laws around
the country, warning of organized retail crime rings that are
costing stores a lot of money. In an era of social-justice
reckoning, their support of harsher shoplifting punishments and
related laws faces new scrutiny from advocates who say this
lobbying goes counter to the companies' public statements
promoting racial and social equity.

A new report by the consumer-interest nonprofit Public Citizen
calls out major retailers — Best Buy, Lowe's, Home Depot,
Target, Walmart and others — for donating to trade associations
and campaigns promoting harsher shoplifting penalties in at
least 18 states. The retailers succeeded in 11 of them,
according to the report.

"Corporations that embraced criminal justice reform rhetoric
have been fueling mass incarceration," the report declares.
Racial justice organization Color of Change plans to join Public
Citizen in writing to top retailers and industry groups to
demand they reverse course.

One related measure is on the November ballot in California:
Proposition 20 would toughen penalties for some theft-related
crimes. Among its biggest backers is grocer Albertsons, parent
of Safeway. Costco had previously donated to a campaign in favor
but told NPR that the company has requested a return of its
contribution and does not support the measure, without
elaborating further.

"People from across the political spectrum have come to realize
that it's wasteful and ineffective to just ratchet up
penalties," said Rick Claypool of Public Citizen, who authored
the report. "I think there is an opportunity here for the
retailers to change."

The crime

Claypool is typically a corporate-crime watchdog, but it was the
Tennessee case that got him curious. The door he opened was to a
convoluted web of state laws that decide the fate of people
caught shoplifting — who gets harsher penalties and who doesn't
— and the role that the stores can play when they lobby
lawmakers or send security staff to testify in court.

The retailers' targets are organized crime rings and repeat
offenders, looking to profit from shoplifting, said Jason
Straczewski, who oversees state-level advocacy and government
relations at the National Retail Federation. "Retailers are not
about filling the jails with tons of people who've stolen small-
dollar amounts of goods," he said.

The definition of "organized retail theft" changes by state.
California's Prop 20, for example, describes it as at least two
people shoplifting "in concert" at least twice in six months for
a total value more than $250.

The National Retail Federation doesn't "know where to draw the
line" in defining organized retail crime, Straczewski said. But
the trade group has called its impact as "considerable," costing
retailers $703,320 per $1 billion in sales. Almost all the
retailers polled by the trade group said they'd been hit by
retail-theft "gangs" in the previous year. Top stolen items were
designer clothes and handbags, infant formula, razors and
laundry detergent.

The culprit

Home Depot made headlines last year when it said the nation's
opioid epidemic was a big cause of "shrink" — a word retailers
use when merchandise goes missing, whether stolen by employees
or outsiders. Public defenders tend to describe shoplifting
cases as crimes of poverty, drug abuse and mental illness.

Thalia Karny had just moved from the Bronx to the über-wealthy
Manhattan as a public defender when she met Qulon McCain. He'd
been caught stealing socks from Bloomingdale's, and like Welch
in Tennessee faced a bumped-up felony charge because the store
had given him a "trespass notice."

McCain told her he was homeless. That he had mental illness.
That he wanted to get better. He spent almost nine months in
prison, she says, before finding a place in a mental-health
treatment center.

Karny had never seen such a case before. But they've cropped up
in some states. A woman battling cancer was sentenced to at
least 10 months in prison in Pennsylvania after stealing some
$100 worth of groceries. A man in Tennessee was sentenced to 12
years in prison after he faked the return of $39 worth of items
he had taken off store shelves. A man in Arizona was charged
with a felony after getting caught stealing items worth less
than $10.

Prosecutors point to the offenders' lengthy criminal histories
as factors for their serious sentences. Public defenders say
they are people trapped in the cycle of the criminal justice
system.

"Shoplifting may be a problem, an issue that needs to be dealt
with, but in our society, the only answer we have apparently is
— let's put people in prison for long periods of time," said
Jonathan Harwell, a public defender in Tennessee known for his
work on "Walmart burglary" cases. "We're the only country in the
world that does it on the scale that we do it. It doesn't seem
to be working, and it ruins people's lives. And why are we doing
that?"

The punishment

The main way that retailers are pushing for harsher shoplifting
punishments, according to Public Citizen, has to do with the
dollar value that states use to determine whether an incident is
a felony (typically punishable by over a year in prison) or a
misdemeanor (typically punishable by less than a year in jail,
often served on probation).

In recent years, concerns about mass incarceration have pushed
most states to raise the felony threshold. Many say, for
example, that theft below $1,000 should be a misdemeanor. But
disputes around these amounts persist.

Retail trade groups have argued that prosecutors should be able
to aggregate shoplifting incidents to crack down on repeat
offenders. With the same goal, the groups in many states have
lobbied in favor of lower thresholds for the value of stolen
property that triggers a felony charge.

Opponents of higher felony thresholds argue they encourage more
shoplifting because organized groups can simply adjust to
stealing more valuable items without fear of facing stiffer
charges. In recent years, the Pew Charitable Trusts studied
states that raised their thresholds and reported that property
crime rates were falling before the change and continued to fall
afterward.

The National Retail Federation's 2020 security survey found that
shoplifting apprehensions and prosecutions have fallen
dramatically since 2015. Meanwhile, the average loss per each
shoplifting incident declined only slightly to $270. According
to the Insurance Information Institute, most insurance policies
do not cover shoplifting but can cover burglaries.

Something major is getting lost in all of this, says Pew's Jake
Horowitz. If the goal is to deter crime, tougher punishment is
actually not the best approach.

"This may surprise some folks, but it's one of the least
controversial ideas among people who study crime," Horowitz
says. More severe punishments are expensive, costing taxpayers,
but he says severity is "essentially meaningless" compared with
the most important factor: certainty of punishment.

"Research shows clearly that the chance of being caught is a
vastly more effective deterrent than even draconian punishment,"
says the National Institute of Justice, an agency of the U.S.
Justice Department. "Prison sentences (particularly long
sentences) are unlikely to deter future crime. Prisons actually
may have the opposite effect."

Editor's Note: Target and Walmart are among NPR's recent
financial supporters.

NPR's Will Chase contributed to this report.

https://www.npr.org/2020/10/16/923844907/when-shoplifting-is-a- felony-retailers-back-harsher-penalties-for-store-theft
 

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