Fallout from MLK, "When Black Shoplifting Is A Felony: Retailers Back Harsher Penalties For Store Theft"

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