Editor’s note: This commentary is by David Rangaviz, who grew up in Montpelier, and recently moved to Maryland to work as a public defender in the Maryland Office of the Public Defender. He is a 2011 graduate of Harvard Law School.
[A]lmost every shoplifter I have ever met has one thing in common: abject poverty. As a public defender, I have represented a pregnant woman pocketing a sandwich because she was hungry, a mother taking clothing for her children, and a student stealing business attire because she did not own any for job interviews. Of course, stealing is wrong. But more than any other crime, petty retail theft is an act of desperation.
Regardless, when caught, shoplifters get charged with a crime.
In Vermont, the criminal penalties are stiff and they increase with the value of the goods stolen. Theft up to $900 in value carries up to six months in jail, while over $900 carries up to 10 years. The defendant must also return the property or pay back its owner.
Whatever one might think about the needed severity of punishment, there is little debate that shoplifters should compensate the owner plus suffer some added penalty to deter them from doing it again.
Here’s the problem: In addition to these criminal penalties, every state has “civil recovery” laws that let merchants sue for direct payment of yet more money. In Vermont, merchants can recover double the price tag (up to $300). In other words, merchants recover three times over: they get back their stolen item and then are paid twice its price.
Even when guilty, shoplifters are often overwhelmingly good people with potential who just did something foolish. Their missteps should not cost them both a clean criminal record and a considerable civil fine.
As written, these laws are unrelated to the merchant’s actual damages, which are usually nonexistent (since the item is recovered). Instead, civil recovery laws are defended as a means to reimburse for losses caused by shoplifters who go uncaught. With such a justification, civil recovery laws are unique in their forthright unfairness.
And, rather than local small businesses, these laws overwhelmingly benefit the biggest corporate retailers. Everyday, big box chains churn out “demand letters” from the offices of their attorneys that, in no uncertain terms, solicit payment of the penalty and threaten costly litigation if the demand goes unheeded. The letters constitute an unmitigated scare tactic; most companies will never actually bother to sue, but file demand after demand in the hopes of collecting easy money from the unrepresented and legally uninitiated.
The letters work; my previously uncounseled clients pay double the price tag they couldn’t afford in the first place. And, to their great surprise, the payments do nothing to alleviate those payments inevitably due later in the criminal case.
Civil recovery laws only get worse upon closer inspection. First, parents have to pay this penalty for their sticky-fingered children as if they had committed the crime themselves. Second, if the suspect ignores the demand letter, he has to pay all fees the merchant incurs in the process of suing, regardless of his ability to pay. Third, criminal conviction is not a prerequisite to the filing of a lawsuit — meaning that, say the police do not file charges, or the person wins the criminal trial because of their presumptive (or actual) innocence, the merchant can still demand payment and sue. There is zero criminal justice oversight of the civil recovery process. The demand is made of all suspects, guilty and innocent alike.
This law should be repealed, but it could also be changed in any number of ways. At a minimum, the Legislature could limit recovery to actual damages (as in Nebraska), or at least lower the exorbitant maximum penalties. But there are more creative solutions. For example, the statutes could bar civil recovery until after a criminal conviction, as in Virginia and New Mexico, thereby cloaking the suspect in the same presumption of innocence that protects criminal defendants. Or, as in West Virginia, the laws could eliminate duplicative punishment by barring subsequent civil recovery if the criminal fine is equal to or greater than the possible civil damages. Perhaps best of all, civil claims could be used in lieu of criminal prosecution altogether, an approach reflected in the Tennessee, New Hampshire, and South Carolina civil recovery statutes. This option avoids the stigma of theft convictions (which can devastate employment prospects) while compensating the merchant, punishing the perpetrator, and saving criminal justice resources.
Of course, retail shoplifting must be taken seriously. But noble ends do not justify unfair means, particularly with respect to a crime almost exclusive to the poor. Even when guilty, shoplifters are often overwhelmingly good people with potential who just did something foolish. Their missteps should not cost them both a clean criminal record and a considerable civil fine.
Civil recovery laws—applied above and beyond the steep criminal penalties already designed to reimburse, punish, and deter—prey on the ignorance, fear, and desperation of the nation’s poor, digging them into an ever-deeper hole to the advantage of huge corporate retailers (and their lawyers). In most cases, the penalty means a pittance to the company and a paycheck to the poor.
Indeed, these statutes may only exacerbate the problem. The higher the penalties imposed on the poor, the more people who may have to turn to theft for survival.
