Shoplifting is a term used to describe the act of stealing merchandise from a retail store. The actual criminal charge that is filed against a shoplifting suspect may have a different name, such as retail fraud, petty larceny or petty theft.
Although shoplifting is a very common offense, particularly with younger people, the consequences of getting caught stealing from a store can be serious even for juvenile offenders, and can carry significant long-term consequences that may affect future employment, college enrollment, renting a house or apartment, or giving testimony in court. Shoplifting creates significant costs for retailers, which are passed on to law-abiding consumers. The National Retail Federation estimates that the prices paid by the average consumer are raised by approximately $500 per year due to the costs of shoplifting.
Although in its simplest terms, the act of shoplifting is normally regarded as trying to remove merchandise from a store without paying for it, a wide range of criminal actions may be regarded as shoplifting offenses, including:
Tampering With Price Tags: altering or switching price tags in order to try to pay a lower price for merchandise; and
Return Fraud: attempting to return a stolen item as if it was purchased from the store, to get an undeserved refund.
In some jurisdictions, the act of concealing unpurchased merchandise, such as placing it into a bag, purse or pocket, creates a presumption that the person concealing the item intended to steal it.
While most shoplifters are charged with a misdemeanor theft offense, certain facts about a shoplifting case may result in a more serious charge, even a felony charge. In most states the least serious shoplifting charge carries the potential for a shorter term in the county jail (e.g., 90 days) along with fines and court assessments. Felony charges can result in considerable terms of incarceration in a state prison.
Common factors that can result in a more serious charge and penalty include:
Prior Shoplifting Convictions: Many states have laws that allow for more serious charges against shoplifting suspects who have a prior history of shoplifting.
The Value of the Goods Stolen: State laws allow for greater penalties based upon the amount the shoplifter steals or attempts to steal.
Commercial Shoplifting: If the shoplifter intends to resell the goods they are stealing from a merchant, many states allow for a more serious criminal charge, often a felony charge.
Organized Shoplifting: If the shoplifter operates as part of a group of shoplifters, particularly if the group engages in shoplifting on more than one occasion or in more than one store, many states allow for a more serious charge.
Removal of Security Devices: Some states provide for more serious penalties when a shoplifter removes or deactivates a security or theft-prevention device as part of a theft attempt.
Possession of Shoplifting Tools: The possession of a tool that can be used to remove a security tag from merchandise, to shield merchandise from security scanners, or even a tool as simple as a knife or scissors that is used to open packaging or remove a price tag, may in some states result in a more serious charge, even a commercial shoplifting charge.
An adult who is caught shoplifting with a minor accomplice may face a more serious penalty. If arrested, an adult who is caring for minor children may find that the children are taken into custody by protective services.
If a prosecutor believes that an ordinary shoplifting charge is not sufficient, states may also have other statutes under which charges may be filed. For example, Michigan has a statute that allows any person found stealing from, among other places, a shop or gas station to be charged with a felony, without regard to the amount stolen.
States have passed laws that permit merchants to temporarily detain shoplifting suspects while they investigate their belief that shoplifting occurred, or while waiting for the police to arrive and formally charge or arrest the suspect.
The details of the laws vary significantly, but in general these laws provide the merchant with immunity for any claim of wrongful arrest or detention as long as they do not apply any unreasonable force in order to apprehend or detain the shoplifter, and as long as the detention is reasonable in its duration. The questions of what amount of evidence is sufficient to justify detention, and what amount of force or length of detention is unreasonable, will be affected by the language of the statute and must often be evaluated on a case-by-case basis.
Minors may be detained for shoplifting, although some states may provide for additional protections or parental notification when a minor is detained.
When a store detains a shoplifter, sometimes a cooperative and apologetic attitude will allow a suspect to convince the merchant not to involve the police, but to let the suspect go with a warning or with only civil consequences, such as a civil demand or trespass warning. The more combative, belligerent and argumentative the suspect, the more likely it becomes that the police will be called.
A suspect who applies physical force to a store employee may potentially be charged with an additional offense, such as battery, or may find that their actions result in a misdemeanor shoplifting charge becoming a felony robbery charge.
The penalties for shoplifting come in two forms: criminal and civil.
- Criminal punishments result from a prosecution for shoplifting, and potentially include such consequences as fines, incarceration, and community service.
- Civil penalties include the potential for a civil demand from the merchant, as well as the potential for being banned from entering a particular store or chain of stores.
The punishment a court will impose for shoplifting will depend upon factors including the exact charge filed against the defendant, the full facts of the case, the defendant's prior criminal and police record, and the policies of the local prosecutor and court. However, for most defendants convicted of first offense misdemeanor shoplifting, the defendant can expect to be sentenced to probation, to be ordered to pay fines and court assessments, and perhaps to perform community service or participate on a county work crew.
Shoplifters should be aware that judges in some jurisdictions may be inclined to sentence even a first offense shoplifter to jail as a message that the community takes shoplifting seriously. A sentence to probation may include a number of requirements that are based upon the court's impressions of a defendant, and what the court believes will help a defendant avoid committing additional offenses in the future.
For example, if a court suspects that a defendant is using illegal drugs the court may order random drug testing. Defendants may be ordered to seek and maintain full-time employment if not enrolled in school as a full-time student. Courts may require community service or participation in a work program, performing tasks such as picking up garbage at the roadside. Many other restrictions can potentially be imposed.
The consequences for a juvenile offender are similar, except that a juvenile court disposition will normally have fewer long-term consequences than an adult conviction. The extent to which the pubic may access a juvenile record varies by state, and in some states it is necessary to bring a motion to seal or expunge a juvenile record in order to limit or prevent public access.
Civil Demand Laws
States have passed civil demand laws that permit merchants to issue a fine to shoplifting suspects. The amount that can be demanded from the suspect may be based upon the amount that the suspect stole or attempted to steal, and whether the merchandise was still able to sell any merchandise that was recovered from the shoplifter.
Civil demand laws take into consideration that the costs to stores of shoplifting go far beyond the item stolen in any given case, so they permit demands that are significantly higher than the value of the merchandise that the suspect attempted to steal. If a shoplifter does not voluntarily pay the amount demanded, the merchant may file a lawsuit against the shoplifter, in which case many states also permit the merchant to recover attorney fees. The merchant may also report the amount demanded to credit reporting agencies, such that the amount shows up on their credit reports as an unpaid debt.
When the theft is committed by a minor, states typically provide that the minor's parents are also liable for the amount of the civil demand, with the parents also being potentially sued or having an unpaid demand negatively affect their credit.
Retailers also have the right to ban shoplifters from their premises, an action known as a trespass ban. A person suspected of shoplifting may be banned from a store, or from an entire chain of stores, for a specified period of time, or even indefinitely. If a shoplifting suspect violates the trespass ban, they can be criminally prosecuted for trespassing even if they are merely shopping at the store and intend to pay for the merchandise they have selected.
Retail Theft Databases
Many retailers maintain databases of suspected shoplifters, and many participate in reporting programs through which they exchange the identities of shoplifters who either confess at the store or who are criminally charged. Even in the absence of a conviction, inclusion in that type of database can affect future retail employment opportunities, and makes it more likely that a merchant will seek criminal prosecution if the person is again caught shoplifting.
The most common defenses to an accusation of shoplifting are that:
- The suspect did not intend to shoplift and either intended to pay for merchandise that they appeared to be in the process of stealing, or
- The suspect lacked the intent to steal an item that they took past the point of purchase or removed from the store.
Unfortunately for people who make innocent mistakes, pretty much every innocent explanation for an act that appears to be shoplifting has been used and abused by actual shoplifters who are trying to get away with their crimes.
The best way to avoid a shoplifting accusation is to avoid the type of mistake or distraction that could cause somebody to believe you are stealing.
- Don't put merchandise under coats or other items in the shopping cart, or place your personal belongings on top of unpurchased items, so that you won't accidentally overlook the items when completing your purchase.
- Don't put unpurchased items into your pocket or purse, or into a bag with items you had already purchased at the store or elsewhere.
- If you have to take a phone call or get something from your car, such as a forgotten wallet, leave your unpurchased items in the store - if you're not sure where to temporarily leave them, talk to customer service, a store greeter or a cashier.
- Keep a close eye on small children who might grab an item off of a store shelf and stick it into their stroller.
- If you're using a self-service scanner, don't forget to check your cart for items you have forgotten to scan, including small items that may be easy to overlook and items placed in the bottom of the cart.
In short, do what you can to avoid being confused with a shoplifter.
The most sensible thing to do when charged with any crime is to consult a criminal defense lawyer.
- A lawyer can advise you about whether it might be possible to avoid a criminal conviction, including the availability of any diversion or deferral programs offered by the prosecutor or court.
- A lawyer can review the facts of your case to determine if you have any potentially viable defenses to the charge, including a claim of mistake.
- A lawyer can also review any mitigating factors, facts that might make a court or prosecutor more sympathetic to the suspect's situation and more inclined to offer a good outcome.
While some shoplifters won't be able to avoid a conviction, a lawyer may be able to help them negotiate a plea to a different or lesser charge, to limit or avoid any period of incarceration, or in some jurisdictions to have their charge reduced if they successfully complete a period of probation.
In short, a local criminal defense lawyer is the person best positioned to explain to you how you might avoid a criminal conviction, and how you might minimize the longer-term consequences of a shoplifting charge.
If a shoplifting suspect does not consult a lawyer, the suspect should nonetheless research the availability of alternative dispositions, such as deferral or diversion. Sometimes information about those programs will be published on a court website or prosecutor's website. Sometimes, if asked, a prosecuting attorney will inform a suspect about possible alternative dispositions, but you cannot count on a prosecutor to provide you with the information you need to either avoid a conviction or minimize the collateral consequences of a criminal charge and conviction.