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Walmart Extorts Shoplifters?
The high point of the Christmas season is over; for those people who don’t shop online and still frequent malls, today there will be a rush for people to rid themselves of the ugliest, most distasteful, and strangest gifts they’ve received. But for some folks, the thrill and satisfaction of shoplifting will have colored this season, and many retailers will have paid the price.
Until recently, Walmart Stores offered a choice to shoplifters: they could pay for and complete an education program as a result of their crimes, or face possible prosecution. Unfortunately, Walmart canceled the programs when local governments questioned whether Walmart was acting legally:
California Superior Court Judge Harold Kahn said in an August ruling that the program ‘will always be extortion per California law’ as long as it involves payment to Correction Education or retailers. Only a diversion program ‘under the aegis of prosecutorial authorities’ can request money under California law, the judge wrote.
Other governments and legislators have also been critical of the program.
The background on this situation is as follows:
Walmart hired two companies, Corrective Education Co. and Turning Point Justice, to provide training to first-time shoplifters who had been apprehended at one of their 2,000 stores; if the shoplifters preferred, they could choose to be reported to law enforcement; the great majority opted for the training. Shoplifters paid these companies $350 for their online programs; they also had to make restitution to retailers, bringing total costs to $400 to $425. Other retailers were using these companies’ services, including Burlington Coat Factory, Target, Goodwill Industries, and Bloomingdale’s. To my knowledge, Walmart is the only company that has been taken to court regarding this training and has lost.
Shoplifting has significant costs in terms of manpower and resources:
The average-sized police department spends more than $2,000 responding to a single theft, according to a tool created by RAND Corporation to calculate the cost of crime. Some field hundreds or even thousands of calls each year from retailers about shoplifters.
Police departments in communities where Turning Point and National Association of Shoplifting Prevention (NASP) offer their programs report 41 percent fewer calls from participating retailers and 70 police hours saved a month, according to the company. The police department in Arlington, TX, attributed a 50 percent reduction in retailer calls — the equivalent of more than 12,000 police hours — in part to the adoption of Corrective Education programs by Walmart.
Joe Schrauder, Walmart’s new vice president of asset protection and safety, reported:
Walmart did a small test of the education programs in stores in 2013, then rolled it out to a wider group in 2015, eventually hosting the programs in about 2,000 of its 4,700 U.S. stores. He attributed a 30% decline in shoplifting incidents in 2016 and a 15% decline this year mostly to more-visible theft deterrents, such as additional employees posted at store entrances, but said the programs had a positive impact.
Walmart is discussing ways to partner with local law enforcement organizations in order to restart the program because the costs of shoplifting continue to grow.
In addition, costs to retailers continue to rise, as reported in 2016:
Shoplifting and organized retail crime are major contributors to the external loss component of inventory shrink. The NRSS indicates that shoplifting accounted for 39 percent of the reported shrink in 2015—by far the largest contributing factor to retail loss in the survey. The average loss was about $377 per shoplifting incident, up from nearly $60 in 2014. This is the second sequential year that shoplifting has surpassed employee theft as the largest contributor to inventory shrink in the United States.
A report on shoplifting prevention documented that there were 27 million shoplifters (or, 1 in 11) in the US. The costs to police departments, shopping communities, and losses in sales taxes are immeasurable. The report also stated that the profile of a shoplifter crosses all ages and socio-economic boundaries.
The issues of costs and increases in crime are one major issue. But what does the rise in these crimes say about us as a society? Shoplifting has always existed; these reports also tell us that people who shoplift are not professionals. They do it out of greed, social pressures, and addiction. I’d also suggest there is an erosion of values, a lack of respect for boundaries and the property of others, and a missing commitment to leading a moral life.
I don’t know if there is any way to combat shoplifting from a moral or values perspective. But let’s not throw away opportunities like the Walmart training which ultimately protects those customers who are not guilty of self-centeredness and thievery. We can certainly make it more difficult for the thieves and less costly for the victims who suffer the costs of this illegal and immoral behavior.
Published in Culture
I think the problem, @spin, is that there are only two choices and the shoplifter must pick one. They can’t opt out because they don’t like the choices. That’s why it can be called a threat or coercion, IMHO.
That is exactly right. And if the police and the DA always defer to the store’s preference, then it really doesn’t matter whether you call it “prosecuting” or “pressing charges.” As a practical matter, there’s no difference.
Spin, if someone sends you a demand letter saying “agree to my terms or I press charges against you”, the letter’s sender is, in effect, threatening you with criminal prosecution. That is the definition of illegal extortion.
But the reason they are in the mess in the first place is because they shoplifted. They did have other options, they intentionally removed them themselves.
Separation of powers and due process protect us, as citizens, from WalMart appointing itself as judge, jury, and prosecutor of cases of shoplifting.
Of course there is a difference. As a lawyer you must know that. WalMart WAS NOT PROSECUTING ANYONE.
Well, the alternative for them, then, is to always be prosecuted. Sounds like a better option to me.
They should have opted out of stealing in the first place, but since they didn’t, they get to choose between Door #1, which involves the long arm of the law, and Door #2, which involves a chance to turn themselves around. Legal definitions aside, giving them two choices instead of one, seems like a good idea to me.
This is nonsense, Josh, and you know it. “Judge, jury, and prosecutor?” Really? Why not also put in “executioner”? WalMart tries to do a good thing to help keep folks from going down a road, and you start calling it a power grab? Come on.
You are mis-characterizing the situation.
Contrary to popular belief, lawyers actually care much more about practical consequences and outcomes than about semantic hair-splitting. It turns out that this is true even when the semantic hair-splitting is done in all-caps.
What if WalMart said, “We won’t prosecute if you go to this class that we’ll pay for.” Would that still be extortion?
What if a lawyer sends a letter saying, “cease and desist or my client will press charges.” Is that extortion?
Why not give them three choices, if choices are universally better? Third choice: 20 strokes with a bamboo cane, and it’s over with.
In Las Vegas, if you are caught cheating the casino you could well be roughed up and tossed into a back alley. The police look the other way. For one thing, less work for them, right? Farming out justice remedies and punishments to private industry is not a good idea. How do you control for fairness and due process?
As to the “they shouldn’t have stolen in the first place”, that’s an argument that could justify any punishment, therefore invalid.
We do it already, though. Suppose somebody wins a big civil lawsuit and is “awarded” a million dollars. Collecting on that judgment is farmed out to private industry.
Yes, I think, but the question is harder if the shoplifter does not have to pay anything to anybody.
As much as we don’t trust government, we should be even more skeptical of private security arrangements with no accountability or due process. Franco sounds like our founding generation with these examples, bravo Franco.
But a million dollar judgment against someone or some entity that is insolvent? That’s a hard judgment to collect, let me tell you.
It still fits the statutory definition of extortion, but I doubt anyone would ever be prosecuted for it under those circumstances. What if they said, “We won’t prosecute you if you attend [insert denomination] church regularly”? Maybe their heart is in the right place, but I still see it as extortion. The key to extortion is not enrichment, but rather the use of a threat of prosecution as a means of coercion.
Now that is an interesting one. Assuming that the conduct in question is illegal, that demand might not be extortion because you always have the right to demand that someone cease their illegal conduct. Therefore, it is arguably not coercion. Coercion (I think) can only consist of forcing or intimidating someone to refrain from conduct which they would otherwise have a legal right to do. But I’ve never seen a case addressing these circumstances.
It was when he worked for a buy here/pay here car lot. It was owned by a new car dealer who hired a consultant who developed the program. When he left and started his own lot, he decided he didn’t want anything to do with financing. Our program is you go to the bank (or friends and relatives) , get money, and buy the car.
Those are threatening a civil suit, not criminal charges. Prosecutors aren’t involved.
Criminal acts, technically, are against the state, not the individual. Nor is a prosecutor, by the way, legally constrained if a victim of a crime refuses to “press charges”. If a prosecutor has enough evidence without the victim’s testimony, s/he can still get a conviction and send the perp to jail.
Technically, a victim can be sent to jail for not cooperating in a prosecution. Obstruction of justice.
True. But the fact that we have civil suits means that we do outsource some of our justice to private parties. Maybe we haven’t completely done away with the old systems of private justice. Not that that’s a bad thing.
Societies in which justice is completely privatized tend to have a lot of violence, so that’s not a good thing, either.
But the whole point of civil jurisprudence is to keep people’s disputes (which are an inevitable part of human life) from developing into violence perpetrated by private parties (think duels, feuds, and vendettas), and to provide a forum to air these claims where even of one loses, one hopes to have “had their day in court.”
Criminal law is very different because, as someone wrote, the wrong is deemed to have been committed against the public (even though there is most often a private victim), plus the conduct is proscribed in legislation as a crime, and the personal liberty or property or both of the accused are at stake, enforced by the state.
With most civil matters, the worst that can happen is a finding of liability and a monetary consequence. No private party can incarcerate another due to a civil wrong.
This distinction is also why, when a lawyer writes a demand letter claiming monetary damages or else a lawsuit will follow, that is not extortion, but simply demanding one’s civil due; whereas a letter claiming that if the recipient does not pay up, the lawyer or client will go to the police to file a criminal compliant is specifically prohibited unethical conduct on the lawyer’s part, who has now invited Bar discipline, up to and including disbarment.
That’s a good explanation, for which I thank you.
But being Ricochet’s token cultural relativist, I would expect that what are civil matters in some places and some times are criminal matters in others. In other words, I am suspicious whether there is everywhere a bright line separating criminal extortion from analogous actions in the civil realm.
This isn’t exactly vindication of my suspicions, but I found this article from Georgia State University Law Review: Contract Breaches and the Criminal/Civil Divide: An Inter-Common Law Analysis by Monu Bedi. The first sentence of the abstract is:
I only read part of the article, but in the introduction there was some helpful information to at least give me a clue as to what the legal community finds worth debating on topics like this.
Well, it has to be done in all caps to get you to pay attention.
If someone comes in my house and robs me and I catch him, then I turn him in to the police, am I prosecuting him? No. That’s not hair splitting, it is how it works. I’m not a lawyer and even I know that.
You are choosing to stick with “letter of the law” over “spirit of the law.”
Choice #4: don’t be absurd.
But @spin, @larry3435 is entitled to do that, isn’t he? Just as you can choose the “spirit of the law.” My thoughts on the latter position is, who gets to decide what that means? I’m not trying to take sides, but rather point out that you both have points that can be considered, even if each of you doesn’t agree with the other.
So you think that typing all caps gets people to pay attention? Okay. Good luck with that. But you did say one thing that I agree with – you’re not a lawyer. I don’t know what qualifications you think you have that empower you to lecture people who are lawyers on the law, but whatever they are they do not justify your sarcastic and condescending tone.
I would just like to caution you guys on making this personal —@spin and @larry3435 . Everyone is entitled to his or her opinion, except it’s not good form to make it too personal. Just sayin’.
It’s not at all absurd. It points out the basic problem. If a private company can administer their own punishment in lieu of prosecution, then what’s stopping them from other punishments? Right, the very law we are talking about. Me, I’d take the cane-ing. I despise those types of classes.