NEAL CONAN, HOST:
This is TALK OF THE NATION. I'm Neal Conan, in Washington. As the holidays get underway, retailers go on high alert against shoplifters. Cases spike at this time of the year, and they're expected to raise losses for the year to nearly $35 billion.
What to do with those who get caught presents a problem for store owners, for the police and for the courts. Criminal penalties can include community service, fines, even jail time. Many stores pursue payment in an action known as civil recovery. The process is unregulated, and some firms that specialize in civil recovery have faced criticism for their collection practices and added fees.
If you got caught shoplifting, what happened to you? And retailers, we want to hear from you, as well. Our phone number: 800-989-8255. Email us: talk@npr.org. You can also join us on our website. That's at npr.org. Click on TALK OF THE NATION.
Later in the program, BP agrees it committed crimes in connection with the Gulf oil spill. But we begin with shoplifting, and let's begin with a caller. Elliot's(ph) on the line, Elliot calling from Nashville.
ELLIOT: Hello, (unintelligible).
CONAN: And what happened to you when you got caught shoplifting?
ELLIOT: Well, it was in a Wal-Mart Supercenter, and they marched me back to the back area of the store, and eventually made me fill out some paperwork saying that I was banned from ever coming there again.
CONAN: And what was it that you picked up?
(LAUGHTER)
ELLIOT: That's the funny part. It was a $1 glow-stick.
CONAN: And I'm sure you've gone through this 1,000 times: Why?
(LAUGHTER)
ELLIOT: Well, I didn't want to do it, but my friend made me do it, and he was the one who technically got caught. I was actually pretty good at it at the time. I was young and stupid, and I don't do it anymore. But, yeah.
CONAN: All right. And have you ever gone back to Wal-Mart, or at least to that Wal-Mart?
ELLIOT: I have, but it's - I'm always very nervous, because it's technically criminal trespassing now if I ever got caught on the property again.
CONAN: All right. Thanks very - the feeling of getting caught, though, have you ever done it again?
ELLIOT: Yeah, once or twice again, but it was always under much more high-pressure - you know, I didn't think I was invincible anymore, and I knew what I was doing was wrong. So it kind of made it not worth it.
CONAN: Thanks very much for the call, Elliot. We appreciate it.
ELLIOT: Thank you.
CONAN: Let's see if we can get one more in right now. This is Jeff, and Jeff with us from San Jose.
JEFF: Hey. How are you doing?
CONAN: Good, thanks.
JEFF: I was up in Oakland at a Wal-Mart, and my girlfriend convinced me to shoplift some makeup for her, because it was too expensive. And I had taken it out of the package and put it in my back pocket, and they stopped me right at the register, right when I was about to walk out, saying I had stolen something.
I denied it, and they told me well, it's in your back pocket, and it was. And they took me back to their security camera room, and they just - kind of whole bunch of TVs and like six guys watching the TVs, and took down my information. And they ended up having one of those collection companies mail me, and I ended up having to them pay 360 bucks. Otherwise, they would send it to the courts.
CONAN: I'm sure it was nice makeup, but I doubt it cost $360.
JEFF: Yeah, I know. Right?
CONAN: And have you ever done it again?
JEFF: No. I did a little bit here and there before that, but that was definitely the last straw. Like, my brother had told me if I ever stole, like, he would end up, like, giving me a whooping, and I did not want to face that whooping. So it's definitely scared me straight. And doing that, like, I guess my girlfriend told me that that Oakland Wal-Mart has the highest rate of theft. So it figures that they would be watching it the most. So I just made a really dumb decision, and it was the best to scare the poop out of me.
CONAN: Did she know that before she sent you in to pick up some makeup for her?
JEFF: She was actually in there with me, and yeah, like, I guess she told me that afterwards. And I was just, like, why the heck would you tell me to do that? Like...
(LAUGHTER)
CONAN: You may want to reconsider some of your other decisions in life, Jeff.
JEFF: Yeah, right. Like, I'm definitely not with her anymore.
CONAN: Thanks very much for the phone call.
JEFF: Thank you.
CONAN: Joining us now is Brad Bishop. He's a municipal judge for the city of Hoover, Alabama, a law professor at the Cumberland School of Law at Samford University, and joins us from member station WBHM in Birmingham.
Thanks very much for being with us.
BRAD BISHOP: Thank you. I'm glad to be here.
CONAN: And I suspect you hear stories like that in your court all the time.
BISHOP: All the time. Shoplifting's really an interesting crime, especially due to the fact that there's no typical shoplifter. You never know. Your callers indicate they come from all walks of life and do it for reasons they don't even know themselves. A lawyer, a doctor would not, in ordinary circumstances, break into somebody's house to steal something, but they shoplift all the time, as a general rule. You cannot tell who the criminal will be who comes into your court that's shoplifting. It could be grandmothers to teenagers.
CONAN: I'm interested: What kind of penalties do they face in your court?
BISHOP: Well, in municipal court in Alabama, the maximum fine for a shoplifter is $1,000. The maximum jail sentence is six months in jail. And there are court costs. That's in my court, which only handles misdemeanor cases. And it's interesting that shoplifting is - the penalties are based on the value of what you steal, and it varies from state to state.
Within Alabama, anything that you shoplift that costs over $500 is a felony. Anything that you shoplift that's under $500 is a misdemeanor and carries those lesser punishments. Felony theft - depending upon whether it's the first, second or third time - could wind up in considerable prison time.
CONAN: Well, I can understand that. It's interesting, one of our callers was telling us about the Wal-Mart that sent him a letter threatening to take him to court unless he paid $360, considerably more than the price of the item that he was caught stealing. Of course, he didn't get away with it. They got that back already. Is that legal?
BISHOP: It is legal in every state. Shoplifting has criminal punishments and civil punishments. The criminal punishments, of course, would be fine and potential jail time. The civil punishment is that every state now, just about, has a law in which some - even a suspected shoplifter, some you have to be a convicted shoplifter, but they - and the amount varies.
In Alabama, for example, if you are convicted of shoplifting - and they can file a civil action long before you come to criminal court. But if you - the amount of money involved in Alabama is you would have to pay twice the value of the merchandise, if the merchandise cannot be resold - if it's messed up as they take it away - and $200 just for pursuing the action and attorneys' fees and court costs up to $1,000. And that does not depend on the value of the items stolen. And they'll pursue that in civil court.
CONAN: And in civil court - and sometimes they will turn the collection over to one of those collection agencies, and they can be pretty darn persistent.
BISHOP: The literature certainly indicates that. I've never run into that in Alabama, but I understand that there are some collection agencies in Florida and other states that are pretty persistent in trying to get the money from those who have been accused of shoplifting.
CONAN: And as you look at this system, I've read that, in fact, there's powers - you know, obviously, there's this idea of citizen's arrest. But retailers have, well, more power than a citizen, but less than the police.
BISHOP: Without a doubt. Every state has shoplifting statutes. Actually, they're just theft statutes, but they cover the crime of shoplifting or taking merchandise from a retail store. And, of course, the store is private. That's not government. And the law allows a merchant or a merchant's employee, if they suspect someone of shoplifting, to detain them for a reasonable amount of time and to exert a reasonable amount of force to make sure that they do not leave the store.
And they will usually take them into a room, where they will interrogate them, search them to see if they can locate the merchandise. And a reasonable amount of time varies. In some states, they specifically say - like Indiana is two hours. They can keep you up to two hours, though, without letting you go or deciding to prosecute you.
And Alabama case law says about two hours. But a reasonable amount of force, that just depends. But they can certainly force you to go into a room and force you to stay there. In Alabama, the code section says that they can use anything - a reasonable amount of non-deadly force. That's the way the statute reads in California.
(LAUGHTER)
BISHOP: So Wal-Mart shoplifter there, I guess he's lucky he was able to call the store right now - the show right now.
CONAN: Call the show, yeah. Let's get another caller in on the conversation: 800-989-8255. Email: talk@npr.org. What happened when you got busted for shoplifting? Laura's on the line with us from St. Louis.
LAURA: Hi.
CONAN: Hi, Laura.
LAURA: So, I was 13 when my best friend and I got caught shoplifting, and we were pretty lucky because I guess at the time - we were in Utah, and at the time, they were just at the tail end of this policy where for a juvenile, it was a three-strikes-and-you're-out policy. And it was, for both of us, the first time we'd ever committed a misdemeanor. And so we got the snot scared out of us, and never did anything like that again.
(LAUGHTER)
CONAN: What was it that tempted you?
LAURA: Well, I - you know, I can't even say for sure what happened at first. We had gone on our - a little shoplifting spree in a greater part of the mall and been very successful at it. So the next day, we conned my dad into taking us back to the clothing part of the mall. And we were pretty bold at that point, so what ended up getting us caught was that we put pants on underneath long skirts, which I guess is something people do a lot.
So they caught on the cameras. And thank goodness they did, you know, because I'd hate to think how bold we would have gotten had that - had we not gotten caught. But I'm glad that they didn't overly punish us, because it was the first - you know, we just - we were young and stupid.
CONAN: OK, young and stupid. And Judge Bishop, I assume 13-year-olds, do they come into your court at all?
BISHOP: No, they go to juvenile court. In Alabama, the criminal adult age is 18. So anybody under 18 would go to juvenile court. But some states, Mississippi for example, has a law that it's - part of their statute reads that if you aid and abet a young person or encourage a young person to shoplift, that in and of itself is a crime.
And we've seen that in malls in my jurisdiction, where an adult would have a van in the parking lot, send young people into the store to steal items, knowing that if they got caught, they would have juvenile court punishment, which is far less, and would not have a criminal record.
CONAN: Laura, we're glad you've steered away from your life of crime.
(LAUGHTER)
LAURA: Thanks a lot.
CONAN: Appreciate the phone call. More with Judge Bishop in just a moment. We're talking about Judge Bishop of Hoover, Alabama. If you've ever been busted for shoplifting, call and tell us how it happened and what happened to you: 800-989-8255. Email us: talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION, from NPR News.
(SOUNDBITE OF MUSIC)
CONAN: This is TALK OF THE NATION, from NPR News. I'm Neal Conan. Shoplifting can seem like a lesser crime: kids being kids, grabbing candy bars from a convenience store, slipping lip gloss into pockets and walking out of the pharmacy. But it adds up to billions of dollars of losses for retailers every year, and according to the National Learning and Resource Center, most of the people who shoplift are adults who don't premeditate their theft, and they rarely get caught.
So if you did get caught, we want to hear from you. Tell us your story: 800-989-8255. Or send us an email: talk@npr.org. Retailers, we want to hear from you. Again, the number: 800-989-8255. Our guest, Judge Brad Bishop of Hoover, Alabama. We're joined now by Wall Street Journal retail reporter Ann Zimmerman.
Years ago, she wrote an article about civil recovery. That's the term retailers use for the process of pursuing monetary penalties from alleged shoplifters. She still gets contacted about it, including by us. Ann Zimmerman joins us now from her office in Dallas.
Nice to have you with us today.
ANN ZIMMERMAN: Thank you for having me.
CONAN: And I gather you still get questions regularly about that piece you wrote four years ago.
ZIMMERMAN: I do. I get emails, I'd say almost one a month, mostly from upset parents whose children have been caught shoplifting, who - they either have been prosecuted or - but what happens is they get these letters, these civil recovery letters. The stores turn over the reports of the shoplifting to a collection agency, and the letters say that you owe a certain amount of money.
It's usually a multiple of whatever the item that was shoplifted was, and if you don't pay, the amount will go up. And there's also - in many states, they tack on attorneys' fees. So - and these parents want to know if these letters are legal, if they have to pay. Will they sue us if - the letters say that this is to avoid a lawsuit.
CONAN: And in many cases, what you're saying is they've already dealt with the criminal justice system and paid whatever penalty was involved there, and now they get this on top of that.
ZIMMERMAN: Neal, not only have they dealt with the criminal side, in some - in many cases, it is - nothing has happened on the criminal side. The criminal side does not - the civil proceedings go on regardless of what happened, or even before a criminal case comes to court. I think the judge just mentioned that.
So they're very confused. These parents say either my children already paid a fine, or the police let them go with a slap on the wrist, but they're coming after me monetarily now.
CONAN: So why do retailers - I mean, this is in the law, so it's legal for them to do it. Why do retailers pursue it so vigorously when clearly, as we've heard, most of the people who shoplift don't get caught?
ZIMMERMAN: Well, it's precisely why they go after it. They - it is a very big expense for them. Last year, I think what's called (unintelligible) stealing and other sort of damage to goods, or disappearing goods were $35 billion. It went down slightly from the year before, but it's still a significant amount of money. And since most shoplifters don't get caught, it's expensive for them to just have big loss protection programs in their stores. So this is - the civil recovery is a way to defray the cost of...
CONAN: Oh, all those surveillance cameras and the tags and...
ZIMMERMAN: The cameras, the guards, exactly.
CONAN: ...all that system. And as you look at this, is anybody considering that some of these: A, the tactics used by the collections agencies are - can seem abusive.
ZIMMERMAN: Yes. I've heard several lawyers call it extortion because what the letters say is you need to pay this - your kid stole or tried to steal a $10 pair of sunglasses. That has come up quite a bit. That sunglass example has happened several times. The retailer recovers the item, even puts it back in stock, and then you get a letter saying that you owe 300 or $600 for this, for this item, and - or we are going to sue you. So...
CONAN: Let me bring Judge...
ZIMMERMAN: But they have no intention of suing. Most retailers would never consider suing, because that's more expensive than whatever it costs, you know, for the shoplifted item and the security costs.
CONAN: I get that. But Brad Bishop, I wanted to get back to you and say the first thing that will occur to a lot of the legal minds - maybe not the trained ones - but the legal minds in our audience: Isn't this double jeopardy? You're getting slammed on a civil side and on a criminal side.
BISHOP: Well, double jeopardy technically would have to be two criminal punishments. And in this case, it's - they're certainly getting punished twice, but on the civil side, the collection, and on the criminal side, the criminal punishment. It's a lot like, you know, if you committed a driving under the influence charge, that certainly is a crime, but your license - driver's license is probably going to be suspended, as well.
So you're getting two punishments, but suspension of your driver's license is a civil action, not a criminal action. So it's not double jeopardy. But I can understand what Ann's saying, that a lot of times, these people, it's the first time they've ever gotten caught, if it's not the first time they have shoplifted.
And you're in that room, you may be a young person. You may be a housewife with a child. And you want to get out of there as quick as you can. And when they say we're going to make you pay $200, and if you can't pay it today, we're going to sue you for it, I would imagine that a lot of times, they think that's it. Once they agree to that, they're going to let them go. But, of course, they don't. They call the police. The police come and handcuff them and take them off to jail.
CONAN: Here's an email from Jeff: I have not ever shoplifted, but my daughter, a juvenile at the time, was caught a few years back lifting a jacket from a local fashion store. I had to go pick her up. There were two police officers and the three store security employees of the store waiting for me. It ended up costing me $300 for a $50 jacket, which the store kept.
I asked my daughter why. I would have gladly paid for the jacket. She said she just wanted to do it. The collection agency had no sympathy, but the department store chain is no longer in business. Let's see if we can get another caller in on the conversation. This is Sara(ph), Sara on the line with us from Madison, Mississippi.
SARA: Hi. Yes, I was arrested several years ago for shoplifting, I think, a jacket. And I am from Mississippi, so I'm assuming the laws are similar in Alabama. But I was arrested in a mall, and they kind of did - they took me out in handcuffs. It was humiliating. And they drove around to another department store and picked up a lady in her 60s who had shoplifted about $600, so she was charged with a felony.
CONAN: So you were the equivalent of being thrown in the drunk tank, you think.
(LAUGHTER)
SARA: Yes, kind of. It was - like I said, it was a humiliating experience. I had to be on probation for six months, and I never did it again. It scared me straight. So I guess the social - the justice system worked.
CONAN: I guess it did. Thanks very much for the call, Sara.
SARA: Thanks.
CONAN: And it's interesting that she talks about the woman who got arrested for a felony. And judge, you were talking a minute ago about those guys who bring the vans around and send the kids in, knowing that they will get lesser penalties because they're juveniles. There are also - and yes, most of the people who do this are adults who do it on a just moment-by-moment basis, but there are professionals, people who do this for a living.
BISHOP: No doubt they are, and usually, those professionals have techniques that are very unusual. They may have a box with a folding lid that they can stick merchandise in. One of the big things now is these detection devices that are on most expensive clothes, that when you go through - or go out the door, they beep if you don't take those off.
And theoretically, they should be taken off at the cash register. But now, just like there are hackers that can get into any computer, there are people who can create devices that take that detection device away in the store. So some states, like Maryland that passed a law now, if you just get caught with one of those devices, whether you steal anything or not, then that is a crime in and of itself.
So there are some sophisticated criminals involved, but by and large, I think most of them in my court are people who, like your first caller, who they don't know why they did it. They can't explain to me in court why they did it. But in my opinion - and you hear about kleptomaniacs. But in my opinion, a lot of it is just people who - I call it - create their own bargain. They feel like they're charging too much, that, you know, they need to even it up a little bit. So they may pay for a lot of merchandise and take one item.
CONAN: That was known as the five-finger discount when I was growing up. Yeah.
(LAUGHTER)
BISHOP: That's right. That's - you're right.
CONAN: Let's see if we get another caller in. This is Satvir(ph) in Tucson.
SATVIR: Yes. Hi. Thank you for taking my call. I'm 62 years old now, but when I was 13 years old in 1963, I was picked up for shoplifting with a girlfriend at an Ohrbach's store. And we were quite ashamed, because we were taken into a room by the guards and made to take off all our clothes and stand naked for awhile before they called the police in.
CONAN: My goodness. I'm not sure - would that fall under the category of reasonable, judge?
BISHOP: No, that would not. In fact, you know, merchants are very nervous about civil liability. And usually, they go beyond what is actually necessary. The crime itself in every state is not - some people think you have to get outside the store with a merchandise or go to - pass the cash register with the merchandise. But the crime of shoplifting is if you just take an item and conceal it. Once you conceal it, it's like saying to the rest of the world, this is mine, and that's when the crime occurs. So the taking it out of the store is not a prerequisite. But if they do use unreasonable force, they are civilly liable.
Every state has a merchant's protection statute or a merchant's shield, which basically says as long as they have probable cause to believe that you've taken something from the store, then they are insulated from certain torts and crimes: unlawful imprisonment or unlawful detention, false arrest. But that requires there to be probable cause. But I think a strip search is certainly - would not be considered reasonable. Most stores would not even let a male employee search a female employee.
CONAN: And, Ann Zimmerman, I know in your story, there were complaints not just about the tactics of the collection agencies, but again, some of the tactics used by the security guards.
ZIMMERMAN: Yes. Some of them were kept very long time. They were intimidated. They were also forced to sign papers that said that they weren't allowed to shop in that store again for three years, even if they hadn't been proven that they had taken anything. And these - some of these kids were so scared, they just, you know, would sign anything just to get out of there.
CONAN: Satvir, thanks very much for the phone call.
SATVIR: You're welcome. And by the way, I was never charged with anything.
ZIMMERMAN: Right.
CONAN: We're talking about the crime of shoplifting. What happens when you get caught? You're listening to TALK OF THE NATION, from NPR News. And our guests are Brad Bishop, a law professor at the Cumberland School of Law at Samford University in Birmingham, municipal judge for the city of Hoover, Alabama, an expert in shoplifting law. Also with us is Ann Zimmerman, a Wall Street Journal retail reporter who wrote a piece on this four years ago and gets calls about it from people like us.
(LAUGHTER)
CONAN: Let's see if we can get another caller in on the conversation. And this is Annie, Annie with us from Prescott, Arizona.
ANNIE: Hi. My story is I was about 20 - in my mid-20s when I was arrested at Sears. And it was pretty quick, because they took me back, they talked to me a little bit. And then they filed charges, but they let me go, and I had to go to court. When I went to court, the judge gave me a choice of paying a fine and other fees and having the charge dropped as long as I attended some counseling sessions, which I did. I completed those.
CONAN: And how many of those? Was that a burdensome requirement?
ANNIE: No, it really wasn't. And it was - I want to say it was about six - it happened a long time ago, but about six sessions. But what I found interesting about it is, at the time, I was in an abusive relationship, and in speaking to the therapist and kind of getting feedback from him, I was - he felt that I was kind of acting out some control in my life where I didn't have it otherwise.
CONAN: Ah, interesting.
ANNIE: So I learned a lot from it, and I never did it again.
CONAN: And what was the item you were trying to steal?
ANNIE: I - not even - can't even remember for sure. I want to say it was, like, kid's clothing.
CONAN: Yeah. Well, thanks very much for the call, Annie.
ANNIE: OK.
CONAN: And, judge, I wanted to ask you again: We've seen in other contexts, those caught driving under the influence, for example, some places - and I know California is one of them - will require you to go to alcohol classes. Are there similar kinds of things for shoplifting?
BISHOP: Yes. And, in fact, in our court, we have what is called deferred prosecution. And especially with young people, we would prefer that they go to classes, and they're special classes set up by organizations to help young people realize why they did it, why they shouldn't do it. And, of course, you know, theft is a crime involving moral turpitude. It's a serious offense. Even if you steal a very small amount, it's still theft. And there are other serious consequences, as well. You know, if you have a theft charge, for example, and you're an immigrant, you can be deported.
And I've had several cases where people come in and they - the prosecutor says, look, this - if you want to get over this tonight, you can plead guilty and pay a $250 fine and court cost and you won't go to jail. And they're willing to plea. And then years later, when that shows up in Homeland Security, they get a letter saying, report, you know, to the immigration authority. So it's - it is serious. But our philosophy is that, you know, if you can get them to take these classes and the case is dismissed, then it's not on their record, even though they're over 18 years of age.
CONAN: Here's an email we have from Cindy: My younger sister got caught shoplifting at Sally Beauty Supply when she was 17. She stole some nail polish. She's now 22 and regrets it. When she tries to apply for jobs, her record shows up. She's lost a lot of employment opportunities because of this. She had to pay fines and face embarrassment of her name in the hometown police blotter. Don't shoplift, or you could pay for it for a long, long time. It's not worth it. Again, thanks to Cindy for that. And, Brad Bishop, thank you very much for your time today.
BISHOP: Well, thank you.
CONAN: And I certainly hope I never you see in a professional context.
(LAUGHTER)
BISHOP: Well...
CONAN: Brad Bishop...
BISHOP: I don't think you will.
CONAN: Judge Bishop is a municipal judge for the city of Hoover, Alabama, a law professor at the Cumberland School of Law at Samford University in Birmingham. He joined us from member station WBHM there in Birmingham. And our thanks to Ann Zimmerman, as well. Appreciate your time.
ZIMMERMAN: Thank you.
CONAN: Ann Zimmerman, a Wall Street Journal retail reporter. When we come back after a short break, Attorney General Eric Holder has announced several indictments and billions of dollars in penalties for BP for the 2010 oil spill. The attorney general said the criminal investigation is not over yet. We'll talk about the plea deal after a short break. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION, from NPR News. Transcript provided by NPR, Copyright NPR.