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Shoplifting from Wal-Mart can get you 12 years of prison time in Tennessee

The price of shoplifting at Wal-Mart isn’t always low.

Under Tennessee law, shoplifting items valued below $1,000 is a misdemeanor offense that carries a maximum jail sentence of one year. But that hasn’t stopped district attorneys in at least two counties from charging shoplifters who steal goods worth far less than that with burglary — a felony that can land someone in prison for up to 12 years and strip offenders of their voting rights.

On August 25, after reviewing a case in which a defendant was charged with burglary after she stole less than $100 in Wal-Mart property, the Tennessee Criminal Court of Appeals confirmed that such a charging scheme is “unreasonable, unjust, and violative of due process.”

In 2014, Danielle Chandria Jensen allegedly shoplifted items worth $72.17 from a Wal-Mart in Putnam County. Although she was initially charged with misdemeanor theft, misdemeanor assault, and misdemeanor trespass, the Putnam County District Attorney’s Office later dropped the trespass charge. At trial, Jensen’s jury could not reach a unanimous verdict and a mistrial was declared. Rather than drop the misdemeanor charges against Jensen, Assistant District Attorney Bret T. Gunn opted for a second trial one month later. He also decided to raise the stakes. A week before the retrial was scheduled to begin, the prosecutor added a third charge against Jensen: burglary, a felony offense.

Under Tennessee law, someone commits burglary if he or she “[e]nters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault.” Because it is a crime that has generally been understood to involve breaking into a closed business or home, burglary is widely viewed as a more serious offense than shoplifting — particularly shoplifting at a major retail chain that is open to the public 24-hours a day (like Wal-Mart).

Jensen’s attorney filed a motion before her retrial in an effort to have the case dismissed, arguing that the State was vindictively adding the felony charge “because [Jensen] chose to exercise her right to trial and defeated the State’s efforts to convict her.” Jensen’s attorney also questioned the propriety of adding new charges despite the facts of the case remaining the same.

In response, Gunn explained that following the mistrial, he was informed of another district attorney’s approach to prosecuting Wal-Mart shoplifters. Gunn claimed that during a prosecutor conference, an unnamed staff member from the Knox County District Attorney General’s office told him that their office charged repeat shoplifters for burglary instead of petty theft. Having learned after her original charges were filed that Jensen had previously been banned from Wal-Mart, Gunn decided to bring the more serious charge against her.

The trial court adamantly disagreed with Gunn’s handling of the case and dismissed the charges against Jensen. “A prosecuting attorney must act responsibly and use his authority and power to diligently seek justice. The resources of the Thirteenth District’s criminal justice system are not the prosecutor’s personal resources to be expended as he sees fit. Misdemeanor trials cannot be conducted as dress rehearsals for later felony trials,” the court said. “This case demonstrates poor investigation, poor charging choices, and poor presentation on the part of the State.”

The State unsuccessfully appealed the case. Judge Camille McMullen, writing for the unanimous three-judge panel for the Criminal Court of Appeals, upheld the trial court’s dismissal and sharply criticized the Putnam County District Attorney’s Office approach. “Historically, the crime of burglary served to protect people in their homes at night,” she wrote. “By charging individuals with burglary, a Class D felony, when they should only be prosecuted for misdemeanor theft or shoplifting, prosecutors are abusing their charging discretion by unilaterally and unreasonably expanding the reach of the burglary statute.”

Despite the forcefulness of the court’s ruling, this decision doesn’t appear to be enough to stop some other Tennessee prosecutors from bringing burglary charges in shoplifting cases. Indeed, as Knox County District Attorney General Charme Allen made clear, her office intends to keep charging repeat shoplifters with felony burglary.

“Citizens should be able to shop in Knox County without being exposed to chronic criminal activity,” one of Allen’s assistant prosecutors, Deputy Assistant District Attorney General Kyle Hixson, told the Knoxville News Sentinel. “These prosecutions have been a valuable tool as we seek to ensure that Knox County remains a safe place for businesses to operate.”

Whether the Knox County District Attorney’s Office’s approach will also be deemed a “unilateral and unreasonab[e] expan[sion]” of its otherwise broad powers remains to be seen.

Thanks to Jake Sussman.