The Appeal Podcast Episode 11: Prosecutors Team Up With Walmart to Crack Down on Petty Crime

Shoplifting has traditionally been seen as a petty crime unworthy of serious punishment, much less long prison sentences. But under an increasingly popular theory of crime deterrence, prosecutors—with the help of retail lobbyists—are throwing the book at people for stealing as little as $39 worth of goods, claiming that they’ve committed burglary. Our guest, Appeal contributor Jessica Pishko, discusses this punitive trend and what public defenders are doing to push back.

Transcript:

Adam Johnson: Hi welcome to The Appeal, a podcast on criminal justice, abolition and everything in between. I’m your host Adam Johnson. Remember, you can follow us on Twitter @TheAppealPod or on Facebook at The Appeal Podcast and you should subscribe to us on iTunes if you haven’t already. According to Forbes magazine, Walmart is the largest corporation in the world by revenue generating some $500 billion in 2017 alone. Increasingly large retailers like Walmart are pressuring local police and prosecutors to level harsh criminal penalties for what used to be considered low level shoplifting offenses resulting for some, months and years in prison. Our guest writer Jessica Pishko, documented this perverse partnership between the public and private sector and how it’s being used to publicly subsidize Walmart security while throwing the poorest of the poor in prison for years.

[Begin Clip]

Jessica Pishko: Walmart in its efforts to like cut costs didn’t want to hire a bunch of people on the floor, so they decided instead to get really aggressive with this sort of burglary upcharge. I kind of call it an upcharge because in most situations the theft of something like $50 worth of items would not be considered a felony. Right? But instead this person is getting charged with a felony.

[End Clip]

Adam: Welcome to the show Jessica. I appreciate you joining us.

Jessica Pishko: Oh, thanks for having me.

Adam: So you wrote a piece in the appeal that covered something that I was pretty fascinated by. I didn’t know it existed. Rather I knew it existed, but I didn’t know the scope of it, which is a trend of big retailers like Walmart and others lobbying, pressuring and generally partnering with prosecutors and police to crack down, if you will, on shoplifting in a way that is taking what used to be considered a kind of petty crime or a small crime and turning it into something that’s pretty huge up to and including a felony. So you wrote an article that came out in May called, “How Walmart is Helping Prosecutors Pursue 10-Year Sentences for Shoplifting.” Can you give us a sense of both the specific case that you document, that of Curtis Lawson, and also the kind of broader trend throughout the country, just to kind of orient the listeners.

Jessica Pishko: So just to talk about first the case of Curtis Lawson. So Curtis Lawson was a man who lives in Knoxville, Tennessee. The day after Christmas in 2016 he walked into a walmart with a receipt and he went through the store, picked up the items on the receipt and then went to the return counter to return the items with the receipt. This is a pretty common kind of shoplifting. It’s sometimes called return fraud. It’s basically a sort of shoplifting that people use to get the cash back so they return, they shoplift items and then return them in order to get the cash. So he walked out of the Walmart and a loss prevention officer saw him and thought he looked, had been kind of following him and thought he looked a little suspicious. They detained him. So loss prevention officers sort of can detain people, um, basically pull them into a back room. And at that point, Mr. Lawson admitted that he had stolen those items and he got charged with shoplifting as well as something called criminal trespass. So what happened to Mr. Lawson was that this was not his first time attempting to shoplift or commit return fraud at Walmart. When Walmart pulled up it’s records and they found that he had been there before and had shoplifted there before. And what that means is that when you or anyone shoplifts at a Walmart or many other stores, they ask to sign a piece of paper that says you understand that if you come back to the store you will be charged with trespass. So basically you sign a piece of paper that says, ‘I will never come back to Walmart.’ Now this will sort of come up later. They don’t check this piece of paper later, but when Mr. Lawson got charged for this particular return fraud, they found that he had signed one of those papers. And so they charged him up to criminal trespass and burglary, which is a felony. So he would have gotten charged with a misdemeanor. The value of his theft was under $50, but instead he got charged with a felony of burglary.

Adam: Right. You talk about how there’s a statute in Tennessee and some other states as well, uh, that permits this burglary statute when it comes to this sort of concept of trespassing, which is to say that it’s not a public place where they go and grab something, but they’ve effectively burgled it. They’ve broken into it as if you would break into a house because they’re theoretically not supposed to be there. Now you know, that Mr. Lawson had been in Walmart several times prior and had not been arrested and the list of people who are prevented is kind of mysterious. So this seems like a rather dubious legal theory. Um, how common is this and how are courts responding to this legal theory that you can effectively burgle a public place?

Jessica Pishko: Well, I think it’s actually pretty common. So I have been pretty interested in this issue because I was mostly interested in the fact that really it’s Walmart loss prevention officers that assess this determination. So we know that this happens in many places. It happens in New York City, I think I wrote a piece, it happens in California, so in many places the, you know, the sort of idea that you’ve been kind of like you’ve been kicked out of the store, like in the olden days they might put your picture up with like a bad check or something and say like, don’t serve this customer. Right? It’s kind of the more formal equivalent of that, so the theory generally holds in general courts have held that, that the fact that the person signed that document is enough for a store like Walmart to say, well now you’re trespassing. And I agree. Normally we think of burglary is when you break into someone’s home, you know, maybe you steal like a lawn mower or a TV, right? The reason why that’s charged as a felony is because they’re sort of more of a, um, people have decided there’s more of like a public safety risk.

Adam: Yeah. There’s this sort of penetrating aspect or there’s a, there’s a violation of privacy element.

Jessica Pishko: Right. Whereas Walmart, I think the reason why it interested me is because I think we don’t have the same expectation of Walmart. I mean really the loss at Walmart is not, it’s not a public safety problem, it’s just a pure way for them to punish shoplifters.

Adam: Right.

Jessica Pishko: You know, maybe to deter, they’re not getting their money back. So I assume that this is in some way to deter people.

Adam: Right. Can you tell us a bit about local efforts and national efforts by these retailers, through their lobbying groups and trade associations to pressure prosecutors and police and increasingly lawmakers to have more severe, harsher and longer sentences for shoplifting. Um, what they’re basically doing, and this is what you note, they’re basically outsourcing their private security to the police. It’s a cost cutting measure.

Jessica Pishko:  It is. It’s actually really interesting. So I myself went down a big rabbit hole about retail and how retail associations operate and this sort of thing. So, um, you know, I mean Walmart had been in the news a few times for things like large numbers of arrests at Walmart that they were creating a lot of work for local police departments. I think there was like a longer article, I think in Bloomberg that was about this, so, you know, Walmart, the source of crime at Walmart has been kind of this issue. And what I found interesting is that, so indeed retail stores have a trade association, the National Retail Federation, they also have a publication, you know, it’s kind of journal for people in industry, um, and they have state chapters for retailers. So retailers are very concerned about shoplifting. We can sort of talk about whether that is or isn’t, you know, justified, but they’re concerned about shoplifting because quite frankly, I think shoplifting is a pretty easy thing to deter. Um, and that would directly impact their bottom line. Right? So every item not shoplifted is profit for the store. So, you know, the impulse to reduce shoplifting is pretty high. And yeah, that one of the ways they wanted to do it was to engage local law enforcement and say, well, we need you to help us reduce shoplifting. You know, there’s various other ways to deter shoplifting, like having more greeters in the store. That’s one way,  an easy way to deter shoplifting people have found, so yeah, Walmart in its efforts to cut costs, didn’t want to hire a bunch of people on the floor, so they decided instead to get really aggressive with this sort of burglary upcharge. I kind of call it an upcharge because in those situations the theft of something like $50 worth of items would not be considered a felony. Right? But instead this person is getting charged with a felony.

Adam: Yeah. I mean even setting aside the moral and ethical implications of throwing people in prison or pushing the throw people in prison for stealing $45, $50 worth of stuff. This is part of a broader trend you see in Walmart, which is where they, in large corporations that pay low wages, where they, the government subsidizes their bottom line. The government subsidizes their healthcare. The government subsidizes their, um, there was even one Walmart that had given instructions to employees to file for benefits, specifically SNAP, um, and had food drives where other employees would give food to other employees and they would not get any themselves. So you sort of see this a lot, which is that they are so pathologically obsessed with cost cutting and if you’ve ever, if you’ve ever had the misfortune of reading Sam Walton’s books on business, it’s a total pathology. Um, this seems like another version of that, a way of kind of cutting cost and offsetting their costs to the public. And of course, once you introduce, there’s no sort of non punitive state mechanism in most of these states, right? So your only option is just to call the police. Um, one thing you note is there was this, which was really bizarre, which is this restorative justice program that Walmart was attempting to start, which has a very Orwellian name, the California Supreme Court found it to amount to illegal extortion. Can you talk about that and what that was an attempt to do I, I’m kind of curious?

Jessica Pishko: Oh yeah. That’s a really interesting program. So it’s actually interesting too. So there’s a little bit of debate about the efficacy of these programs. So that’s sort of part of it too. So this company, and this is actually, um, was and is becoming a pretty common practice until San Francisco city attorney sued, so basically Walmart had decided that one of the ways they might reduce shoplifting was sort of creating their own kind of in house restorative justice. So what Walmart did was say, okay, so if you’re caught shoplifting, we’re going to take you into this room. And they hired a third party company to come in and you basically, uh, the loss prevention officer would read off of an iPad, um, they would sort of read these instructions to you and then say, ‘Okay, so at the end of it, if you pay us, I think the cost was about $200, if you pay us $200 and watch this video, we will not call the police on you.’

Adam: Okay.

Jessica Pishko:  And so for most people, this was like, they would do it either because maybe because they didn’t understand what they were signing or you know, maybe because they weren’t sure, maybe because they were frightened that the police would get called, um, which might make sense if you’re, for example, have other arrests, you might be much more worried that they’re going to call the police and you will get arrested, you’ll get another arrests on your record, get charged with a felony. So a lot of these people would say, okay, but the problem with this restorative justice scheme it was another sort of a pay-for-play scheme-

Adam: It was a profit center.

Jessica Pishko: Yeah.

Adam: God bless Walmart, the most American of corporations. Congratulations Walmart.

Jessica Pishko: Yeah. So they basically decided like, oh, so they started going after people for owing this money and turned out a lot of people couldn’t pay this money and they were sort of coercing them, extracting them, sending them mean letters, calling them. Right? So it sort of became another kind of debtor’s prison type situation where these people owed all this money. So the lawsuit in California was successful. And so the company, which was called CEC, was actually forced to get out of California, so they’re not supposed to be doing their program in California. And last I heard CEC has sort of, is revamping what they’re doing and so they had periodically revamped their program to try to comply with the law.

Adam: Because it seems like if it’s a revenue center, that creates a huge moral hazard where they’ll basically go around looking for shoplifters or accusing people of shoplifting kind of casually and threaten to call the police. It could mean it becomes an extortion racket.

Jessica Pishko: Right. I mean there was sort of no incentive not to pick up people for shoplifting, especially if you thought it was an easy way to get some money. CEC was sort of supplying and the iPads, they were supplying the information. So it was like a totally third party outsource program in general. I mean Walmart didn’t have to pay anything for this program. So it’s like, you know, quote unquote “offender funded,” right? So the money that we’re paying to do it is funding the program. So no, there’s no downside to not doing it.

Adam: I’ve heard a lot of Orwellian turns of phrase in my life, but I think referring to an extortion racket as restorative justice has got to be in the top three.

Jessica Pishko: Yeah. That’s the sort of and there’s a lot of sort of probation and parole companies that will call themselves quote unquote “offender funded,” which is supposed to be a good thing right? Like the taxpayer isn’t paying for it.

Adam: Yes. The pure taxpayer. Second only to homeowner as the highest moral status you can achieve in this country, not citizen or voter. But-

Jessica Pishko: Yeah. I mean, and I will say too, in all fairness there is, there are people who don’t think this is necessarily an entirely bad thing. So there are people, you know, this sort of, to kind of put it in context, I mean the outsourcing of criminal justice, the privatization and outsourcing, so when you think of things like private security, you know, loss prevention, the work that some insurance companies do, um, campus police, there is a sort of industry of private criminal justice, right?

Adam: Yeah.

Jessica Pishko: And so some people don’t think this is necessarily a totally bad thing. They think it has like the potential, you know, there is a good thing not to get another arrest on your record if you have arrests.

Adam: Yeah, I mean it’s one, it’s one of those things like maybe if we think really hard we can find a third option. It’s like the dystopian extortion racket or going to jail for five years. It’s like, hmm, I don’t know, maybe there’s another way. I’m going to ask what they call in the business a rhetorical question. So Walmart of course is infamously bad with wage theft. Walmart, the corporation has $1.4 billion in wage theft fines. In 2012 alone the total amount stolen and robberies in the United States, bank, residential, gas station, street robberies, burglary was only 36 percent that have taken by corporate wage theft, a lot of which came from Walmart, but of course not all of it. $340 million versus $933 million dollars or almost a billion dollars in 2012 alone came from wage theft. Um, and that’s just wage theft that was settled in courts, the number’s probably much higher. Um, can you tell our listeners how many executives or managers or district managers at Walmart have gone to prison for wage theft?

Jessica Pishko: I don’t actually know for sure.

Adam: The answer is zero. Yeah. This is, this is not, this is not so much a question as me editorializing, but I do think it’s a really interesting contrast where you’re putting someone in prison for up to 12 years for stealing less than $50 where a company can steal wage theft quite routinely and I think the figures about which actually quite shocking and something I didn’t know until recently. I’m just curious how the, how sort of prosecutors, how they possibly rationalize this disparity?

Jessica Pishko: Well I don’t know that they would have a view about, like I think if you asked the prosecutor and the prosecutors that I’ve talked to would say something like, these are two different things, I mean, chances are, I’m just kind of going to wildly speculate here, but chances are a prosecutor would say that wage theft is sort of probably harder to prove. Whereas if you catch somewhat, I mean like if you catch someone in the act of shoplifting and you collar them, they probably don’t collar them like in the olden days, but you know, you collar them and you’re like, ‘Did you steal that electric toothbrush?’ And they say yes while you sort of caught them in the act, right. There’s not a lot of, uh, there’s no dispute. And then what they’ll generally do is then get that person to sign a paper confessing that they stole it, you know, etcetera, etcetera. It’s sort of a, it’s kind of quick and easy to prove. You know, they might have video. I mean, a lot of people, quite frankly, if you say, ‘Well, you’re on video and I know you stole that,’ they’ll probably confess. I mean these are not, most of these are not sophisticated criminal organizations, although some retailers will say that there are also sophisticated organizations, they’ll call them retail theft rings.

Adam: Yes.

Jessica Pishko: Yes. Which are basically kind of the equivalent of like a shoplifting gang where people sort of go in steel large amounts of things and then resell them and certainly theft and reselling is not, it’s nothing new under the sun. I mean people do that with cell phones. People do that with various, I think that was something that people are doing it with infant formula. People are doing it with various other regular items you get. People will take them in and try to resell them, you know, so this is not, it’s kind of an ongoing issue. I think they sort of, I think that the retailer associations in their attempts to sort of get more savvy have sort of, I guess this is me editorializing now, like they sort of put some new label on it, put some new names-

Adam: You’re allowed to editorialize. Right.

Jessica Pishko: Yeah. They kind of make it sound more threatening. Right? So they sort of said, oh this is organized retail theft where we’re very concerned about these sophisticated organizations. They’ll sort of argue that that’s what it is. Now you’re also going to sweep up and awful lot of people who maybe shoplift to support a habit, I think in this, in this particular case, so Mr. Lawson in particular did have a large number of arrests on his record. I mean, he was not, he had a drug problem. He was someone who was in the habit of shoplifting to help support his drug habit. You know, he, so this, it was not, um, it was not something that I think he didn’t do. I think the question is sort of, well, you know, is this method really getting at the root of what the problem is?

Adam: Right and of course from the retailers perspective they don’t care. Um they don’t care-

Jessica Pishko: Right.

Adam: If they ruin people’s lives, they’re trying to deter people from coming in and shoplifting.

Jessica Pishko: Right. And what I thought was also interesting, and I’ll just add this too, is actually when you try to get data on shoplifting it’s remarkably difficult. So one question I had was something was something like, so how is, one is shoplifting increasing and two how bad is shoplifting? And so the data about shoplifting is done by the retailers themselves. So one method is like a survey of managers. So they survey managers and say, ‘Do you think that shoplifting is getting worse?’ And then they sort of like, oh, well most of them checked, yes. So managers think shoplifting is getting worse. Um, and I asked someone in the retail, this is actually the California retailers association. I said, well, do you have data that shoplifting is getting worse? And he said, no. He said, we don’t have data managers say it is, but he’s like, ‘No, we don’t really have data and we don’t really know.’ So he, he sort of admitted that they don’t really know if it’s getting worse or why. The data on the actual theft is done by the retailers themselves. And what they do though is they categorize everything as shrinkage right? Which can come from either employee theft or external theft, like what we would call shoplifting, but they don’t really distinguish it. So we don’t really know what proportion is shoplifting and what proportion might be employees taking things home. Um, what seems to be the case is that outside shoplifting is actually like a pretty minor part of any stores loss. But I always thought it was interesting that one of the ways they do it as like, ‘Is your impression that shoplifting is worse?’ And the managers say yes, but it’s sort of like, well, what, I’m not clear how that, you know, how you would assess that.

Adam: They poll Americans every year on whether or not they think crime is going up and every year they say yes. And every year it’s gone down since they kept records in 1960 and ‘61.

Jessica Pishko: Right.

Adam: Yeah. No, that seems very dubious in terms of its science. Um, and I think this sort of total control by the, by the retailer’s associations in the big corporate retailers that control the narrative, they control the data, they control the sort of extensive, the legislation. They write a lot of legislation. What is the other side of the equation? Are there activist groups or community groups or people who aren’t on the take from the retailers who are maybe trying to look at this differently? Uh, this is something we ask on the show a lot, which is like, what are the forces trying to push back against this?

Jessica Pishko: Right. Yeah I mean, this is why one reason why I kind of fell down like a shoplifting rabbit hole, because what interested me was sort of, I mean, these cases are not, they’re not facing, many of these people are not facing large amounts of time right? So it sort of doesn’t have the power of something like a wrongly convicted individual on death row. Um, but at the same time, in my mind in some ways this is worse because it’s sort of like a mass abuse of the process, right? So shoplifting is, is one of those crimes that is common. I mean, it’s right? I mean people are charged a lot with shoplifting. Um, and yet you can see a big disparity in how people are treated and why and what store and how the store chooses to proceed. So, you know, in my mind it was interesting because this is, it’s a, it’s a systemic problem that’s impacting a lot of people. And as you point out, these are a lot of people with very little power. Um, you know, there is no shoplifters association, right? So, you know, and a lot of these people who, who are doing it on a regular basis have other problems. I think Court Watch NYC had a story of a, of a man, a homeless man, who stole a sandwich from a Duane Reade.

Adam: Yep.

Jessica Pishko: He was arrested for burglary because he had previously shoplifted from Duane Reade before. So he was also upcharged with burglary rather than shoplifting. So, I mean it’s, it’s, you know, I’m sure that stores think that this is sort of a deterrent measure, but in my mind it’s kind of like a mass, it’s sort of taking advantage of people with very little power. Um, I will say to the credit of public defenders in Tennessee that the public defenders in Tennessee are working very much against this, like they were, you know, they have brought a case up for appeal. They had, I mean they were bringing cases to trial so that they could appeal them so that they could go to the Supreme Court and say we don’t think that they should be able to do this. So they actually did do that in one case, so, you know, in order to get to this point, you have to try the case to get an appealable issue, which is not a very, you know, this is not something that a lot of defendants want to do. Um, so in one case, this was a case called State versus Danielle Jensen and this was in another county in Tennessee. This case went all the way up and on appeal, the appellate court actually dismissed the felony charge saying that the fact that the prosecutor could not prosecute people for burglary who were shoplifting, the appellate court sort of had this amazing opinion that was like, no, we don’t, we don’t think you can do that. And in that particular case, it was in some ways even more egregious, the prosecutor had brought charges against Danielle Jensen initially for a misdemeanor. They lost and then they up the charges to a felony. Like they sort of re-charged this person on a felony. So it was particularly egregious. And so they got this great opinion and then unfortunately it went up to the Supreme Court and the Supreme Court vacated the case on a different issue. So it’s kind of unresolved law, um, but like I said, I want to give a lot of credit to the public defenders who have worked to bring these cases to trial because that’s the only way you can get legal opinions that might question this tactic.

Adam: Yeah, no, its um, I mean the sort of mindless appeal to deterrents, I mean there’s kind of, there’s no incentive to not just throw the book at everyone, right? From their perspective. Um, but you know, I mean if they chopped off people’s hands it would deter people. There has to be some other moral considerations and it doesn’t seem like, there isn’t really any institutional mechanism to push back other than the public defenders offices and uh, you know some sort of handful of, of, of, of, do goody lawyer types. And that’s, I think that’s as interesting because, you know, a lot of things, there’s usually two sides. There’s sometimes there’s two sides of the coin. Um, there’s, you know, there’s different industries with different interests, but there is no, there’s no counterbalance to that. So you have a kind of a totally perverse incentive scheme where they just try to prosecute everyone.

Jessica Pishko: Yeah. I mean one of the big challenges for a public defender in these cases, is that realistically most people who are arrested for shoplifting will plead. I mean, right. It’s one of the mass plead, whether they did it or didn’t do it, whether they signed a paper, didn’t sign a paper. I mean, these are, these are people who will probably plead out. So for public defenders to push to bring the case to trial to then appeal it, I mean these are, these are people putting an immense amount of effort because they need to get a case before an appellate court and say, look at what this prosecutor is doing we don’t think they should be able to do that. Um, and that’s, you know, that’s a substantial amount of work and it requires clients who are willing to bring that case to trial, sit around with that case while it’s pending, which is no small thing. Um, you know, so I just wanted to give credit where credit was due to, you know, lawyers who are trying the best they can to create better law through the courts. I think whether better law could get created through lobbying is kind of another issue.

Adam: Right.

Jessica Pishko: Yeah.

Adam: Again, there’s, there’s no institutional money there.

Jessica Pishko: Right.

Adam: So I think on that note we’ll wrap it up. I do think it’s always good to remember that there are people out there fighting the good fight and they’re not the majority but they’re out there. So that’s, that’s always good to hear.

Jessica Pishko: Um, yeah, I mean absolutely. Like I said, I want to, you know, I just want to note that there are people who are, who are doing it, but of course it’s hard and it takes a long time, right. It might take years and it also happens in that case on a jurisdiction by jurisdiction basis. Right? So it’s one jurisdiction in Tennessee might say you can’t do that, but that doesn’t mean they can’t do it in Brooklyn. So, and I think as criminal justice becomes more and more privatized, well, you know, I think that this is sort of the wave, like we will see places doing this, there’s not a lot of impetus to stop them, the people that they’re prosecuting or, you know, have very little say. Um, and they are also again, the kinds of cases and people that are not, you know, they’re not like front page news, right? These are not, you can get people interested in very egregious, again, like egregious wrong  conviction cases. But these are people, right? The sort of mass pleading out to things that, you know, they’re serving time for a felony when they shouldn’t. Um, that’s a real problem because a felony conviction is a strike. And so in many jurisdictions, if you have multiple felony convictions, you are facing a substantially higher prison sentence should you commit another felony.

Adam: Right.

Jessica Pishko: And that’s one of the reasons we should be very concerned.

Adam: Yeah, it’s death by a thousand cuts. It doesn’t get as much attention but it should.

Jessica Pishko: Right.

Adam: And I think it’s good you, you brought it to attention, so thank you. Thank you so much for coming on.

Jessica Pishko: Thank you. Thanks for having me.

Adam: That was Jessica Pishko, writer and contributor to The Appeal. I’m your host Adam Johnson. This has been The Appeal Podcast. Remember, you can follow us on Twitter @TheAppealPod and subscribe to us on iTunes if you haven’t already. The show was produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn and the executive producer is Sarah Leonard. Thank you so much for joining us. We’ll see you next week.