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Where Do We Go from Here? In the Wake of a Legal Setback, One Pre-Charge Program Points the Way Forward

Sponsored by the Crime Accountability Partnership Program

What should the retail industry and loss prevention pros make of a San Francisco court finding that Corrective Education Company’s (“CEC”) pre-charge “restorative justice” program is improperly coercive and amounts to blackmail?

First, put it in context, advise experts at the National Association for Shoplifting Prevention (NASP). It was the ruling of one California judge, in one jurisdiction, about two elements of CEC’s program. “The injunction is not about the practice of retailers offering educational alternatives or education-based programs as a whole, but only about the practices of that particular program,” explains Barbara Staib, NASP’s director of communications.

Indeed, the judge in the case made that point in his ruling and injunction. Moreover, the ruling confirms the validity of the policies and procedures of the available option—the Crime Accountability Partnership Program, an educational alternative program for shoplifting by NASP and the technology company Turning Point Justice, which unites retailers, the courts, and law enforcement to more efficiently manage first-offender shoplifting cases.

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Second, the ruling should be seen as a catalyst to improve pre-charge programs overall, suggests a scholarly examination of “retail justice” out of the Coase-Sandor Institute for Law and Economics at the University of Chicago Law School (Criminal Justice, Inc., John Rappaport, Oct. 2017). The study issues a stark warning about the danger of society turning its back on the alternative handling of cases of shoplifting, which it notes is considered the nation’s most expensive crime. “Rather than cancel the private justice experiment, therefore, as one court is poised to do, the state should aim to foster optimal conditions for its success,” it concludes.

NASP agrees, and believes that creating “conditions for success” should serve as the retail industry’s rallying cry for the development of universal standards for this type of partnership. In an open letter to the retail industry, the group noted that keeping a keen eye on program structure, policy, educational value, and procedure—all of which must be specifically designed to ensure educational impact as well as protect from claims or litigation—is vital. “Your program must be a partnership with the community, with criminal justice, even with the offenders themselves,” said Staib. “These standards offer the best promise for a sustainable and effective solution to the collective challenges caused by unchecked shoplifting in our stores and communities.”

A Natural Evolution

Seasoned LP executives will surely recognize the timeline. As with any disruptive force, there is an initial proof-of-concept phase. Once proven viable, there is inevitable pushback from the status quo—and, often, a lawsuit or two (as hit the practice of civil demand back in its inception in the 1970s). Eventually, a more mature solution emerges to solidify acceptance. This final phase is the one that alternative retail programs to the criminal justice system should now enter, suggests both NASP and the University of Chicago study.

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Author John Rappaport concludes that educational alternative programs benefit individuals who commit low-level shoplifting. “In most circumstances, the availability of ‘retail justice’ makes shoplifting suspects better off by allowing them to opt out of the criminal justice system, with all its dangers and lingering legal consequences.” Communities are also beneficiaries, he believes. “In many settings, society should prefer retail justice to criminal justice because it generates deterrence more efficiently.” Thus, the study ultimately concludes that offering “retail justice” as an alternative “may be preferable to public criminal justice,” noting that “retail justice has the potential to make everyone better off.”

The study adds, however, that certain conditions need to be met to reach that goal. The study decries the recent court ruling—advising prosecutors to refrain from trying to use blackmail laws against the retail justice industry—but it acknowledges that a few particularized concerns exist. Most notably, that programs must be careful not to mislead suspects about the severity of the criminal justice option. NASP agrees. “The court is right in that a pre-charge program can be seen as coercive,” according to Staib. “But it wholly depends on how a program is operated and delivered.”

Like Rappaport, NASP sees a need to ensure that best practices are followed—so much so, that NASP is organizing the effort to set these standards. NASP is gathering the retail, academic, and legal experts needed to formalize the conversation and steer it down the right path, to ensure that all such programs comport with the law and are a benefit to offenders, communities, criminal justice, and retailers alike.

The Crime Accountability Partnership Program provides a model, as it already adheres to that higher standard and offers retailers an opportunity to benefit now from the more-rigorous solution that the industry as a whole is striving toward. In addition to avoiding program elements that trouble critics with respect to offenders, the Crime Accountability Partnership Program unburdens the court system, reduces the drain on law enforcement resources, and cuts retailers’ losses and saves them time. One retail participant, for example, said it’s saving 600 days worth of work hours by avoiding court time, travel costs, and other time-consuming aspects of their prior approach to first-time offenders. “It’s good for society. It’s good for law enforcement and retailers. And it’s good for offenders if they choose to do it,” said Staib.

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A Call to Action

Educational alternative programs for shoplifters are necessary to reduce recidivism. Without education, the average non-professional repeat offender will steal $1,800 worth of merchandise before they are caught again, and there is no suggestion that society has the means or the will to arrest its way out of the problem.

Offense-specific education programs are proven effective in reducing recidivism. Of shoplifters who complete an age-appropriate NASP education program – regardless of whether they voluntarily choose education on their own, participate through the Crime Accountability Partnership Program, or are compelled to participate by the criminal justice system – 98 percent don’t re-offend, according to program data and court-conducted studies.

Because educational alternative programs for shoplifting have proven to reduce recidivism, cut calls-for-service, and unclog courts, they are popular with retailers, law enforcement, and communities. They are also popular with the public.

After a recent Wall Street Journal article on the injunction in San Francisco, the presiding judge was challenged by the WSJ readership in online comments. Most called the ‘blackmail’ claim unimpressive when compared to the ultimatums regularly issued by criminal justice for speeding tickets and other minor offenses; others sarcastically thanked him for the increase in taxes that will accompany the burdening of police with $2 retail thefts.

Unfortunately, as fringe elements have taken aim at alternative programs, supporters have been much less vocal than detractors, which came as a bit of a surprise to the retailer at the center of the Wall Street Journal article. “It’s not welcome everywhere, and I want to understand that better,” the retailer’s VP of asset protection told the WSJ.

That gap—between the recognized benefits of voluntary alternative education programs and program detractors—is one reason why NASP hopes the retail industry will take up the cause. “This is a great opportunity for retailers and the retail asset protection and loss prevention industry to stand up, stand together, and be RE-counted,” the association wrote in its letter to the retail industry. “Not as the villains this time but as the victims; the victims of shoplifting and the many forms of retail theft.”

“We know that in the wake of the California ruling, the natural tendency is to shy away from similar programs—painting all programs with a broad brush” said Staib. However, industry experts believe that the LP community will look beyond one company’s practices, will take the time to examine and judge each program on its own merits or shortcomings, and as NASP indicates “will not allow a promising new approach to fall by the wayside based on one ruling, on one program, in one state.”

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