Resolving Organized Retail Crime through Retail Criminal Trespass Legislation

Retailers and law enforcement have done a tremendous job in the past 20 years in joining forces to create legislation and work retail crime cases throughout the USA. The creation of Organized Retail Crime Associations (ORCAs) and the work done through these partnerships is unprecedented within the loss prevention and asset protection community. Just recently an organized retail crime (ORC) case was ended in California with an $8-million stolen property recovery.

These types of cases continue the bond between law enforcement and retail. The one negative outcome of these cases is that these efforts are not impacting the ORC activity on a sustained basis because of lenient offender adjudication and punishment. ORC includes robberies, credit card and gift card fraud, burglary, prescription fraud, as well as outright merchandise theft from retail stores and their supply chains.

I’ve talked with numerous retailers over the past years since the new “soft on crime” criminal justice positions have emerged throughout the nation. Convicted offenders are being released early from prison for many reasons including pandemic concerns, incarceration costs, and other reasons. For many non-violent crimes, no punishment is directed by the court and the perpetrators are released right back on the streets, sometimes before an officer can finish the paperwork. Many retailers, especially in larger cities, report that the police will not even come to the scene of retail theft unless there is violence involved. These retailers are required to contact the state prosecutor and file their own theft cases. Every LP person I talked with is seeing a rise in retail theft, along with robberies, credit card abuse, and gift card fraud. These issues are going to intensify in the coming years. No violence, no prison. Be assured the offenders know this.

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Unlike our other elected officials, the judges and prosecutors, along with law enforcement know and understand what happens when these offenders are released from prison early if they are sentenced to serve any time at all and are quickly back into our communities without fear of retribution.

Organized retail crime laws are prevalent in the statutes of most states but the punishment for these crimes is rarely more than unsupervised probation. For example, we worked a large case in Houston, Texas, that involved a “cooperating witness” who had been arrested for felony retail theft three times in two years. He received two years unsupervised probation for the first offense, extended one year after conviction for the second offense, and extended yet another year for the third and last offense. This person was also undocumented from Central America. With the new “cash bail reform,” these criminals have even less to lose by committing crimes, especially crimes involving retail theft.

An article in LP Magazine’s May–June print edition by John Matas concerning “The Evolution of Organized Retail Crime in Retail Today” was an excellent read. He listed his top ten important ORC issues. It is a great article, and I fully agree with everything he wrote. I have worked on legislative issues with Matas, and I believe he is a true leader in this field.

Retail Criminal Trespass Legislation

As retailers, we need to supplement retail crime cases with legislation that will keep offenders out of our stores. As long as they are not in our stores, they cannot commit the crimes that hurt our bottom line.

Every state has criminal trespass statutes. Most criminal trespass laws are misdemeanors—usually a higher level misdemeanor. As we all know, state laws have levels of felony along with levels of misdemeanor. Some states have 3 or 4 levels and even some have up to 5 or 6 levels (Felony 1, 2, 3, Misdemeanor A, B, C, etc.).

Retailers and retail associations should immediately develop model state legislation for Retail Criminal Trespass (RCT) as amendments to the present criminal trespass laws. This would amend the present trespass statute creating RCT. Amending a statute is much easier to pass because we are not trying to introduce a new law or regulation. The present trespass laws and crime levels will remain in the statutes with RCT as an add-on. If a person violates RCT that person would be violating the level of crime, they were issued in their criminal trespass notice(s). For example, violating a felony RCT conviction would be a felony offense and violating a misdemeanor RCT would be a misdemeanor. Punishment for these violations would be different among states depending on their criminal statutes.

A person convicted of any retail crime can receive, as part of their probation, conditions of RCT. Theft, robbery, credit card theft, gift card theft, burglary, prescription fraud, and assault would all be covered under this statute.

Retail criminal trespass will be a “probation and condition” of the person’s plea, plea bargain, conviction, or nolo contendere. RCT is a probational contract issued by the judge and is part of the punishment received for being convicted of the crime. The offender accepts the contract and signs that he or she fully understands the limitations required of them. Retailers are not losing a customer with this person’s conviction and probation on RCT. We know that if the perpetrators reenter our stores, they are there to commit theft or fraud.

Two things will always remain the same with criminals. First, if the criminal act they are doing works, they will continue doing the same thing until caught, then slightly change their MO. Second, when offered any condition or program to keep them out of jail or prison, they will accept that offer readily.

Certain violations of RCT can also be recognized as a violent crime. Keeping in mind that if the perpetrator on RCT is in our store to commit a crime, they know they are violating their probation and committing a possible felony, therefore most likely will resist being stopped.

If the violator was apprehended committing retail crime in a chain store, state law could trespass (RCT) that person in all same branded stores in that state. This would need to be written into the model legislative bill. We might be able to work the bill where the person trespassed would involve all “same type” stores, such as all home improvement stores, all drug stores, all department stores, all clothing stores, all malls, and so forth.

Enforcing RCT

Most of us have dealt with trespass violations. These are hard to enforce with very little repercussions when the violator is confronted. RCT will be a totally different enforcement program. A person convicted of a retail crime will be placed on misdemeanor or felony probation and contracted on RCT, which will be monitored. This will be with a device affixed to the offender’s body. This device could be an ankle bracelet, wrist bracelet, or similar device. The technology contained in the device could be RFID, GPS, or other reliable technology that will identify the offender upon entry into the retailer. The mechanism will record the date and time of entry and date and time of exit. Unless the store request notification at the entry time, the store will not know the person who entered is violating RCT. We don’t want our store personnel confronting those committing RCT because of possible violence. The criminal justice system is responsible for releasing these criminals and should also be involved in helping protect retailers from these offenders.

Back in 2013, we met with a number of retail vendors concerning technology, such as EAS, facial recognition, GPS, RFID, nano technology, and ankle and wrist bracelets. The technology that best fits RCT will be written in the model legislative bill. The vendors I talked with, for the most part, agreed the best and least expensive technology for this type of use is RFID. Whatever technology used for this purpose must be fool proof.

Here is an example: A person is convicted of retail crime. The person is given one-year probation. A condition of probation is the person is required to wear a bracelet (wrist or ankle) and given an RCT warning and condition by the judge as a requirement of their probation. If the person violates the RCT and enters a trespassed store, the mechanism installed in the store recognizes the violator, and the bracelet sends a message to a “collection center” or the violator’s probation officer. Action takes place against the violator by the state with no retailer action involved. Of course, the probation officer may call for video or witness information but that would be the retailer’s only involvement. At the time of the RCT violation, the retailer would be unaware it is happening. A very important part of RCT is that the retailer faces no liability for the offender’s violation. At some point after the violation, the store manager or LP professional might be notified by the probation officer that a violation had taken place.

There are a few states—Illinois being one—that can charge a person with felony business burglary if they reenter a store after receiving a criminal trespass warning. The problem is that it is impossible to get Illinois prosecutors to take on that type of case.

An RCT warning can only be approved by a judge and a signed agreement with the case prosecutor. The violator will sign the document understanding that they are under retail criminal trespass condition. Again, action taken by the probation officer on a violation will be determined by the state statute. It might be as little as ten days of home confinement for the first offense, or jail or prison time for subsequent violations. The punishment would have to relate to the type of crime the person originally committed.

I am not advocating backing off ORC enforcement or legislation. We need to continue working ORC cases along with legislation to get these laws passed in all states.

The Cost of RCT

This is always an issue with any new venture involving technology. We believe this could be relatively inexpensive for retailers. The use of RCT can save millions within the criminal justice system. These cases can be adjudicated without court appearances, saving prosecutors, public defenders, and judges time and money. The huge costs of jail or prison expenses can be eliminated. Law enforcement time will be reduced by not having to be recalled to arrest the same offenders, which also means prosecutors will not have to once again prosecute them. Keeping those that commit retail crime out of the retail stores is beneficial to all involved. With these savings, the state criminal justice systems will have little trouble covering the cost of the technology.

Writing RCT State Legislative Bills

There are several ORCA coalitions that would likely help promote this legislation. Retailers working together could create a coalition to develop this type legislation and get law enforcement involved. Model bills can be developed, and states identified where best to introduce this legislation.

It will be easy to involve state and national retail associations to help move forward with any new legislative ideas. State associations know their legislators and know which lawmakers are themselves or have family involved in the retail industry. They understand these legislators’ positions and who will listen to retailers. The state associations can set up in-person or virtual meetings to discuss possible legislation to help retail. These associations will also help write model legislation.

Some states we found easiest to work with on retail crime issues are Arizona, Arkansas, Florida, Georgia, Idaho, Kentucky, Louisiana, Missouri, Ohio, North Dakota, South Carolina, Utah, Tennessee, Texas, and Wyoming. These are not the only states easy to work with, but some of the first states we worked when starting loss prevention legislation back in 1996. Of course, a few states will not cooperate with anything they regard as stiffer punishment for retail crime. I researched the criminal trespass laws in several of these states, and these would be easily amended to cover retail criminal trespass.

Next Steps

This legislation will take time to work into the state legislative bodies. Anytime we can show that we can add more efficiency in our criminal justice system, cut state crime statistics, save the judicial system money, save state money, and help brick-and-mortar businesses, legislators will jump on board. We can even offer “expulsion” of the crime conviction if the offender serves the probation and RCT without violations.

RCT will start slow, but once it is approved and retailers and law enforcement understand the benefits, there will be many folks keeping a distance from our respective stores. It is important to understand that we as retailers are not looking for revenge against these convicted offenders; we just don’t want them in our stores.

If we can keep the violators out of our stores, we can prevent retail crime and make our stores safer for our customers and our employees.

About the Author

Frank Muscato
Frank Muscato

Frank Muscato is a former Dallas Police intelligence detective who began his retail career in 1993 after retiring from the police department. He worked organized retail crime throughout his 20 years in retail. While also focusing on retail crime legislation, Muscato testified on retail crime bills in 34 states and before Congress. He can be contacted at fcmuscato@gmail.com.

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