Organized retail crime (ORC) is a pervasive problem that requires experienced investigators, effective communications, strong public‑private partnerships, and diligent investigations with meticulous attention to detail to build and execute an effective case. However, managing the investigation doesn’t end when warrants are served, and arrests are made. The same commitment to excellence must be achieved—and communicated at—every step of the process.
From the prosecutor’s perspective, the investigation must tell a story. Every action and process must be properly executed. All facts and details must be correctly documented. Information must be appropriately communicated. All the possibilities must be considered, and every box checked in the eyes of the judge and jury to bring the case to a successful conclusion with the prosecution and conviction of the perpetrators. This simply cannot happen without the cooperation and support of exceptional prosecutors. Understanding this aspect of the ORC investigation and what our prosecutors are looking for as the case comes to fruition is vital to the success of the investigation.
To gain more perspective, LP Magazine recently sat down with one of the best in the business. Sacramento County District Attorney Anne Marie Schubert is a career prosecutor with thirty-one years of law enforcement experience. As a Sacramento County prosecutor, she spent most of her career prosecuting some of the area’s most notorious and dangerous criminals. She is nationally recognized in her knowledge of forensic DNA, training and assisting other law enforcement agencies across the country in the use of DNA and Investigative Genetic Genealogy (IGG) to solve violent crime. During her career as a prosecutor, Schubert has been recognized by her peers with the Prosecutor of the Year Award and the POST ICI Instructor of the Year Award. Since taking office, she has been committed to working both in the courtroom and in the community to provide the highest level of public safety through prosecution, prevention, and innovation.
Based on your experience, how do you feel ORC activity has impacted your community?
As a citizen, it’s demoralizing to watch individuals steal from retailers and walk out as store associates or security personnel watch as they exit. We’ve grown accustomed to terms like “hands-off policy,” and it is difficult for many to understand. However, our frustration as prosecutors is not aimed at the retailers, but the decriminalization of crime, including the decriminalization of theft. With the exception of those involved in these crimes, the entire community is demoralized.
We find that the criminal element adapts to whatever is most lucrative and has the lowest potential for detection and/or punishment. It is a simple matter of risk versus reward, and for those involved, they feel the rewards far outweigh the risks. For some of those involved in organized retail crime, they continue to steal simply because they realize that the punishments are relatively minor in comparison to other crimes, which leads them to focus their criminal activities in this arena. We have witnessed individuals with ten‑plus page long criminal histories (RAP sheets) engaged in retail theft because the downside to this crime is no longer present in their minds. For others, ORC is simply a starting point, leading to many other types of criminal activity that greatly impacts the health of our communities and the safety of our citizens.
Every situation must be evaluated based on its own merits. However, as a prosecutor, in general terms, how important is it that information is communicated appropriately and effectively by law enforcement and retailers when presenting an ORC investigation to you?
A successful criminal prosecution is the result of a good investigation and following the facts to the appropriate conclusions. We know this from our consistent history of criminal prosecutions as our office has a reputation for holding individuals accountable for their conduct.
Experience has shown that an investigation considered unprosecutable is often a matter of miscommunication between the investigators and the prosecutors. Communicating details in a way that the facts of the case are definitive and clearly understood is crucial. This can occur in many ways, and poor report writing if often a primary contributor to the problem.
I would add that successful prosecutions have as a key component—teamwork between all parties involved. That often begins with building proactive relationships, often well before a crime even occurs. This leads to a better understanding for all involved when building a case and what is needed for the investigation to lead to a successful prosecution.
How would you prefer information be communicated to you when an ORC case is presented? How do you feel this best supports prosecution efforts?
As a general rule, the investigating law enforcement agent is our primary point of contact. However, on numerous occasions we have found there is no substitute for being able to call the contact person from the victim/retailer to conduct quick and accurate follow-up.
What are some of the primary obstacles you face when prosecuting ORC cases? How might law enforcement and retail investigators best support you in overcoming those obstacles?
There is a short and a long answer here. The long answer is related to Einstein’s definition of insanity—the repetition of the same conduct and the expectation of a different outcome. The biggest obstacle is the current state of the law. We find that the folks who are upset about that state of the law continue to vote for the same legislators who voted in favor of the decriminalization of theft and have created this environment. In that sense our biggest obstacle is voter education.
For example, in California, Proposition 47 deserves much blame for the rampant theft in our state. Proposition 47 was billed to the voters as “The Safe Neighborhood and Schools Act.” Yet it has done nothing to protect our neighborhoods and schools. This proposition reduced virtually all drug and theft crimes to misdemeanors. As a result, thieves and addicts now receive the equivalent of a traffic ticket when they commit these crimes. In California, this has produced two classes of thieves—those who steal repeatedly to support their drug addiction and those who steal to resell those stolen items elsewhere. As a result, we have not simply emboldened more crime, but further enabled addicts to support their destructive habits rather than seek treatment.
In California, our policy makers have eroded accountability through various avenues, including legislation and regulations. The consequences of these reckless policies include reduced sentences and early releases of violent criminals with little to no supervision or services. Such measures endanger our community and reduce the quality of our lives. This adds to the increase in theft and further burdens businesses and law enforcement when addressing these crimes.
To address the impact of increased theft in our communities, it is critical to develop relationships between prosecutors, law enforcement, and the retailers. A clear understanding of documenting evidence and knowing what prosecutors look for in a successful criminal prosecution forms the bedrock of a solid case. This would include video evidence, both inside and outside the business, that can support the prosecution of the case. Thorough documentation of the necessary witnesses to establish the crimes committed is critical. This includes addressing such questions as:
- Will the recording software overwrite the program after a set number of days?
- Was the merchandise retained if the theft was thwarted?
- Who can lay the foundation for the recording equipment?
In our view, if the retailer views the crime as a forensic event, an event that will later play out in court with a host of evidentiary rules, the evidence will be better documented and maintained.
ORC cases quite often span multiple jurisdictions and even multiple states. What, if anything, can retailers and our law enforcement partners do to support prosecutors in cases such as these?
Investigating and prosecuting multi-jurisdictional cases creates significant challenges for law enforcement and prosecutors. The thieves undoubtedly understand these challenges and take advantage. Documentation and the ability to network within and outside the jurisdiction is a critical tool in the prosecution effort.
For example, knowing that this same unique type of theft was committed at other stores in the same retail chain often leads to solving unsolved cases and can lead to the admissibility of additional evidence critical to a jury’s assessment of guilt. When a retailer documents that this exact same type of theft was committed in a neighboring city, prosecutors and law enforcement can reach out to the other jurisdiction and build a better case.
Considering your experience prosecuting these cases, how can the retail community better educate prosecutors on the differences between an ORC case and a shoplifting case?
Education and training for law enforcement and prosecutors on the differences between these types of cases can be extremely useful for successful prosecution. Additionally, the initial submission of the case to the prosecutor’s office for a criminal filing decision will play a critical role in establishing the type of case that can be prosecuted.
If the prosecution knows the magnitude of the crime, including the level of criminal sophistication and complexity of the case, the likelihood for success is enhanced. For instance, when the prosecution knows that multiple individuals were acting in concert for a specific goal, different charges, like conspiracy, may apply. Likewise, individuals who have a secondary role like getaway drivers, take on a different significance when that distinction is made clear in the investigation reports.
When presenting an ORC case to a judge and jury, do you believe that most have a clear understanding of the difference between ORC and shoplifting activity?
If a strong, effective investigation is conducted and a viable prosecution case is generated, it is up to the prosecutors to educate the jury on the differences between organized retail theft and shoplifting. This comes through opening statements, presentation of the evidence, and closing arguments and supported by well-managed investigations. If presented all the relevant evidence, the jury is well-equipped to come to a just result.
Do victim impact statements from retailers help in the sentencing process?
Yes, it is always important to educate the sentencing authority—the judge—on the impact the crime has on the victim and our community. Thorough and well-written victim impact statements are an important part of the process.
You mentioned the importance of effective, well-written laws and how they can influence many of today’s greatest community concerns, including ORC. Would you elaborate?
The policies and laws we pass are critical to public safety in our communities. The importance of effective, well-written laws cannot be overstated. By the same respect, the impact on the business community and quality of life of all our citizens is negatively impacted when laws are passed that eliminate and/or weaken accountability. This can be seen in the rise in theft, increased drug addiction, and the homeless crisis we are seeing in our communities. The overall increase in crime and the decrease in the quality of life is directly tied to the policies enacted by the policy makers. Until we tell our elected officials that these policies are unacceptable, we will continue to see this downward spiral.
When managing ORC investigations, effective public‑private partnerships are critical. Developing strong relationships are best achieved when we build bridges and gain perspective. Taking the initiative to build these relationships by reaching out to our law enforcement and prosecutor partners in an important first step.
EDITOR’S NOTE: Special thanks to ALTO for helping arrange this interview with District Attorney Schubert.
This story is a part of LPM‘s Special ORC Issue. Download the full issue for free here.