The Debate Over Restorative Justice Programs

A recent article by the American Bar Association’s ABA Journal posed the question, “Are private education programs for shoplifters a second chance or extortion?”

The article begins by describing an incident involving a woman in a wheelchair the was stopped when she hung a child’s purse and other items on her wheelchair so that she could use her hands, and “forgot about them” as she left the store. The value of the goods amounted to six dollars. A loss prevention representative then escorted her back into the store and accused her of shoplifting.

According to the woman, she was “interrogated and intimidated” into signing up for a restorative justice program—a private online educational program that may cost between $400 – $500. The woman agreed at the scene to enroll but never completed the program, later stating that she only agreed to enter the program because she felt “bullied by the guard’s threats to call the police. She later filed a lawsuit that was ultimately dismissed, and her claims of coercion were not heard by the courts.

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Quite clearly, the circumstances described in this particular situation paint a very dark picture of the role of loss prevention in those situations where shoplifters are apprehended, and is in no way exemplifies a typical shoplifter apprehension or how the process should be managed. However, these circumstances pose many debatable but important questions.

Should the Police be Called?

Retailers are in business to sell merchandise and enhance the profitability of the company—not to apprehend shoplifters. But with retail theft costing retailers tens of billions of dollars each and every year, many retailers find it necessary to apprehend shoplifters and deter the criminal activity that can devastate a retail business.

Retailers don’t like to call the police on shoplifters. Due to the demands on local law enforcement officers, it may take hours for a response to some shoplifter calls, keeping retail employees from other duties and potentially putting all parties at risk in what can be a volatile situation while waiting for police to arrive. There are also the costs of processing the incident, court appearances, evidence management, and other related expenses that can cost the business labor hours and financial resources.

From a community standpoint the entire process of prosecuting a shoplifter can be very expensive, and can ultimately cost thousands of dollars from the time of arrest through the court system at up to the point that a decision on guilt or innocence is determined.

Just as significant can be the costs to the perpetrator who must deal with legal expenses, lost work time, and potentially the loss of personal freedom based on a poor decision. Shoplifting a $20 item can cost hundreds and even more than $1000 in legal fees and court costs. But there can be many additional costs as well, such as the stress and anxiety that can wreak havoc on individuals and families as they move through the criminal justice system.

Restorative justice programs can offer an alternative to these costly problems to everyone’s benefit. This collaborative process is intended to create a process where offenders can learn from victims and the community to make amends. This is intended to be a cooperative process rather than adversarial; one that is intended to help make things right, show perpetrators the impact that their crimes can have, and take the steps to see that the behavior doesn’t happen again.

Participants must be first-time offenders, sober at apprehension, and not clearly involved in organized retail crime. Eligible suspects are shown a short video about the program and then asked to choose between signing up or being exposed to conventional prosecution. Those who sign up complete an online course that’s intended to make them examine why they shoplifted, and why it’s a bad choice. They pay restitution for the thefts and foot the bill for the courses.

Thus far the results have been very promising, with participating retailers cutting their calls to police in half. They are spending less time dealing with offenders, and repeat shoplifting offences for those going through the programs are less than 5 percent.

Coercion Claims

Safeguards against coercion of suspects have been implemented by these companies to ensure that those apprehended hear the same message regarding the course and their choices. Individuals are told not to sign up for the programs if they’ve been wrongly accused. Potential participants are also given time to make up their minds, with 48 to 72 hours typically given to make a decision. The companies managing the programs claim that “this is not meant to be a high-pressure type of situation.”

But there are those that strongly disagree. Lawsuits have claimed that suspects are forced to sign confessions in a “highly coercive” situation: directly after being apprehended, in an isolated room, with limited time to make a decision, and loss prevention representatives threatening to call the police. Lawsuits have claimed that the initial video is full of false and misleading statements. If the students don’t pay, one suit alleges, the company threatens to give the confessions to police.

Claims of extortion have been made against these firms, with suits filed that claim that individuals are forced to choose between entering a program or being prosecuted for situations where they may or may not have been involved in a criminal incident.

Summed up by one attorney, “Their understanding has been…that they are either going to have an interaction with the criminal justice system or they’re going to pay the money for the class…and legally, that’s extortion. You can’t say to somebody: ‘We’re going to press criminal charges unless you pay this money.’”

The article summarized here originally appeared in the June 2016 issue to the ABA Journal under “Retail Justice: Are private education programs for shoplifters a second chance—or extortion?”

Training, Implementation, and Management

The ABA Journal posed some important questions regarding the practice and effectiveness of restorative justice programs, but one might argue that several additional questions need to be answered.

Stories regarding these programs almost always lead with an example describing an individual that is placed in questionable circumstances and appears to have been abused by a system and a practice that is biased or broken. Why? Because it clearly illustrates what can go wrong when such programs are in some way mismanaged. These incidents must be minimized and eliminated whenever possible, and it is the responsibility of all those involved to ensure that appropriate steps are taken to make that happen.

To sum up the intended purpose of these programs, first-time shoplifting offenders are being offered an opportunity to avoid criminal prosecution in situations where there is a preponderance of evidence to support criminal prosecution. Rather than the significant time and expense to all parties involved, including those the offender would incur, an alternative solution is being offered that will benefit the offender, the company, and the community at large. For an overwhelming majority of offenders, this behavior will not be repeated again.

How many would debate this proposed solution? If effectively managed, how many would consider this solution “extortion”?

Unfortunately, concerns come into play based on other factors. For example, in the situation described with the shoplifter in the ABA Journal article, was intent established? Was there a preponderance of evidence to support criminal prosecution? Have the loss prevention representative and the company that he or she represents established that this represents an incident that should be pursued? Was the event reviewed by the company to ensure that the right decision was made? What steps were taken by the restorative justice company to ensure that the individual meets the necessary criteria?

Appropriate training and education must be established with any and all employees that are responsible for implementing a program or practice carried out by the loss prevention department. Clarifying the circumstances, policies, and practices for managing a situation that would qualify for restorative justice considerations should follow the same standards that are established for other critical objectives in the department. Further, checks and balances should be established to ensure that these standards are effectively implemented in the stores to avoid potential concerns.

Additionally, companies that are responsible for such programs must also provide sufficient education to the retail organizations that use their services to ensure that employees are appropriately trained. They should have established procedures for assisting the companies that they represent to help leadership manage the service. As well, checks and balances should be part of their protocol to help avoid these events from occurring.

There are many retailers and solution providers that work hard to take these steps. However, in order to avoid the pitfalls of these potential industry solutions, all of those involved should show due diligence to ensure that we manage the solution effectively. Poor decisions and unintended results might occasionally result, but most can be avoided with proper controls and common sense.

As retailers continue to search for effective solutions to the many challenges that are faced in today’s retail environment we must continue to search for the best and most productive results. This also requires that we continue to challenge ourselves and our decisions to ensure that we provide the best possible results.

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