Time for Some Hard Work on Soft Sentencing

shoplifting laws

I recently watched a video of a panel discussion on organized retail crime (ORC). The panel discussed current ORC issues, legislation, coalitions, online sales of stolen property, and industry information sharing. The panel consisted of six of the top ORC minds in the industry. I knew five of the six members personally and have worked on ORC issues or cases with all but one. The panelists agreed that ORC is on the rise, and more and more criminals are committing these nonviolent crimes.

The moderator asked specific questions relating to retail theft, and these experts were quick to answer and share information on steps they are taking to battle ORC. They talked about the many successes in the past few years, which include building law enforcement interest (ORC coalitions) across the country. There are more than thirty organized law enforcement retail coalitions nationwide and more being developed every year. Getting police and retailers working together to solve these crimes is by far the most important element concerning ORC. They also discussed the importance of city, state, and national databases for information sharing on criminal activity relating to retail crime.

Online sales were discussed at length. Since many brick-and-mortar stores are now selling more of their products online, fraud has become a serious issue, and these frauds are viewed as ORC. There was conversation regarding new online marketplaces, much smaller yet similar to eBay, that are continually appearing. The panelists all agreed that these new sites will make it even easier for fences to move stolen product and that retailers need to be aware and prepared to deal with these websites.

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Questions were asked concerning ORC legislation. The panel agreed that the twenty-four states that have passed ORC legislation of some type have enhanced loss prevention and law enforcement success in arrest and prosecution of these criminals. No discussion was held of the twenty-six states that do not have ORC on the books. The panel talked about the real need for federal ORC legislation but did not mention any proposed federal bills for 2015.

All in all, the ORC panel discussion was very informational but left several questions in my mind regarding new strategies dealing with ORC issues. Little was discussed concerning the many states that are moving forward with non-prison sentencing for nonviolent crimes or the early release from prison for those criminals. I wrote an article for this magazine’s January-February 2012 issue titled “The Prisons Are Full: The Impact on Retail Crime” that addressed truth-in-sentencing laws and how they will be serious issues for retailers. Already, some states have passed legislation that threatens the ability of retail loss prevention and law enforcement to stop these criminals from coming into stores and working their trade.

Soft Sentencing in Indiana

Indiana’s legislature, which is controlled by conservatives in both houses, and its governor’s office changed many of the misdemeanor and felony laws and sentencing levels. Before these changes, theft was a felony regardless of its dollar value, and a misdemeanor catch-all charge of conversion existed for minor thefts. Indiana changed all that in 2014. Theft under $750 is now a misdemeanor. Even worse for retailers, the four levels of felonies (A, B, C, and D) have been changed to seven levels (murder and felonies 1 through 6). Of course, theft and fraud are Level 6 felonies. The legislature also changed laws regarding prison sentencing. Those committing nonviolent crimes will not be sentenced to prison but rather dealt with at the community level. Programs (which many people suspect will be mostly soft probation) are supposed to be set up to help these nonviolent criminals. We know that many of these criminals are addicted to some form of narcotic or drug and, if not sentenced more harshly, will almost certainly continue with their behavior. Criminals involved in these types of low felonies realize the best payoff is retail theft. Although fences are readily available, many boosters know they can sell their stolen products online without the need of a fence. Indiana will become the place to be for those involved in ORC, both boosting and fencing.

Other states are planning to adopt similar truth-in-sentencing laws in 2015 and many more in 2016. Alternative legislation being worked in those states was not discussed on the panel. I am not blaming any of the panelists regarding these changes. It’s certainly not their fault. But it wouldn’t be hard for chain stores’ government relations departments to get involved to push more aggressive sentencing.

Getting states to stop making changes to sentencing is probably impossible, but it would be easy to write language into proposed bills to help protect retailers from these nonviolent criminals. For example, an Internet fencing bill would not be difficult to write. Those in government relations can make legislators aware of these serious crimes and their impact on retail business, taxes, and customers, asking for language that helps protect retailers from these emerging online sales.

Also write bills that make these crimes more seriously punished if drugs are involved in the crime or if committed by persons with prior convictions of any type of retail theft; bills that enhance the penalty when crime is committed by two or more convicted felons or by undocumented persons; and bills that enhance sentences if store employees are involved or (and this is important) if the fence is buying stolen property while employed by or owning a retail business.

Technology

Technology is also an issue not discussed on the panel. We have technology available to assist retail in fighting ORC. Camera systems are excellent and have come a long way, and emerging camera technology is getting better every day. RFID should continue to help some retailers and will become an even more needed asset going forward. GPS has proven itself repeatedly, but we have yet to touch on the many possible future uses of GPS. There are so many possibilities for GPS to contribute to loss prevention and law enforcement that it may actually be the most underutilized tool available to help prevent retail theft. Though there are legal issues involving some uses of GPS, I really believe through perseverance some of these issues can be worked out legislatively.

Retailers must continue to explore these technologies as states reduce punishment on convicted felons. As these criminals remain on the street, we lose the ability to reduce rampant retail crime. I think it’s very important to look down the road at new ways to keep convicted felons out of our stores. Many states have trespass laws, but what convicted felon worries about these misdemeanors? What thief can’t find another store with the same merchandise to steal? Legislation can surely help stiffen the consequences of violating these types of bans.

A good start would be legislation that bans convicted retail-theft felons from entering retail stores during their probation or a portion of their probation. Using GPS technology might work well in this instance. If a person can’t enter the store, they can’t steal from the store. Recruiting others to assist them might be their next tactic, but we could put language in the law to address that aspect also. Though these changes can’t be done in the next twelve months, I think they can be done! Working legislation can be difficult, but we must educate legislators as to what is involved in these losses. Most will listen. Legislators understand that retail is the second-largest industry in our country, and many legislators are involved or have family involved in our industry.

Next Steps

Much can be done, but someone has to be willing to step up to the plate and lead the way. One of the legislators involved in the recent 2014 Indiana changes said she heard very little from retailers or other businesses. She knew little about ORC and only vaguely recalled talk from previous sessions about changing some retail laws. So it appears that government relations departments did little to prevent the changes that took place in the 2014 Indiana legislative session. We will have to live with these new laws unless someone takes the initiative to try and amend some of these changes.

We can all agree that legislation is an important avenue in controlling ORC. With that thought, I plan to meet with officials from the Coalition of Law Enforcement and Retail (CLEAR) to discuss scheduling a two- to four-hour block at the next national conference. I hope to get interested loss prevention and law enforcement professionals together in round tables to write some new model legislation and possibly even amendments to current ORC legislation to make it stronger. These will be model drafts our industry professionals can take back to their home offices. I believe together we can generate interest in combating truth-in-sentencing laws. We can implement changes to legislation that will help ensure punishment is a fair representation of the seriousness of the crimes committed, rather than continue allowing ORC to be the most profitable, lowest consequence crime in society today.

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