This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for its newsletter, or follow The Marshall Project on Facebook or Twitter.
During an appearance last year on the morning show Fox and Friends, a former chief executive of Home Depot described a rise in shoplifting in dire terms. “Today, this thing is an epidemic,” he said. “It’s spreading faster than COVID.” The executive joined a long list of industry leaders, from Walmart to Walgreens, encouraging police and prosecutors to crack down on theft. Retailers say they’ll be forced to raise prices or shutter affected stores without help to address a growing threat—organized bands of shoplifters ransacking stores with the intent to resell the looted merchandise.
In a handful of states, lawmakers have reacted swiftly. Last year, legislators in California, Florida, Louisiana, and North Carolina stiffened penalties for stealing from stores, adding language to target people who act in concert or rob multiple outlets. Under a law amended in Louisiana, for example, anyone caught stealing as part of a group could now face up to seven years in prison.
Retail lobbyists say this kind of theft is a problem for stores large and small in every state. But it’s unclear how much worse retail theft has become. National statistics are unreliable. Nearly 40 percent of law enforcement agencies did not report their most recent crime data to the FBI, The Marshall Project reported in June. Even if they had, most police departments do not have a separate category to distinguish retail theft from other kinds of robberies and larceny.
And yet, lawmakers in at least 11 states are considering legislation that would more harshly punish people caught stealing from stores with the intent to resell merchandise.
The panic over retail theft offers a real-time look at the making of American crime policy. In the absence of reliable data, and in response to perceptions of lawlessness, legislators have doubled down on punitive policies. Many have even created a new category of retail crime in response to the industry’s concerns. In some states, elected officials have capitalized on the shoplifting uproar in an attempt to roll back recently enacted criminal justice reforms.
Critics of the legislative response say that decades of research on crime deterrence makes clear that a harsher approach won’t have the desired effect, and will exacerbate the system’s racial disparities.
“It’s like the ’90s all over again, except we have 30 years of evidence that all of that punitiveness doesn’t get us anything,” said Laura Bennett, director of the Center for Just Journalism, a nonprofit dedicated to improving journalistic coverage of critical public safety issues. “But people are still knee-jerk responding with the same tired ideas that we know don’t work.”
To make their case about rising crime, industry leaders have mainly relied on figures from an annual survey conducted by the National Retail Federation, one of the largest retail trade associations in the country. The federation estimates that stolen merchandise cost retailers $94 billion in 2021, up from $90 billion the year before. Another lobbying group, the Retail Industry Leaders Association, set the number at $69 billion a year.
The increase is not necessarily a sign of a worsening problem. Steep inflation has upped the price of goods, while the federation’s survey shows that the amount of merchandise disappearing from shelves remained stable between 2016 and 2021. External theft only represented a portion of overall losses, the survey shows. The largest share, roughly two-thirds of missing merchandise, is a result of employee theft, process failures, and unknown sources.
Still, the retail federation wants law enforcement’s help. Part of the issue, they argue, is that the people orchestrating retail crimes are sophisticated, tailoring their tactics to recent criminal justice reforms. Changes to bail policies make it easier to entice people to steal, the federation argues, because they won’t spend time in jail before trial should they get caught. The lobbyists also fear that increasing the value of goods someone must steal before triggering a felony charge—a common reform—similarly encourages thefts.
Online marketplaces such as Amazon and Facebook Marketplace have enlarged the market for stolen goods. Criminal enterprises recruit people to steal from stores in exchange for drugs or a small payment. These “boosters” may steal items from multiple stores across state lines. And in recent years, retailers say the episodes are becoming more violent and chaotic.
“Right now this type of crime pays, and it pays well to the people who are orchestrating it,” said Jason Straczewski, vice president of government relations and political affairs for the National Retail Federation. “It’s in every community everywhere, and people are fed up. So it’s up to our elected officials to set an appropriate penalty for it, and the penalties must be greater than the profits being made from the crime.”
Industry groups have seized on cities like San Francisco and New York City as epicenters of theft. Available data does not support a shoplifting explosion in San Francisco, but shoplifting complaints to the police in New York have surpassed pre-pandemic levels for the last two years. Both cities enacted policies that lobbyists—and some lawmakers—say exacerbate the problem. In San Francisco, industry executives point to a 2014 ballot measure that reclassified nonviolent thefts as misdemeanors for goods valued at less than $950. In New York City, some lawmakers have tied the shoplifting uptick to a 2019 bail reform measure that encouraged judges to use the “least restrictive” means to compel people to return to court. Lawmakers in New York have rolled back some bail provisions, making it easier for judges to hold people in jail.
“What we can’t do is allow repeated offenders to make a mockery of our criminal justice system, and repeatedly, we are losing chain stores that are closing down,” said New York Mayor Eric Adams in response to a question about organized retail crime during a recent budget hearing in Albany.
The rhetoric linking shoplifting with reform measures is out of sync with the research. An analysis of arrest data in New York shows few people committed new crimes while out on bail. And crime-deterrence research demonstrates that harsher penalties do little to prevent crime. Instead, people are much more likely to respond if they feel there’s a high likelihood of getting caught and swiftly punished.
“This is not a contested finding in the field of criminology,” said Jake Horowitz, director of the Pew Charitable Trusts’ safety and justice research. “Even a severe sanction like a potential felony, in which you’ll spend more than a year in prison, is not an effective deterrent.”
A 2018 report from Pew bears this out. Since 2000, at least 39 states have increased the value of stolen goods required to trigger a felony charge. States that increased their thresholds experienced the same overall decline in property crimes over the last two decades as states that did not, the analysts found.
The main focus, retail lobbyists say, needs to be on punishing the masterminds behind the crime rings who exploit the shoplifters. To do this, the federation encourages lawmakers to enact statutes that create a new category of crime: organized retail theft. The industry defines organized theft as anyone shoplifting for personal gain versus personal use. To date, the federation says it has helped enact such laws in 34 states.
“We want to go after the heads of the snake,” said David Johnston, the federation’s vice president of asset protection & retail operations. “We want to go after the people who are orchestrating and taking advantage of these folks who serve as boosters.”
These laws vary widely from state to state. In Georgia, for example, anyone who “intentionally organizes, plans, finances, directs, manages or supervises” one or more people to steal from a store could be charged with organized retail theft. Delaware’s statute is broader, focusing on stealing in “quantities that would not normally be purchased for personal use or consumption.” Typically, organized theft carries a harsher penalty than petty shoplifting.
Retail lobbyists argue that organized theft statutes give law enforcement a much-needed tool to combat the crime surge. But how the statutes are used is up to the discretion of police and prosecutors. Critics of the approach caution that such discretion often exacerbates racial disparities in the criminal justice system.
That’s what happened after Texas introduced an organized retail crime statute in 2007. Lawmakers defined the crime in such broad terms that any shoplifting could qualify as organized. A few years later, the legislature increased the penalties for organized theft and removed a provision that set the minimum value of stolen goods at $1,500. Now, law enforcement officers had a choice. Anyone caught stealing up to $1,500 of merchandise could either face a typical property theft charge or an organized theft charge, which carries a steeper penalty.
Michael Braun, a statistician at the Cox School of Business at Southern Methodist University in Dallas, analyzed several years of arrest data for property crime and organized retail theft. He estimates that Black people were arrested and charged with organized retail theft more than twice as often as their white peers. Hispanic people faced the steeper charge 20 percent more often than white people. The more affluent the city, the higher the disparity.
“If the store was on one side of the city line, it might be handled one way. And if the store just happens to be on the other side of the city line, it could be treated completely differently,” Braun said. “When there is ambiguity in the law, the police have a lot of discretion at the moment of arrest before a case even touches a prosecutor’s desk.”
Amending criminal codes is not easy—even in the face of compelling evidence of harm. After Braun published his findings, he testified before state legislators, offering a new definition of organized theft that would prevent law enforcement from using the statute against petty shoplifters. The proposal never made it to a floor hearing.
Some industry executives who had howled about widespread shoplifting are starting to spin a new narrative. Walgreens attempted to use out-of-control shoplifting as the reason behind its decision to close five stores in San Francisco in 2021. During a shareholder call last month, a Walgreens executive suggested that the pharmacy “cried too much last year” about how many products were disappearing from its shelves.
Walgreens executives still want law enforcement’s help, even as they walk back their claims. James Kehoe, Walgreens’ chief financial officer, told shareholders that the company’s investment into private security in response to shoplifting hasn’t paid off.
Now, Kehoe said, the company wants to try a new tactic: “More law enforcement, as opposed to security companies.”