A bill seeking harsher penalties for shoplifting put the spotlight on how organized thieves are costing the retail industry and the state millions of dollars.
Michelle Ahlmer, lobbyist for the Arizona Retailers Association, cited a study stating that some $579 million was lost to organized groups preying on Arizona retail establishments in 2004. Nationally the loss was approximately $30 billion.
The study said that that translated to some $32.4 million in lost tax revenues to Arizona.
Some lawmakers feel the punishment may not fit the crime.
A few lawmakers have suggested taking another look at the idea of assigning felonies to certain offenses, taking away latitude from judges when imposing sentences, especially on juveniles, and providing for mandatory jail terms.
In assigning felony to offenses, one Republican senator observed that lawmakers have “watered down in their minds what a felony does to someone.”
A felony record is far graver than a traffic citation; its consequences are far reaching and difficult to reverse, according to Sen. Robert Blendu, R-12.
Blendu’s remark refers to S1446, one of three proposals that cover shoplifting. The bill, sponsored by Sen. Chuck Gray, R-19, seeks to expand the definition of burglary in the third degree to include entering or unlawfully remaining in an unauthorized area of a retail establishment or going out of an emergency or unauthorized back door in possession of unpaid goods.
A third degree burglary is a class 4 felony, which carries a presumptive sentence of two and half years.
The bill also emphasizes that a person who uses an instrument to carry out shoplifting is guilty of a felony. Current law states that to be guilty of class 4 felony, a person must enter the establishment with the instrument and have at least two previous convictions in the theft category during the last five years.
The intent of the proposal is to go after organized crime groups preying on retail establishments, according to the retail industry.
Some lawmakers, however, said that the penalty being sought is too harsh, especially since it makes no distinction between a first-time shoplifter and a perennial offender.
Another point raised against the bill is that it penalizes exiting through an emergency or unauthorized back door as a class 4 felony, which means that carting away goods using the front door, depending upon the price, remains a misdemeanor.
Sen. Richard Miranda, D-13, called it a “double standard.”
The bill, however, was substantially altered after its sponsor successfully offered an amendment. The bill was approved during a committee of the whole proceeding on March 1.
It now goes to the full Senate, and after that, to the House for further debate.
Responding to concerns, Gray offered a major change to his bill. As amended, it removes the third degree classification of going out through an unauthorized exit with unpaid goods.
“That portion is found to be unworkable in its current language and so rather than deal with it this year, we’re taking it out of the bill,” Gray said.
But the bill still addresses an important point in shoplifting.
“There is currently (a provision) in law… that says that if you bring in a booster bag, in other words a bag that is intended to circumvent the sensor devices that are at the entrances of the stores, and you shoplift using that bag, (then) that is intended to be a burglary,” Gray said.
What offenders have done, he said, is get around that by assembling the booster bag inside the store. That means that when caught, the offender cannot be charged with retail burglary but only with simple shoplifting.
The bill removed that requirement of entering with the shoplifting instrument to be guilty of burglary.
Miranda said he was “very happy” with the Gray amendment since it essentially took out its contentious points.
Retailers: Bill not aimed at occasional shoplifter
Ahlmer of the Retailers Association maintained that the bill is not aimed at the occasional shoplifter.
“The problem that they are not addressing in their statements is that if somebody goes to the front door, there is always an allegation anyway on their part that they didn’t know, that they forgot to pay for that something, and that is why we think it is more important to have a stiffer penalty if you go through the emergency door because that is a deliberate act,” she said.
In defending this provision of the bill, Gray told his colleagues during the Feb. 26 floor session that taking an armload of clothes with a shopping cart in hand and running out the backdoor is no longer a case of simple shoplifting.
Miranda, in fact, voted for the measure in the Judiciary Committee on Feb. 12. But in explaining his vote, he said: “Some of these kids out there just do really dumb things sometimes. If it is their one and only time I sure would hate for them to wind up with a class 4 felony.”
In that hearing, Gray said he agreed with his Democratic counterpart and added that he would make sure that some of the bill’s language was cleaned up.
Indeed, Gray said on several occasions he was willing to further work on the bill’s language.
In response to concerns, Gray also offered to lower the penalty for exiting through the back door to a class 5 felony, instead of the original class 4 as the bill was written. But he also sought to reduce the monetary threshold of a class 5 penalty to $100 from $2,000.
That means that a person who goes out the unauthorized backdoor with unpaid goods worth $100 is guilty of class 5 felony, punishable by one and half years of imprisonment.
Miranda said the threshold is too low.
“I just think this is very harsh for first time offenders, and it ruins a young woman’s and young man’s life,” he said.
On this point, Miranda had an ally in Republican Blendu. Another conservative senator, Karen Johnson, R-18, said she would have found it hard to support a bill that makes shoplifting a class 5 felony without differentiating between those who do it perennially and those who commit it for the first time.
Blendu said that some pairs of jeans now cost more than $100.
If a young man walks out of the store without paying for that pair of jeans, he would end up with a felony record, something that is far more serious than a traffic citation, he said.
“I respectfully disagree with what the industry wants,” he told colleagues. “And I just think that life is not that perfect. We all have made mistakes, so I’m hoping we can work through this.”
As of press time March 1, lawmakers and the retail industry were in thick of negotiations over the contentious provisions of the bill.
Miranda said he spoke briefly with a representative of the retail industry on Feb. 27 about setting the felony threshold.
“We haven’t come to an agreement on what the threshold is going to be for a class 5 felony when this type of shoplifting is done,” he said. “My preference is to have the threshold at $2,000 and at least have one prior shoplifting or theft (conviction).”
Ahlmer said the matter would be discussed further with members.
“The retail industry is experiencing a great deal of organized retail theft,” she said. “So our goal is not, with this legislation, to go after the occasional shoplifter, which we don’t condone that activity either. But these groups, it is an enterprise for them. It is their way of making a living.”
Ahlmer said the bills retailers are pursuing this session are designed to go after methods employed by crime groups.
Retailers: Shoplifting should be taken seriously
She lamented that shoplifting has become an issue that is “passé” for people. It shouldn’t be, she said, drawing attention to the analogy that big crimes start with little offenses.
“It’s just like that with your own families — you don’t let your kids get away with little things because you don’t want them to do big things,” she said.
The pursuit of S1446, along with other anti-crime bills, had spawned discussion about taking a second look at, among others, the strategy of providing stiffer penalties and assigning felonies to some offenses to deal with the complex issue of crime.
“We are watering down in our minds what a felony does to a person and life is just not that perfect. We all make mistakes,” Blendu told the Capitol Times.
“Well, I believe in punishment but I also believe in redemption,” he said, pointing out that once a felony record is stamped on someone’s file, it stays and redemption becomes very difficult after that.
“The other thing about that is that we carve $100 into the statute right now, 20 years from now a $100 item may be some earring and that means one or two things — either you’re going to go back and up it to something that is reasonable, but to me the better approach is to leave this in the hands of the judges and have a good judges,” he said.
Blendu’s remark brought to the fore discussion on another anticrime strategy — making jail time in specific cases mandatory. The idea is to automatically lock up offenders or keep them in jail longer so they are not able to further injure people.
The other side of the argument is that while penalties have been incrementally increased through the years, the move has not worked as far as bringing down the crime rate.
“I think it’s fair to say that the consensus of disinterested professionals is that the certainty and the speed of penalty are the only two things that have ever been shown to have a deterrent effect, as opposed to the severity or harshness of the penalty,” said Donna Hamm, an advocate of prison reform.
“Many crimes — not all, but many — are committed without any consideration being given by the offender to the possible penalty at the time the offense is committed,” she said.
Hamm lamented that Arizonans are very good at putting ambulances at the bottom of the cliff, rather than placing fences and barriers at the top.
In an e-mail, she listed alternatives to tackling the crime problem, such as dealing with it at its “birthing room,” she said. They included the following:
• Providing adequate social services outside and prior to the criminal justice system, more drop-out prevention programs in schools; better job opportunities for those who are not in college; day care and nutrition programs for at-risk youth; after-school programs;
• For those who go to prison, providing rehabilitation programs delivered in a professionally, responsible manner so “that we are not exporting worsened, hardened criminals into the community to exacerbate gang-related crime and recidivism rates.”