Law, College of
Date of this Version
2015
Citation
*Published as a chapter in Richard A. Leiter’s NATIONAL SURVEY OF STATE LAWS (7th ED, 2015), available at http://heinonline.org/HOL/Index?collection=nssl
Abstract
Acts of shoplifting cost retailers billions of dollars each year. In an effort to reduce the frequency and economic impact of this type of theft, all 50 states and the District of Columbia have enacted civil shoplifting statutes. These statutes, which operate independently of and in addition to the respective state’s criminal statutes, provide retailers a special civil remedy against individuals who shoplift from their stores. Most civil shoplifting statutes permit a retailer to recover from the shoplifter not only the actual damages suffered as a result of the incident of shoplifting, but also a substantial civil penalty. In Mississippi, for instance, a retailer is entitled to recover actual damages incurred (e.g., the cost of replacing the item stolen), plus a civil penalty of three times the value of the item, or up to $200, whichever is greater. The additional civil penalty is meant to reimburse the retailer for general overhead costs associated with its loss prevention program. The theory is that the shoplifter, as opposed to the retailer or its paying customers, should bear responsibility for the costs associated with shoplifting. In the adoption of these statutes, many states sought to decriminalize shoplifting by providing retailers an alternative to criminal prosecution as a means to restitution. In practice, however, most large retailers pursue criminal charges and a civil remedy. Retailers rarely file suit to collect under the civil shoplifting statute, but instead rely on the statute as authority for demanding money from shoplifters through a series of demand letters. Often, these letters are sent while the criminal charges are pending, leading many recipients to believe payment will result in the charges being dismissed, which it will not. Many merchants engage the services of independent collection firms to harvest civil penalties from those accused of shoplifting. One such firm, which represents several large retailers, reported sending over 1 million civil demand letters a year. While civil shoplifting statutes have developed into lucrative profit centers for retailers and collection firms, there is little evidence to indicate they have had any positive impact on reducing incidents of shoplifting, stabilizing the price of consumer goods, or decriminalizing acts of petty theft. Critics argue the statutes unfairly subject shoplifters to two penalties for the same offense: a criminal penalty paid to the state, and a second penalty paid to the retailer. Others have scrutinized the proportionality of the amount demanded compared to the actual direct damage incurred. In most states, a stolen candy bar can result in a civil penalty of over $100, in addition to any criminal penalty imposed by the state. Furthering this criticism is the fact that many states allow for a substantial civil penalty even when the item is immediately returned to the shelf in merchantable condition. Some scholars have also expressed concern that the statutes unfavorably impact the poor. Although a number of common themes can be identified among state civil shoplifting statutes, no two statutes are the same. This chapter provides and compares the significant components of each state’s statute, specifically as it pertains to 1) actual damages recoverable, 2) additional penalties, 3) attorney’s fees, 4) pre-suit demand letters, and 5) the impact of a conviction on a retailer’s ability to recover a civil remedy under the statute.