In Massachusetts and many other states, businesses are legally allowed to assess civil penalties against individuals whom they have caught shoplifting within their establishment. These penalties are in addition to any legal ramifications, such as fines, that a court may place on someone when they are found to be guilty of shoplifting. Currently the Commonwealth of Massachusetts can issue a fine of up to $250.00 to a first time offender and up to $500.00 for a second offense to an individual found guilty of shoplifting. In the case of high value products additional charges that may lead to additional fines or jail sentences can be filed. Meanwhile private retailers are legally allowed to pursue civil penalties up to $500.00 for each offense, regardless of the value of the product that was stolen. Although the intention of these civil penalties is clear, to help retailers recover any loses that they incur as a result of shoplifting and at the same time deter the act in their establishments, unfortunately in some cases the law is being taken advantage of. Often times the first time offenders that are caught for shoplifting and fined under these laws are minors. This leaves their parents financially responsible for the actions of their children, and as seen above the penalties can be expensive.
An entire business has grown out from around these laws and it often takes an unfair advantage of those who were caught stealing something of little value, who are often minors. Certain companies have partnered with retailers and make a living off of threatening all those caught shoplifting with legal action if they don’t pay the $500 civil penalty. At the same time, other law firms are marketing themselves to the defendants of such claims to represent them against the civil and legal penalties. As many people know, hiring an attorney is an expensive undertaking, and with that families of the offender are left with a choice to either pay the pricey penalties or pay for an attorney to negotiate on their behalf. Although it is a necessary part of our society to punish those who have done wrong, the way this law is currently written it places an overly harsh penalty on those who are caught shoplifting something of little value which often causes their families to suffer.
In an effort to curb these practices of charging excessive fees when an individual is caught shoplifting something of little value, Representative Brownsberger has filed legislation to bring civil penalties more in line with the crime. Under his bill, House 409, retailers would be entitled to collect a civil penalty equal to the value of the product stolen plus a fine of fifty dollars. This bill would only impact those charged with shoplifting of lower priced items and are not facing any additional criminal charges arising from the same incident. The goal is to help those who under current laws can face overly harsh punishment and more importantly shield their families from excessive financial penalties.
-Robert P. Reardon Jr
Legislative Intern, Office of State Representative William N. Brownsberger
The following websites were used to gather the information in this post and can provide some additional facts about shoplifting laws in Massachusetts.
Great summary, Bob.
This is a good bill and I hope we can move it forward.
Thanks for your attention to this issue. However, I would like to would like to expand on what I believe are additional abuses of the current civil recovery law that House 409 bill would help to redress. Mr. Reardon’s post starts out with the premise that the abuse of the civil recovery remedy always involves someone who has been “caught shoplifting,” but the presumption that actual shoplifting (theft) has occurred is not always warranted. Civil recovery (or, more precisely, the threat of civil recovery) is often used against vulnerable young people whom the shopkeeper may accuse unjustly of shoplifting. Since there’s no need for any third-party verification of the alleged crime, it’s the merchant’s word against that of a person who may, because of youth, inexperience, or embarrassment, be unable to deflect the unjustified accusation.
The law firms employed by large stores to go after alleged shoplifters don’t have to prove that any shoplifting occurred, because what they demand is the payment of a “settlement” not to pursue civil recovery through the courts. Again, this tactic is most likely to work against people who don’t know how to push back. I’d refer anyone interested in this issue to an article in The Wall Street Journal several years ago (“Big Retail Chains Dun Mere Suspects in Theft” February 20, 2008). It describes the abuse of civil penalty laws by large store chains. I particularly remember the story of a man (not a juvenile) who was stopped and detained by a large store for alleged shoplifting the drill bits that he had actually brought with him to the store. They were visible, in his pocket, when he went to pay for other items. The man offered to have his spouse bring in the receipt, but the store refused and continued to detain him. Even after he’d produced the receipt, the man later received letters from a Florida law firm demanding $3,000 and later $6,000 to avoid civil prosecution for the alleged theft.
The WSJ article also points out that, in most cases, the retailer has no intention of actually prosecuting, but is nonetheless able to recover millions of dollars from shoplifting “suspects.” One lawyer who objects to the practice told the WSJ that “[l]eading people to fear a suit when none is likely makes civil recovery a kind of ‘shakedown’.”
I am not so naive as to suggest that shoplifting does not occur or that it is not a serious crime that costs retailers millions of dollars every year. The original justification for civil recovery laws was to provide retailers with a cost-effective deterrent to shoplifting and to spare them (and the courts) the expense of criminal prosecution. But the industry’s abuse of these laws also should not be tolerated. So, in the end, this is not merely about limiting retailers from using the civil penalty to recover far more than the actual value of the merchandise stolen (if such is the case). By limiting the amount of money that a retailer can seek to recover through the civil penalty (in the absence of a criminal conviction for shoplifting), House 409 will make it much less attractive for retailers to employ “dunning mills” such as the Florida law firm that, according to the WSJ, sends out more than sends out about 1.2 million civil recovery demand letters a year (and actually sues in fewer than 10 of those cases).
I applaud Representative Brownsberger for his work to reform Massachusetts’ civil penalty law.
Thanks, Helen. This is a very helpful additional set of points.
I really hope we can move this forward.
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