Some stores end controversial program to crack down on shoplifters

Defense attorneys: 'Civil demand letters' can be money makers for retailers

By Scott Johnson - Reporter, Jodi Mohrmann - Managing Editor of special projects, Eric Wallace - Senior Producer, I-TEAM

JACKSONVILLE, Fla. - If you get caught stealing from a store, you could face jail time and fines. What you might not realize is some retailers are using their own form of punishment against shoplifters. But, with some attorneys considering it a form of "private prosecution," and one judge calling it "extortion," some major retailers are backing away from the controversy.

"Retail is actually my specialty," said Security Consultant Jeff Moore, who has worked with retailers nationwide for 20 years examining their loss-prevention measures.

Moore said the crime of shoplifting really does cost retailers big money.

"It's billions of dollars that are actually stolen," he said.

According to the National Association for Shoplifting Prevention, or NASP, more than 10 million people have been caught stealing in the last five years. So, could stores really be making money off shoplifters?

"Shoplifters are just another revenue stream for the retailers," said Matt Horak, a criminal defense attorney. "I deal with this probably once a week."

Horak says retailers beef up their bottom line through "civil demand letters."

"I think when it starts becoming a money-making process in prosecuting the criminals, then it's starting to get a little bit into a gray area there," added Moore.

Here's how a "civil demand letter" can work: In-house loss-prevention officers stop a shoplifter in the act. They then tell the shoplifter that he/she won't be prosecuted if he/she signs a letter taking responsibility and agreeing to reimburse the store anywhere from $200 to $1,000.

"Every retailer has different forms of this document," explained Horak. "Most of the ones I've seen do not have any language about 'not prosecuting the person through the criminal justice system.'"

That's a concern for Criminal Defense Attorney Annabelle Nahra who works in Miami. She shared a few "civil demand letters" that she has seen, including one in English and Spanish from a grocery store chain.

"I'm not sitting here and telling you that people should go out there and steal things from companies. And, I understand that companies have the right to protect their products and the people who are working there. But, the way in which the system is being set up is the individual is set to be prosecuted twice," Nahra explained.

Attorneys say, some retailers have still gone forward with prosecution -- even though they have a signed letter from the shoplifter agreeing to restitution. 

In a lawsuit last summer, a California judge called a program Walmart relied on as, “extortion.” Walmart ended its shoplifting diversion program in December.

Macy's ended its program in 2016 after it was characterized as a "coercive collection practice” in a class-action lawsuit in New York. 

Every state allows it, and Florida does so under the state's Civil Theft Statute. It allows up to three-times the amount of actual damages. 

But News4Jax Crime & Safety Analyst Gil Smith said there's a reason for this. He said you have to take into account what goes into a store getting its money back after theft.

"This just doesn't cost me a hundred, it costs more," said Smith. "Then, there's also security procedures where they actually have someone watching video cameras, so it goes into their costs also. And, there's also legal fees. For the most part it should act as a deterrent."

But, Horak tells his clients not to pay.

"It's definitely flipping the script here and trying to bill that person for money they are not entitled to," he said. 

Horak added, retailers are unlikely to come after you.

"It's a numbers game. They send out as many letters as they can just to see how many people are going to pay this money they don't have to pay," he said. "This is not an innovative revenue stream. This is definitely shady business."

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