Retailers are increasingly contracting out enforcement of shoplifting penalties to private companies. A University of Chicago Law School draft paper asks whether it’s a signal of a growing acceptance of privatization in other parts of the justice system.
As Americans head to stores and malls this holiday season, many retailers have a warning for shoplifters.
If you’re caught, expect to be “sentenced” to a course run by a private company aimed at correcting your behavior–and to pay as much as $500 for the privilege.
Since 2011, large chains such as Walmarts have been contracting out their security to a for-profit corporation, The Corrective Education Company (CEC), which does exactly as its name implies: punish wrongdoers with a mandatory educational program aimed at deterring offenders from repeating their behavior.
The system borrows from a concept now increasingly popular in the justice system—termed “restorative justice” —which is aimed at ameliorating punitive measures seen as often shortchanging both victims and offenders.
But in this case, the victims are large corporations–for whom this so-called “retail justice” approach can save both money–and the time spent in referring and prosecuting shoplifting cases in courts.
But does this form of privatized–or for-profit–justice offer an alternative approach to fixing other parts of the U.S. justice system? How “restorative” is it?
According to the draft of a working paper from the University of Chicago Law School, described as the first “scholarly treatment of the ‘retail justice system,’” it’s an example of “how private industry has penetrated new parts of the criminal process, extracting admissions of guilt and administering deterrent sanctions.”
The study’s author, John Rappaport, an assistant professor of law at the University of Chicago Law School, says the CEC’s growing popularity among retailers underlines the inefficiencies of the current system at dealing with shoplifting, which cost U.S. stores as much as $18 billion last year.
Most retail outlets rarely detect shoplifters, and when they do, punishment is often uneven, he writes. Managers are left to make discretionary decisions about whether they should call law enforcement, or avoid the extra work involved on a crowded shopping day by simply kicking the offender out of the store.
Tracing the history of shoplifting, a crime that statistics suggest has been committed by one in nine Americans at some point during their lifetimes, Rappaport notes that it has seriously strained the resources of the justice system.
In four Florida counties, for example, Walmart stores (following what was then a “zero tolerance” policy against shoplifting), called the police 7,000 times in one year for suspected thefts.
More often than not, enforcement is unevenly—and inequitably—applied, Rappaport adds, noting that managers are known to turn a blind eye to well-dressed patrons while concentrating on juveniles.
In contrast, CEC claims its system helps retailers save time and money, provides a fairer application of the law, and “cuts recidivism” through its emphasis on educating errant shoplifters. According to the company, less than two percent of those who attend the six- to eight-hour course—usually given online—actually reoffend.
In exchange, law enforcement doesn’t get called and the offender gets to avoid the criminal justice system all together. (Repeat offenders are referred to the police.)
The CEC’s clients now include Walmart, Bloomingdales, Abercrombie & Fitch, H&M, and Whole Foods.
Indeed, Rappaport argues, by providing retailers with a portion of the shoplifter’s fee, the CEC has become an appealing alternative to stores wishing to recoup some of their losses.
But is it restorative justice—or a form of extortion?
Rappaport cites critics who argue that the CEC “preys on vulnerable consumers” by “wielding the threat of criminal prosecution to extract confessions and hefty enrollment fees.”
A recent article exploring the system by The Marshall Project echoes the charge by arguing “the company acknowledges that the people who enter the program are often the least able to pay for it.”
And some cities evidently agree. In 2015, the city of San Francisco sued the company on the grounds that the “CEC is little more than an extortion racket preying on the City’s residents.”
But Rappaport thinks critics miss the point.
His paper argues that shoplifters entangled in the criminal justice system won’t fare much better. The fees and fines now associated with involvement in the justice system have become an increasing burden, and that involvement is also coupled with devastating effects on an individual whose life will be forever affected by a criminal record.
He also notes that by contracting out enforcement of shoplifting, some may consider that private industry is contributing to an “overcriminalization” of an offense that may outweigh any benefit to society.
“Regardless (of) which system better deters potential shoplifters, the choice to opt for retail justice does make one thing clear,” he wrote. “Retailers believe their return on investment in deterrence is higher in the private than the public system.”
Nevertheless, calling this a “novel species of decriminalization,” Rappaport maintained that, in most circumstances, “the availability of retail justice makes shoplifting suspects better off by allowing them to opt out of the criminal justice system, with all its dangers and lingering legal consequences.”
At the same time, he argues that it can contribute to encouraging respect for the law.
Retail justice, he writes, “substitutes weaker but certain sanctions for stronger, uncertain ones.”
So, does retail justice offer a model for other forms of contracting out law enforcement?
Rappaport maintains it represents a challenge that the existing justice system has only just begun to address.
“Legal scholars long have focused on the role of police and prosecutors as gatekeepers for the criminal justice system,” the paper says. “How these actors exercise their discretion determines who escapes the criminal justice system’s net and who is entangled within it.”
Under our current system, police and prosecutors are often “late to the game” the paper says, noting that “the stationhouse phone rings only when the private gatekeepers that precede them place the call.”
“In these settings,” the paper concludes, “the question is not whether an individual suspected of crime will enter the justice system, but rather which justice system— public or private—will assess his guilt and administer any necessary sanctions.”
A full copy of the draft paper can be downloaded here.
This summary was produced by Julia Pagnamenta, a TCR news intern. Readers’ comments are welcome.