Wednesday, January 23, 2013

Considering cost of incarceration in what is really shoplifiting

This blog post by Doug Berman at Sentencing Law and Policy sort of reminded me of a class of cases that has been bothering me of late.  We occassionally see shoplifting cases (fairly low level misdemeanor offenses) transformed into aggravated burglary cases (pretty high level felony offenses) when a person has supposedly been "banned" from a store.

The elements of burglary are that a person enters or remains in a building without authority to enter or remain and with intent to commit a theft therein.  It's aggravated burglary if another person is present in the building. 

The typical scenario that we see is that a person is caught shoplifiting $20 worth of property in some store, say Wal-Mart.  Wal-Mart employees may then tell that person "You are hereby banned from all Wal-Mart property anywhere on earth."  Then, if that person is later caught shoplifting $20 worth of property in a Wal-Mart, the state doesn't just prosecute for shoplifting and/or criminal trespass, but for aggravated burglary, on the theory that the person is not authorized to be in the building and there is almost always another person present in a business that is open to the public.  Aggravated burglary is a pretty severe offense. If the client has a bunch of misdemeanor battery convictions or a couple of residential burglaries or some combination, the presumptive prison sentence is ten years.  As noted in the blog post, incarcerating a person for ten years costs at least several hundred thousand dollars.  Even if the client has no significant criminal history, the prumptive prison sentence is a little less than three years at a cost of tens of thousands of dollars.

Now I know that shoplifting is a real problem for the Wal-Marts of the world.  But I wonder if prosecutors and judges are accurately taking into consideration the cost of incarceration.  The state of Kansas is spending hundreds of thousands of dollars of taxpayer money incarcertaing persons to protect Wal-Mart from a $20 shoplifter?

This is an abuse of this statute.  The "aggravated" part of aggravated burglary seems to me to be directed at residential burglaries, where people are in the home, not a business that is open to the public where of course a person is always present.  In fact, many states and the Model Penal Code specfically exempt businesses open to the public from their buglary statutes.  Shoplifters and trespassers should be prosecuted as shoplifters and trespassers and sentenced appropriately.

I'm often surprised that judges in Kansas impose decade long sentences in these types of cases.  Maybe putting on evidence of the costs of incarceration or requiring judges to consider the cost of incarceration in relation to the cost inflicted should be a part of the sentencing equation.

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