‘Smash-and-grab’ robberies fuel new laws, but critics question the need

Gov. Shapiro signed legislation creating a new first degree felony and a dedicated office to investigate shoplifting gangs

By: and - December 23, 2023 7:00 am

Citing “theft and organized retail crime,” Target said it would close its East Harlem location along with eight other stores across the country. (Photo by Spencer Platt/Getty Images)

Even before Virginia lawmakers passed a tough new law against organized retail crime earlier this year, Bradley Haywood, a public defender in Arlington, Virginia, challenged the rationale. The idea that retailers in the state had lost billions to organized theft was a myth manufactured by retailers themselves, Haywood argued.

Now the outspoken lawyer has fresh ammunition for his effort to repeal the law: The National Retail Federation earlier this month retracted its April assertion that nearly half of the $94.5 billion in merchandise that went missing in 2021 was stolen by retail rings. The true percentage was only a small fraction of that amount, about 5%.

According to the National Conference of State Legislatures, Virginia is one of at least 15 states that enacted retail theft laws over the past two years in response to reports of highly organized theft rings invading stores across the country and fleeing, collectively, with billions of dollars in merchandise. Social media posts showing thieves storming retail outlets helped fuel the crackdown.

Ten states passed new laws this year, either toughening punishment or creating task forces to study the potential threats posed by organized theft rings. At least one state — Texas — enacted two laws, one creating a task force and the other allowing potential thieves to avoid prosecution if they agree to an education course designed to steer them away from breaking the law.

In addition to Texas and Virginia, Alabama, Indiana, Minnesota, Nevada, New Mexico, Oklahoma, Oregon, and Pennsylvania enacted retail theft laws this year. California, Florida, Illinois, Louisiana and North Carolina did so last year.

Pennsylvania Gov. Josh Shapiro signed legislation this month that reduces by half the value of stolen merchandise prosecutors must prove to support a felony retail theft conviction and creates a new first-degree felony. Senate Bill 596 also establishes a division of the attorney general’s office with prosecutors across the state to investigate and pursue retail theft rings. 

Over the past several years, retailers, prosecutors and police have pushed state and federal lawmakers to crack down on thieves who, they say, have become increasingly sophisticated and violent. Some large retailers have shuttered stores with the largest losses. And shoppers at many stores have had to get used to asking clerks to open locked displays of merchandise vulnerable to theft. Some retailers have directed employees not to pursue shoplifters, out of fear for their safety.

Despite emerging questions over the extent of the losses, law enforcement officers and prosecutors insist the threat is greater than ever, citing a recent series of busts against sometimes violent shoplifting rings amid the Christmas shopping season.

“To me, it’s getting worse,” said James Kneipp, a Houston Police Department detective. Police in the nation’s fourth-largest city recently arrested 13 suspects for allegedly participating in an organized theft ring, he said. “They’re getting bigger. They’re getting … braver,” Kneipp told Stateline. The investigation is ongoing.

Philadelphia police reported they investigated more than 14,000 incidents of retail theft in 2022, an increase of more than 52%. Meanwhile, District Attorney Larry Krasner has come under fire for progressive criminal justice policies that include grading retail theft of less than $500 worth of goods as summary offenses. Prosecutors must also get approval from a supervisor to file misdemeanor or felony retail theft charges.

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The prime sponsor of Pennsylvania’s organized retail theft law, Sen. David Argall (R-Schuylkill) cited looting in Philadelphia as justification for cracking down on retail theft. Several stores were burglarized during protests after a judge dismissed all charges against a police officer charged with murder in the shooting of Eddie Irizarry, an unarmed motorist.

“As we saw in Philadelphia … when mobs of people ransacked dozens of stores, our retailers are under siege,” Argall said in October after his bill was approved by the Senate Judiciary Committee. “The increase in retail theft we’ve seen in recent years is a slap in the face of every hardworking Pennsylvanian trying to provide for themselves and their families.”

In a memo seeking co-sponsors for his bill, Argall cited a report by the Retail Industry Leaders Association and Buy Safe America Coalition asserting that retail theft causes the loss of billions in economic activity, wages and state tax revenue.

Longer prison terms offer a poor return on public safety investments...

– ACLU of Pennsylvania

The American Civil Liberties Union of Pennsylvania opposed the bill, saying that it relies on failed “tough on crime policies” in response to exaggerated claims by the retail industry of an organized shoplifting crisis. By lowering the felony threshold, Argall’s bill would have a disparate impact on marginalized communities including people of color, juveniles and people experiencing poverty, unemployment or addiction.

“If enacted, SB 596 would exacerbate these existing racial and economic disparities, putting more people behind bars for longer,” the organization said in a position statement. “Longer prison terms offer a poor return on public safety investments, and by siphoning off taxpayer dollars to create more bureaucracy to prosecute these cases, SB 596 would only compound the loss to public safety from such an investment.”

Argall’s legislation reduced the threshold for third degree felony retail theft charges to $2,500, second degree charges to $10,000, and $50,000 for first degree charges. It also establishes an Office of the Deputy Attorney General for Organized Retail Crime Theft that will have five special prosecutors assigned five geographic districts. It passed with strong bipartisan support in both chambers of the General Assembly. 

Politicians love to cite crime data. It’s often wrong.

In a memo seeking co-sponsors for his bill, Argall also cited a report by the National Retail Industry Leaders Association and the Buy Safe Coalition asserting that retail theft causes the loss of billions in economic activity, wages and state tax revenue.

Republican state Sen. Aaron Freeman authored the law in Indiana, which makes the organized retail theft of firearms or at least $50,000 in merchandise a Level 5 felony, which carries a penalty of up to six years in prison and up to a $10,000 fine. After the recent arrests of two suspects accused of stealing tools valued at thousands of dollars, Freeman publicly warned anyone thinking of following suit.

“This isn’t misdemeanor land anymore,” he told Indianapolis Fox 59. “You’re going to play in felony world.”

A look at the numbers

The National Retail Federation, which describes itself as the world’s largest trade association, has been at the forefront of the lobbying campaign for tougher laws. In October, representatives from more than 30 retailers traveled to Washington, D.C., on a trip organized by the group to lobby for a major anti-theft bill in Congress.

If someone brought me data from that organization in the future, I'd want to double- and triple-check it

– Texas state Rep. Chris Turner on the National Retail Federation's retracted report

But the organization’s campaign took a hit after it was forced to walk back its claim that nearly half of so-called inventory shrink in 2021 was attributable to organized retail crime. Shrink is an industry term to describe all inventory losses from multiple causes, including theft. The true number was closer to 5%, or $4.7 billion. The trade publication Retail Dive first reported the error.

“Obviously, their account that they put out erroneous data hurts their credibility,” said Texas Democratic state Rep. Chris Turner, who authored the Lone Star State’s new law creating a 10-member task force headed by the state comptroller to examine the threat posed by organized retail theft.

“From my vantage point, if someone brought me data from that organization in the future, I’d want to double- and triple-check it.”

Mary McGinty, vice president of communications and public affairs for the National Retail Federation, said in statements to news outlets, including Stateline, that the organization was adjusting its figures after discovering the error, which she said was made by an analyst for K2 Integrity, an advisory group that assisted with the report.

According to the federation’s revised 2023 national retail security survey, McGinty said, overall shrink accounted for $112.1 billion in losses in 2022, up from $93.9 billion in 2021. Internal and external theft of all kinds, “on par with previous years,” accounted for about two-thirds — or $73 billion — of retailers’ shrinkage, which she said can vary significantly from sector to sector.

Despite having to retract its initial estimate, retail federation officials said the industry hasn’t changed its position that organized retail theft is more than “just shoplifting.”

“We stand behind the widely understood fact that organized retail crime is a serious problem impacting retailers of all sizes and communities across our nation,” said McGinty.

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Other experts, however, say the extent of retail theft is yet to be determined. “At this point, we just don’t have a strong grasp on the extent and changing nature of the shoplifting problem,” said Ernesto Lopez, research specialist for the Council on Criminal Justice, which advocates for safety and equality in the U.S. criminal justice system.

“One reason for this is that we don’t know how many retailers are reporting theft incidents to police, and how often they are reporting them. We also don’t know how anti-theft measures taken by retailers may be affecting theft levels. Without all of that information, any portrait of shoplifting will be incomplete.”

Although videos of “smash-and-grab” rings storming department stores have ratcheted up concern about theft, a recent report by Lopez’s organization found that such incidents “are rare and account for a very small percentage of overall shoplifting,” said the analyst. More than 95% percent of shoplifting incidents are carried out by “one to two people,” he said.

Public officials respond

But many law enforcement officials, now armed with tougher state laws, continue to assert that retail theft rings are often large and well-organized, made up of “boosters” (shoplifters) and fences who peddle the stolen merchandise online or to other stores.

Fences also provide hotels and rent cars for boosters, who often hit several cities a day to procure stolen goods, according to investigators. Boosters often are given an online shopping list to illegally procure items such as power tools, over-the-counter medical items, cosmetics and toiletries.

In Florida, Republican Attorney General Ashley Moody and Palm Beach Sheriff Ric Bradshaw, a Democrat, recently announced the results of monthslong investigations that resulted in charges against 14 defendants in what Moody called a “massive” organized theft ring that caused at least $20 million in losses to more than 20 different retailers, including Walmart, Target, Home Depot and Lowes.

Prosecutors and authorities also describe a menacing picture in Alabama, which this year enacted a law that allows law enforcement and prosecutors to cross jurisdictional lines to pursue bands of thieves who hit retailers in multiple cities.

“The main thing is it allows us to go and get the higher-ups … the real people who are profiting off this crime,” said Barry Matson, executive director of the Alabama District Attorneys Association, which pushed for the law. “We’ve had major national retailers close their doors in Alabama because theft was so high.”

Matson disparaged what he called “pro-criminal” advocates, including critics in the media and liberal-leaning social policy groups, who are pushing back against law enforcement’s portrayal of a national retail theft problem. “I think there’s these groups that are more sympathetic to criminal defendants than they are [to] victims,” he told Stateline.

“We know it in the numbers. We see the images of the thieves, people going in and cleaning out stores. And it’s been at the expense of victims of crime, and I’m sick of it.”

But in Virginia, Haywood remains skeptical. He says he will fight to repeal his state’s law next year, though he acknowledges that it’s a long shot.

“The notion that, like, the mafia is going to get rich selling air freshener and deodorant … that just seems pretty ridiculous to me,” he said.

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Peter Hall
Peter Hall

Peter Hall has been a journalist in Pennsylvania and New Jersey for more than 20 years, most recently covering criminal justice and legal affairs for The Morning Call in Allentown. His career at local newspapers and legal business publications has taken him from school board meetings to the Pennsylvania Supreme Court and many points of interest between. He earned a degree in journalism from Susquehanna University.

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David Montgomery
David Montgomery

David Montgomery is a Stateline correspondent based in Austin, Texas, where he covers state government and politics.

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