Woke Retailers — This You?

Corporations That Embraced Criminal Justice Reform Rhetoric Have Been Fueling Mass Incarceration

in 11 out of 18 states the retail industry succeeded in undermining criminal justice reforms

by rolling back shoplifting sentencing reforms or advocating harsher anti-shoplifting laws.

California and Illinois are the states where the retail industry

currently is trying to defeat criminal justice reform legislation.

17 retail corporations

behind advocacy for strict shoplifting penalties have themselves paid penalties for theft – wage theft. They paid millions in penalties and back wages, but no individual executives or managers were imprisoned for the civil violations.

$200 is the lowest felony threshold

that the retail industry supported in recent years (in Virginia).

$2,500 is Texas' felony shoplifting threshold,

the highest in the U.S.

$0 is the effective felony shoplifting threshold

in Arizona and Michigan if the alleged shoplifter stole the goods with the intention of reselling them, which falls under the states' definitions of "organized retail crime."

Introduction

In the wake of protests following the killing of George Floyd by Minneapolis police, major retail corporations released statements expressing concern for the effects of police violence and systemic racism on Black communities.

The statements say the businesses will “move forward – together – in the fight for greater racial equity” (Walmart), “[use] our size, scale and resources to help heal and create lasting change” (Target), “invest in changing the status quo” (Albertsons Safeway) and “stand with all who are committed to change that will bring us closer to realizing an end to discrimination and hatred” (Home Depot).

The CEO of Best Buy writes in a statement:

“What do we do to change the cycle in which black men or women, with tragic frequency, are harmed by those who are supposed to protect them? Or the gut-wrenching truth that to be a person of color in America is often to not feel fully safe, seen or heard? For me, it starts with seeing the situation for what it is, acknowledging these experiences for what they are and, quite simply, apologizing for not doing enough. […] If everything were on the table, what could Best Buy do?”

One way for retail corporations looking to make a difference against systemic racism and police violence would be for them to stop fighting criminal justice reforms.

Best Buy, Lowes, Home Depot, Target, CVS, Walmart and Albertsons Safeway are among the top backers of groups and campaigns that oppose criminal justice reforms – even against clear evidence that harsher sentences are not an effective way to prevent retail theft.

In recent years, the retail industry has advocated against criminal justice reforms that reduce shoplifting sentences and/or supported harsher anti-shoplifting laws in 18 states. Most of the time — in 11 states — the retail industry prevailed against reformers. The retail industry is currently opposing criminal justice reform in California and Illinois.

The industry exerts its influence against state criminal justice reforms – which seek to alleviate the mass incarceration crisis caused by over-policing communities of color – primarily through state retail industry groups, which are funded by national retail corporations. Among the national retail corporations that have funded the most retail groups opposing state criminal justice reforms are:

  • Best Buy, which disclosures show has funded 10 state groups;
  • Lowes, which has funded 9;
  • Home Depot, which has funded 6;
  • Target, which has funded 6;
  • Walmart, which has funded 4; and
  • CVS, which has funded 3.

The retail industry’s top criminal justice policy priority in the states has been keeping the dollar amount over which theft from a retailer can be charged as a felony as low as possible — sometimes as low as $200 (Virginia) and $300 (Florida and Illinois).

Shoplifting is associated with poverty. It is also associated with mental health problems, particularly opioid addiction. It is also not uncommon – a peer-reviewed psychiatric study estimates about 10% of the U.S. population has shoplifted. FBI data shows property crime rates have plummeted since the 1990s – and we know longer sentences and bigger fines for accused shoplifters do not make a difference.

Instead of backing efforts to further criminalize poverty, retailers should support smart reforms that improve communities instead of fueling America’s mass incarceration crisis, which disproportionately harms people of color.

 

Background

Over the past decade, many state governments – under both Republican and Democratic political control – have taken initial steps toward correcting the mass incarceration crisis, a priority of racial justice advocates. Bipartisan coalitions have emerged to advocate the adoption of criminal justice reforms to end the so-called “tough on crime” policies that fill the nation’s prisons with nonviolent property and drug offenders. In a moment of historic partisan polarization, criminal justice reforms have been embraced by a broad spectrum of groups, from civil rights advocates like the Leadership Conference on Civil and Human Rights to corporate-backed libertarian organizations like the Koch brothers’ Americans for Prosperity.

Mass incarceration disproportionately harms Black Americans and people of color. Because of inequities in policing and enforcement, Black Americans, who make up only 12% of the adult population, constitute a third of the prison population. Hispanic Americans make up only 16% of the population, but account for nearly a quarter of the prison population. When Black Americans are charged with an offense, they are likelier to receive a harsher penalty compared with white Americans. Low-income people of color also disproportionately endure the harshest collateral consequences. With 2.2 million people in its prisons and jails, the United States locks up more of its own citizens than any other nation in the world.

There are a variety of criminal justice reform policies that states have implemented to begin to reverse the crisis of mass incarceration. Recent trends include raising the age accused youths can be tried as adults, decriminalizing marijuana, reducing reliance on private prisons, re-enfranchising former felons in states where they are denied the right to vote, and sentencing reforms. In their efforts to block or roll back reforms, retailers unsurprisingly have focused primarily on sentencing reforms that reduce penalties for shoplifting.

Gallup polls show that Black Americans are more likely than any other group to report unfair treatment while shopping. Stories of racial profiling and facing discrimination for “shopping while Black” are common. After George Zimmerman was found not guilty for killing Trayvon Martin in 2013, President Barack Obama remarked, “There are very few African American men in this country who haven’t had the experience of being followed when they were shopping in a department store. That includes me.”

“There are very few African American men in this country who haven’t had the experience of being followed when they were shopping in a department store. That includes me.”

-President Barack Obama

When prosecutors bring charges against an alleged shoplifter, the dollar value of the stolen goods is a significant factor in determining the seriousness of the crime and, ultimately, the severity of the sentence. Particularly consequential, in terms of sentencing alleged shoplifters, is the dollar amount separating misdemeanor thefts from felony thefts. The felony threshold varies from state to state, and can mean the difference between relatively short sentence, including no prison time, to years in prison. The traditional distinction between felonies and misdemeanors written into the US Criminal Code is that felony crimes are so severe they carry a minimum punishment of one year of imprisonment, whereas for misdemeanors, one year in prison is the maximum sentence.

Additional consequences of conviction beyond fines and incarceration can be severe. In 48 states, felons lose their right to vote, at least while serving time, and about half of states impose a lifetime ban on former felons receiving public assistance. Background checks mean jobs and housing also can be denied.

The current patchwork of state laws means shoplifting the same amount can carry widely different consequences depending on the state where the crime occurs. In Texas, shoplifting is not considered a felony unless the value of the goods that were stolen is $2,500 or more. In New Jersey – the state with the lowest felony threshold – the stolen goods’ value need only exceed $200 to be considered a felony.

Since 2000, at least 40 states have raised their felony theft thresholds. The Pew Charitable Trusts compared changes in crime rates of states that raised felony thresholds and those that did not between 2000 and 2012 and found that the changes had no effect on property crime or larceny rates. In 24 out of 30 states that raised their felony thresholds between 2000 and 2012, property crime and larceny rates fell, according to Pew’s analysis of FBI data. Furthermore, the Pew analysis found no correlation between felony threshold amounts and property crime and larceny rates.

Opponents in the retail sector say raising felony thresholds increases crime. The Alabama Retail Association panned a 2019 effort to raise the state’s felony threshold from $500 to $2,500, claiming it would “basically allow shoplifters to steal five times more before they face any punishment of consequence.” The Retail Association of Maine’s executive director described a 2013 bill to raise the state’s felony threshold from $1,000 to $5,000 as “a cost of living increase for the criminals.” The Virginia Retail Merchants Association pledged in 2013 to fight to keep the state’s lowest-in-the-country felony threshold of $200 from being increased, asserting the group was “proud of Virginia’s business-friendly threshold level.”

“VRMA is proud of Virginia’s business-friendly threshold level.”

-Virginia Retail Merchants Association statement in 2013 defending the state’s $200 felony theft threshold, which was set in 1980.

At the federal level, the primary national groups are the Retail Industry Leaders Association (RILA) and the National Retail Federation (NRF). The NRF releases an annual survey on “shrinkage” — the various ways that theft reduces retail stocks — and estimated its cost in 2019 to be $50.6 billion. The federation also releases a survey on organized retail crime. These annual surveys, which are sometimes widely reported and cited by opponents of raising felony theft thresholds, have been criticized as methodologically weak for being based on surveys of retailers (only 63 in 2019). The survey makes no definition of organized retail crime — a term which can encompass a wide range of crimes — and emphasizes that 97% of its respondents claim to have been victims of organized retail crime in the past year. From this claim of mass victimization, the survey moves on to show that over 70% of its respondents say they want a federal organized retail crime law (though 64% also say they are currently are satisfied with federal law enforcement).

Retail industry groups are 501(c)(6) trade organizations, which not required to disclose their funders, and generally do not voluntarily disclose. However, many retail corporations voluntarily disclose the contributions they make to trade groups. From these disclosures, which are compiled and made searchable by the Center for Political Accountability’s Track Your Company database, it is possible to identify many retail corporations that give to retail industry groups. Using this database and disclosures of sponsorships the groups made on their own websites, Public Citizen found the national retail corporations that have funded the most retail groups opposing state criminal justice reforms and/or supporting harsher state anti-shoplifting laws are:

  • Best Buy, which disclosures show has funded 10 state groups;
  • Lowes, which has funded 9;
  • Home Depot, which has funded 6;
  • Target, which has funded 6;
  • Walmart, which has funded 4.
  • CVS, which has funded 3;

For a state-by-state breakdown of retail groups and companies that fund them, see Table 1 below. (For more details, see the more detailed state-by-state descriptions of retail industry lobbying activity in the full, downloadable PDF version of this report.)

Table 1: State-by-state overview of retail industry group influence and funders / supporters.

StateWhat industry tried to doDid it succeed?Groups and retailers pushing industry effortsRetailers and other businesses that fund industry groups
AlabamaOpposed criminal justice reformsYesAlabama Retail FederationWalgreens Boots Alliance, Home Depot, Best Buy, Lowes
AlaskaSupported criminal justice reform rollbackYesNational Federation for Independent Business, Anchorage Chamber of Commerce, Liquor Stores NA(unknown)
ArizonaSupported tougher shoplifting/organized retail theft sentencesYesArizona Organized Retail Crime AllianceArizona Retailers Association, Target
ArizonaSupported tougher shoplifting/organized retail theft sentencesYesArizona Retailers AssociationHome Depot, Best Buy, Lowes
CaliforniaSupported criminal justice reform rollbackOngoingKeep California SafeAlbertsons Safeway, Costco, Kroger (Ralph’s)
FloridaSupported tougher shoplifting/organized retail theft sentencesPartiallyFlorida Retail FederationWalmart, Publix, Disney
IllinoisOpposed criminal justice reformsOngoingIllinois Merchant Retail Association7-Eleven, Best Buy, CVS Health, Home Depot, Kroger, Target, Walgreens, Walmart
IndianaOpposed criminal justice reformsPartiallyIndiana Retail Council(unknown)
IndianaSupported tougher shoplifting/organized retail theft sentencesNoIndiana Retail Organized Crime CoalitionWalmart, Lowes, JCPenney, Target
MaineOpposed criminal justice reformsYesRetail Association of MaineBest Buy, Lowes
MaineSupported tougher shoplifting/organized retail theft sentencesYesRetail Association of Maine, JC Penney, Rite Aid, Lowe's, Cabela's, Auto Zone, Maine Grocers and Food Producers Association(unknown)
MichiganSupported tougher shoplifting/organized retail theft sentencesYesMichigan Retailers AssociationDTE Energy Company, Best Buy, Lowes, Home Depot
MississippiSupported criminal justice reform rollbackNoNational Federation for Independent Business(unknown)
MontanaSupported criminal justice reform rollbackYesMontana Retail AssociationAlbertson's Food and Drug, Best Buy, CVS Caremark, Home Depot, Kohl's Department Stores, Lowes, Target, Walgreen Company, Walmart
New YorkSupported burglary charge for repeat offendersYesApple Store, Bloomingdale's, Burlington Coat Factory, Century 21, DSW, Gap, Lorde & Taylor, Macy's, Marshall's, Rite Aid, Sephora, Walgreensn/a
OklahomaSupported criminal justice reform rollbackYesOklahoma Retail Merchants AssociationBest Buy
OklahomaSupported tougher shoplifting/organized retail theft sentencesNoQuikTripn/a
PennsylvaniaSupported tougher shoplifting/organized retail theft sentencesYesPennsylvania Food Merchants Association, Wegmans(unknown)
South CarolinaSupported tougher shoplifting/organized retail theft sentencesYesSouth Carolina Retail AssociationCVS Health, Best Buy
TennesseeSupported burglary charge for repeat offendersYesWalmartn/a
TennesseeSupported burglary charge for repeat offendersYesRetail Litigation CenterTarget, Lowes
VirginiaOpposed criminal justice reformsNoVirginia Retail Merchants AssociationDominion Resources, Best Buy, Lowes, Target
VirginiaOpposed criminal justice reformsNoVirginia Retail Federation(unknown)
WashingtonSupported criminal justice reform rollbackNoWashington Retail AssociationHome Depot, Gap, Best Buy, Lowes

While raising felony thresholds does not increase crime, crime rates do fluctuate for a variety of reasons despite the national downward trend in property crime rates. Criminal justice reform opponents have exploited reported shoplifting upticks in the efforts to roll back reforms. In Alaska and Montana, retail groups succeeded in their efforts to roll back criminal justice reforms. In California, they could succeed again – a state ballot initiative, Proposition 20, seeks to roll back criminal justice reforms, including by increasing potential penalties for shoplifting. The initiative has qualified for the November 2020 ballot. Albertsons Safeway, a supermarket chain headquartered in Arizona, is among the initiative campaign’s top financial backers.

Another trend in state changes to criminal law is the widespread adoption of laws to curb what law enforcement calls “organized retail crime.” While the definition of what constitutes organized retail crime is not consistent from state to state, the laws states adopt generally are intended to thwart organized groups who work together to steal and then resell large volumes of goods. According to a web site devoted to advocacy supporting the passage of these laws, at least 34 states have passed organized retail crime laws. Contrary to their intended purpose of combatting organized crime, in many states these laws allow aggressive prosecutors to get around the felony thresholds and pursue felony charges against alleged shoplifters accused of taking goods that are far less valuable, but which are purportedly stolen with the intent to sell rather than for personal use.

The actual content of these laws can vary greatly. The American Legislative Exchange Council (ALEC), an organization known for pushing duplicate bills in front of numerous state legislatures on behalf of its corporate funders, lobbied for an organized retail theft law that created a new class of felony theft. Under ALEC’s model bill, an individual who in coordination with at least one other person steals at least $1,000 worth of goods over 180 days or is involved in the sale of these stolen goods can be found guilty of organized retail theft. Other bills, such as New York’s 2016 law, do not create new categories of crime and instead enhance law enforcement’s capacity to coordinate resources to address instances when crimes span multiple jurisdictions. Arizona’s broadly written 2015 law appears to take ALEC’s approach to the extreme — it places no dollar threshold on the value of the stolen goods and individuals can commit the crime alone if they resell the stolen goods themselves. The crime is a class 4 felony, which in Arizona means it carries a maximum penalty of three years.

Clearly, law enforcement has a duty to intervene when large-scale organized crime networks engage in rampant theft. In February 2020, federal and local officials in West Virginia worked with investigators with Kroger, CVS and Target, and were assisted by eBay, in bringing down what the U.S. Attorney’s Office for the Southern District of West Virginia described as an organized retail theft operation that allegedly stole nearly 4,000 items valued at nearly $400,000 over the course of two years. But there is a significant difference between the masterminds behind large-scale schemes such as this West Virginia operation and a man in Cottonwood, Arizona who faced felony shoplifting charges after pocketing less than $10 worth of goods from a Walmart.

The misapplication of organized retail crime laws that are written too broadly has the same result as excessively strict shoplifting laws: it contributes to racial enforcement disparities and mass incarceration. This is what a 2018 report in the Journal of Empirical Legal Studies, a peer-reviewed academic journal, found when its authors analyzed discrepancies in shoplifting charging decisions along racial, ethnic and class lines in Texas.

In Texas, “organized retail theft” became a distinct crime, separate from property theft, which includes shoplifting, in 2007. However, the definitions of the crimes in the state’s criminal code overlap. The code states:

A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of:

(1)  stolen retail merchandise; or

(2)  merchandise explicitly represented to the person as being stolen retail merchandise.

The ambiguity in possible charging decisions arises from the fact that anyone who steals from a retailer necessarily “possesses … stolen retail merchandise.”

The 2018 report analyzed charging decisions for both laws between January 1, 2012 and August 31, 2015 and found discrepancies in shoplifting charging decisions along racial, ethnic and class lines. The report looks at arrest records for 97,740 individuals whose crime could have been charged as either property theft or organized retail theft. The report found that Black people were twice as likely as white people to be charged with the more serious offense, and that Hispanic people were 20% more likely than whites to be charged with the more serious offense. Individuals accused of shoplifting from stores based in more affluent locations were more likely to be charged with the more serious offense.

Interestingly, both law enforcement and some retailers attribute retail theft to the opioid epidemic. Home Depot CEO Craig Menear in 2019 told investors on a call about a theft of goods worth $1.4 million from a warehouse and said “We think this ties to the opioid crisis, but we’re not positive about that.” Gap Inc.’s executive in charge of loss prevention also ties the opioid epidemic to theft, saying that it is “driving people who are educated and have access to wealth to make decisions or to do things that they typically wouldn’t do.” In Tennessee, a spokesperson for the Knox County sheriff’s office says addicts steal goods, then return them in exchange for gift cards, which they sell for drug money.[2] In Michigan, the Kent County Prosecutor said, “Retail fraud seems to be exploding and I think a lot of that has to do with opioid addiction and addiction in general.’’

One reason this connection between the opioid epidemic and retailers is so important is that several of the retailers supporting tougher shoplifting penalties are themselves implicated in the epidemic (see Table 2). Albertson’s Safeway, Costco, CVS, Rite Aid and Walgreens all have paid millions to settle allegations of opioid-related violations, primarily improper prescribing practices that allowed prescription opioids to be diverted for abuse and black-market sales. None of the settlements mention a single retail company executive, manager or employee being sentenced to prison or otherwise held individually accountable for the alleged violations. None of the companies were even required to admit they did anything wrong.

According to a shocking ProPublica report, Walmart would have faced a criminal indictment for opioid violations had Trump’s political appointees at the Department of Justice not overruled prosecutors.

SEC filings show that all six of these retailers and pharmacy chains are named in numerous claims among the 2,000 lawsuits consolidated in the multi-district opioid litigation before federal court in Ohio.

Table 2: Retail corporations opposing criminal justice reforms that have faced opioid-related enforcement actions.

Retail CorporationYearOpioid EnforcementSource
Albertsons Safeway2020An Albertsons-owned pharmacy in Casper, Wyoming, agreed with the DOJ to pay a $1 million settlement for alleged violations of the Controlled Substances Act. DOJ alleges the pharmacy illegally filled large volumes of Oxycodone prescriptions that served no medical purpose. DOJ press release
Albertsons Safeway2020According to its SEC filing, Albertsons also is named in at least 70 lawsuits accusing the corporation of unlawful opioid distribution, including the multi-district litigation consolidating more than 2,000 cases.SEC filing
Costco2020According to its SEC filing, Costco is named in at least 83 cases (in 43 states and America Samoa) in the multi-district opioid litigation consolidating more than 2,000 cases.SEC filing
Costco2017Costco agreed to pay $11.75 million for alleged violations of the Controlled Substances Act. The DOJ settlement, which notes compliance with the law is important for combatting the opioid epidemic, "resolves allegations that Costco pharmacies filled prescriptions that were incomplete, lacked valid Drug Enforcement Administration (DEA) numbers or were for substances beyond various doctors’ scope of practice. Additionally, the settlement resolves allegations that Costco failed to keep and maintain accurate records for controlled substances at its pharmacies and centralized fill locations." DOJ press release
CVS2020Omnicare (a CVS subsidiary) agreed to pay $15.3 million for allegedly allowing opioids to be improperly dispensed, according to the DEA.DEA press release
CVS2020According to its SEC filing, CVS is named in "hundreds of federal cases" in the multi-district opioid litigation consolidating more than 2,000 cases, plus "a significant number" of cases in state courts, and also cases filed by state attorneys general. The pharmacy chain is also under investigation regarding its opioid prescribing practices by state and federal authorities.SEC filing
CVS2019CVS agreed to pay $535,000 to settle allegations its Rhode Island stores for filling painkiller prescriptions that pharmacists had reason to believe were forged, according to the DEA.DEA press release
CVS2018CVS agreed to pay $1.5 million to settle allegations stores in New York counties failed to timely report the theft of opioids and other drugs, a violation of the Controlled Substances ActDOJ press release
CVS2018CVS agreed to pay $3.5 million to settle federal allegations of failing to prevent drugs, "mostly addictive painkillers," from being diverted from Massachusetts pharmacies.DOJ press release
CVS2016CVS agreed to pay $795,000 to settle allegations from the Massachusetts Attorney General that the company failed to provide pharmacists access to a required prescription monitoring program, which helps deter opioid overprescribing by providing patients' prescription histories. Mass. AG press release
CVS2016CVS agreed to pay $8 million to settle federal allegations of dispensing controlled substances, "including oxycodone, fentanyl and hydrocodone," with no legitimate medical purpose.DOJ press release
CVS2015CVS agreed to pay $450,000 to settle federal allegations of filling invalid prescriptions, including for opioid painkillers, and maintaining deficient records, in Rhode Island pharmaciesDOJ press release
Rite Aid2020According to its SEC filing, Rite Aid is named in the multi-district opioid litigation consolidating more than 2,000 cases, plus "a significant number" of cases in state courts and other cases. The pharmacy chain is also under investigation by state and federal authorities.SEC filing
Rite Aid2019Rite Aid agreed to pay $177,000 to Massachusetts' Naloxone Fund to settle allegations the pharmacy chain improperly dispensed opioids and other drugs.Mass. AG press release
Rite Aid2009Rite Aid and nine of its subsidiaries agreed to pay $5 million to settle allegations of Controlled Substances Act violations, including shortages and surpluses of opioids that indicate, according to the DOJ, a pattern of non-compliance with the law and regulations.DOJ press release
Walgreens2020According to its SEC filing, Walgreens is named in the multi-district opioid litigation consolidating more than 2,000 cases, plus "numerous" of cases in state courts, and also cases filed by state attorneys general. The pharmacy chain is also under federal investigation for Controlled Substances Act violations.SEC filing
Walgreens2017Walgreens agreed to pay $200,000 to Massachusetts' Naloxone Fund to settle allegations the pharmacy chain improperly dispensed opioids and other drugs.Mass. AG press release
Walgreens2013Walgreens agreed to pay $80 million to settle federal allegations the pharmacy chain "committed an unprecedented number of record-keeping and dispensing violations" of the Controlled Substances Act, including allegedly allowing opioids to be diverted for abuse and black-market sales.DEA press release
Walmart2020According to its SEC filing, Walmart is named in the multi-district opioid litigation consolidating more than 2,000 cases, plus "numerous" of cases in state courts, and also cases filed by state attorneys general. The pharmacy chain is also under investigation from "governmental entities related to nationwide controlled substance dispensing and distribution practices involving opioids." SEC filing
Walmart2018Federal prosecutors sought to bring charges against Walmart for improper opioid prescribing practices. When Walmart pharmacists sought guidance for when they received large numbers of improper prescriptions, Walmart's compliance manager reportedly said the retailer's emphasis should be on "driving sales." Trump political appointees reportedly overruled the career prosecutors who sought the indictment, and the DOJ declined to prosecute Walmart.ProPublica investigation

It is also noteworthy that law enforcement’s approach to theft is very different when the retailers themselves are the thieves. When retailers fail to pay workers fully for their time spent working, they commit wage theft. A 2017 Demos report details the stark differences between shoplifting enforcement and wage theft enforcement. The report notes that shoplifters can be charged with a felony and sent to prison for stealing more than $2,500 in any state, while wage thieves until recently were required only to repay the stolen wages plus an equal amount in liquidated damages (that is, a total of double the stolen wages). In June, Trump’s Labor Department made an announcement, using the coronavirus pandemic as a pretext, that its default position would be to only require employers to pay back the amount of wages that were stolen. According to the Demos analysis, 358,000 retail industry workers are cheated by minimum wage violations. Employers that fail to pay workers at least minimum wage reportedly steal an estimated $15 billion from their employees each year. While some local prosecutors, such as the Manhattan District Attorney, are reportedly prepared to bring more criminal indictments against businesses accused of wage theft, corporate defense attorneys representing businesses against such charges call them “outrageous” and “unfair.”

Employers that fail to pay workers at least minimum wage reportedly steal an estimated $15 billion from their employees each year.

-Demos report

A search of wage and hour violations on Good Jobs First’s Violation Tracker database shows at least 17 corporations that back groups that support tougher shoplifting penalties have settled wage theft violations (see Table 3). Collectively, these businesses settled at least 57 wage theft cases – all through civil enforcement, with no apparent individual accountability or prison time for the executives or managers responsible for cheating workers out of their pay. The biggest enforcement action by far was an enforcement action the Department of Labor settled with Walmart in 2007, which required the retailer to pay $33 million in back wages plus interest to 86,680 employees, who the retailer underpaid for overtime work.

Table 3: Corporations opposing criminal justice reforms that have faced enforcement actions for wage theft since 2003.

CorporationNumber of Wage Theft Enforcement ActionsTotal Penalties Paid for Violations
Walmart7$43,274,663
Aetna6$1,234,393
Costco3$458,467
Kroger4$185,788
7-Eleven12$160,938
Coca-Cola4$155,895
Target1$88,500
Staples1$76,699
Macy's4$64,524
CVS Health4$36,305
Lowe's1$30,375
Home Depot3$27,329
AutoZone2$24,804
Walgreens2$18,870
Best Buy1$7,500
Meijer1$7,245
Save-A-Lot1$5,521
Total57$45,857,816

In fact, it has become a general rule that corporations facing federal criminal charges receive extraordinary lenience from law enforcement, even – or rather, especially – from President Trump, notwithstanding the president’s “tough on crime” rhetoric. Instead of prosecution, corporations that are accused of crimes – including repeat offenders – typically strike deals with the government that allow them to avoid prosecution completely. These leniency agreements – which were originally developed to help first-time, nonviolent offenders avoid prison time – enable massive corporations to avoid accountability for their crimes even as they insist on the toughest possible consequences for shoplifters. Among the corporations supporting retail industry groups that advocate for tougher shoplifting penalties, Walmart, Rite Aid and CVS have resolved criminal investigations by entering a leniency agreement with the DOJ (see Table 4).

Table 4: Corporations opposing criminal justice reforms that have resolved federal criminal investigations with leniency agreements.

CorporationCrimeOutcomeYear
WalmartViolations of the Foreign Corrupt Practices Act in Mexico, India, Brazil, and China between 2000 and 2011, involving the company paying bribes public officials. (DOJ press release.)Non-prosecution agreement2019
Rite AidControlled substances violations – specifically unlawful sales of pseudoephedrine, which is used to make the illegal drug methamphetamine. (DOJ fact sheet)Non-prosecution agreement2018
CVS HealthControlled substances violations – specifically unlawful sales of pseudoephedrine, which is used to make the illegal drug methamphetamine. (CVS press release)Non-prosecution agreement2010

In recent years, the retail industry has opposed criminal justice reforms and/or supported harsher anti-shoplifting laws in at least 18 states. Most of the time — in ten states — the retail industry prevailed against reformers. The retail industry is currently opposing criminal justice reforms and/or calling for harsher anti-shoplifting laws in two states — California and Illinois.

California

California has long been a battleground for criminal enforcement policy. In 1994, the state’s infamous “three strikes” law made it so anyone convicted of a third felony would receive a mandatory minimum sentence of 25 years to life in prison. A 2004 study by the American Bar Association found that as a result of the law, which was unique among states with similar laws in that the third felony “strike” included nonviolent crimes such as theft, at least 360 Californians were serving life sentences for shoplifting. In 2012, voters approved a ballot initiative to exclude nonviolent offenders from the three strikes law.

More recently, voters in 2014 passed Proposition 47, a reform initiative that reduced some drug and theft-related felonies, including shoplifting, to misdemeanors. The law also raised the felony theft threshold to $950 from $400 retroactively reduced sentences for anyone previously convicted of these offenses.

This year, a ballot initiative, Proposition 20, dubbed by proponents as the Reducing Crime and Keeping California Safe Act, seeks to roll back many of Proposition 47’s reforms and increase penalties for shoplifting. The initiative has qualified for the November 2020 ballot.

Part of the backlash has been driven by an increase in some crimes in some California counties after Proposition 47 went into effect. According to the Los Angeles Times, some counties saw sharp shoplifting increases in 2015, and critics point to these increases as an unintended consequence of the reforms. In subsequent years, however, shoplifting across the state dropped to its lowest levels in ten years.

Major supporters of the 2020 initiative to roll back reforms include bail companies, police unions and grocery stores.

The New York Times reports that Albertsons Safeway blames reforms for an increase in shoplifting. Campaign finance records show that Albertsons Safeway, which is based in Arizona, contributed $100,000 toward the effort in 2018. Other major retailers that have made contributions toward the Proposition 20 campaign include Kroger ($91,000 through its Ralph’s subsidiary) and Washington-based Costco ($50,000). The California Business Roundtable contributed $15,000. Including contributions from several smaller local grocery stories, business interests collectively contributed more than $350,000 to support Proposition 20 as of early October.

According to the Los Angels Times, Costco has reportedly withdrawn its support for the ballot initiative.

Over the summer, Safeway and Ralph’s were criticized for supporting the initiative by California Safety and Justice, a group organizing against the ballot initiative.

In response, initiative proponents posted an ad on Twitter thanking the grocery chains for their support. 

Illinois

Policy conflicts between retailers and reformers are happening in Illinois at both the state and local level.

At the local level is the Cook County State’s Attorney, the top law enforcement official for the city of Chicago and its surrounding Cook County suburbs. Kimberly Foxx, who campaigned on criminal justice reform and police accountability, unseated the incumbent state’s attorney and was sworn in on Dec. 1, 2016.

One of Foxx’s first official actions that December was to raise the county’s felony theft threshold for repeat offender shoplifters from $300 to $1,000.

The retailers’ state trade group reacted with outrage. Rob Karr, president of the Illinois Merchant Retail Association, told DNA Info Chicago that the policy change left him “extraordinarily shocked and disappointed” and that it was “tantamount to declaring open season on retail stores.”

On its policy and positions page, the Illinois Merchant Retail Association makes clear its dedication to preserving the state’s anti-theft laws:

Illinois’ retail theft laws are recognized as among the best in the country. IRMA will oppose efforts to undermine existing retail theft laws and ensure that retail theft is treated as the serious crime that it is.

The trade group does not disclose the identities of its corporate members, but its web site thanks the corporate sponsors of its annual meeting, which include major retailers such as 7-Eleven, Best Buy, CVS Health, Home Depot, Kroger, Target, Walgreens and Walmart.

Illinois’ retail theft law is particularly strict. The crime is a Class 4 felony carrying a sentence of one to three years in prison when the stolen property is valued at $300 or more ($150 if the property is motor oil). The law additionally states that the crime automatically becomes a felony regardless of the value of the stolen goods if the offender is found guilty of retail theft a second time, making it a “two strikes” law.

Foxx isn’t the only Illinois elected official fighting for criminal justice reform. In fact, a commission of lawmakers, law enforcement officials, academics, and other experts convened by the state’s then-governor, Republican Bruce Rauner, recommended in its final report raising the threshold to $2,000 and eliminating the automatic felony upgrade for repeat offenders.

As a result of Foxx’s policy change, the number of felony shoplifting cases the Cook County State’s Attorney’s Office dropped from about 300 per month to about 70, according to data the office released. Felony shoplifting had been the second most frequent charge from the office in 2016. By mid-2019, it was eighth. At the same time, Foxx’s office increased enforcement against illegal gun usage.

After a reported increase in Cook County thefts in 2018, the Illinois Retail Merchants Association was quick to blame the increased felony threshold. “Thieves have declared open season on small business owners in the retail industry and it has taken a toll on their patience, their finances and continually threatens the safety of employees in the convenience and grocery sectors,” the group’s general counsel told a local CBS affiliate. The state’s attorney’s office responded that raising the threshold enabled prosecutors to focus on violent crime.

At the state level, the Illinois General Assembly is considering HB 1614, legislation that would act on the criminal justice reform commission’s recommendation by raising the statewide felony retail theft threshold to $2,000 and eliminating the automatic felony upgrade for repeat offenders.

The retail groups lobbying against the bill include the Illinois Retail Merchants Association, the Illinois Chamber of Commerce, the Illinois Petroleum Marketers Association, the Illinois Association of Convenience Stores, the Illinois Food Retailers Association and the National Federation of Independent Business. Several retailers also lobbied against the bill, including Save-a-Lot (a national discount grocery chain), Martin & Bayley, Inc. (the parent company of Huck’s Food and Fuel, a midwestern convenience store chain), FKG Oil Company (the parent company of Moto Mart, a midwestern convenience store chain) and Sullivans Foods (an Illinois grocery chain).

Despite the opposition, the bill advanced out of the Judiciary Committee and continues to gather co-sponsors. Illinois legislature is scheduled to reconvene on Nov. 17.

How the Retail Industry Tried to Derail Criminal Justice Reforms in Each State

In July, Matthew Shay, president of the National Retail Federation, joined the national conversation following George Floyd’s killing with a post on LinkedIn. Shay writes,

“Racism is a real problem in this country, and we all share the responsibility to address it. It requires leadership in the municipal, state and federal levels of government, in our schools, our places of worship, our businesses and our homes, so we can work together — honestly, transparently and inclusively — to find solutions.”

Among the welcome actions Shay says retailers are doing is “supporting organizations that drive change,” and lists among the groups retailers are supporting several that support meaningful criminal justice reforms: the Equal Justice Initiative, the NAACP and the Lawyers Committee for Civil Rights Under Law. It remains to be seen how the largest national retail lobby group will reconcile its industry’s anti-reform efforts with support for groups that fight mass incarceration. Hopefully, this is a sign the industry is already moving in the right direction – and that highlighting the industry’s harmful lobbying efforts will allow it to put these policy positions behind it, making the rapid changes the country requires for progress.

This analysis divides retail industry efforts against criminal justice reforms into three categories: states where the industry opposed criminal justice reforms, states where the industry supported harsher penalties for retail theft, and states where retailers and prosecutors work together to bring felony burglary charges against shoplifters. The full list of states and where they appear in the analysis is below. For the full analysis and descriptions of the industry’s state-by-state efforts, please download the full PDF version of this report.

  • States Where the Retail Industry Opposed Criminal Justice Reforms
    • Alabama
    • Alaska
    • California
    • Illinois
    • Indiana
    • Maine
    • Mississippi
    • Montana
    • Oklahoma
    • Virginia
  • States Where the Retail Industry Supported Harsher Penalties for Theft
    • Arizona
    • Florida
    • Michigan
    • Pennsylvania
    • South Carolina
    • Washington
  • States Where Prosecutors Use the “Walmart Burglary” Strategy to Increase Shoplifting Penalties
    • Tennessee
    • New York

In states where the industry both opposed reforms and supported harsher penalties, the state is included in the first category.

Conclusion

The coronavirus pandemic is raging on, and more and more leaders are attempting to show their concern for workers and families by saying, “We’re all in this together.” Truly, the crisis has made it impossible to ignore the numerous ways our shared society interconnects the fates of individual American lives. Just as a societal crisis like the pandemic requires a societal response, systemic racism and the mass incarceration crises likewise require societal responses far greater than individual actions or small-scale reforms. The next necessary shift is simple — and significant. Lawmakers and executives with the authority to make a difference must pledge to stop moving backward, to stop defending the unfair status quo, and to start moving forward.

Retail corporations that back groups and campaigns that fight criminal justice reforms should start prioritizing the people and communities they are supposed to serve. With regards to criminal justice, they should support systemic reforms that can more effectively reduce crime — reforms like strengthening community resources and infrastructure, improving education, and alternative first responders for nonviolent crimes — instead of simply helping police forces lock up more and more accused shoplifters. There is no question a shift like this will be difficult for Corporate America, with its reflexive tendency to prioritize short-term profits over long-term sustainability. The Business Roundtable — a top corporate lobbying group — may have pledged last year to support expanding the purpose of corporations from simply increasing shareholder profits to promoting “an economy that serves all Americans” — but that hasn’t translated to its signers, for example, supporting tax reforms to more equitably share the nation’s wealth.

To reckon with the ways businesses are unfairly taken from, they must face a reckoning with the ways in which they themselves unfairly take from communities. The ways Big Business limits the material wealth of workers and communities are numerous and well known. They pay poverty wages. They oppose paid sick time. They fight universal health care. They suppress unions. They perpetuate systemic racism and gender discrimination. And so on. There are, of course, exceptions. But the broad trends up to this point have been clear.

The first step toward shifting this trend may already have been taken. The National Retail Federation, one of the major retail industry groups, is urging retailers to support organizations that drive change – and prioritizing groups that support criminal justice reform. The more support reform groups receive, the more they can push public policy away from mass incarceration and toward reforms that can improve communities. And the more progress that can be made on this front, the more it becomes clear that if “We’re all in this together,” it doesn’t make much sense to lock up so many of us behind bars.

All that being said, there are limits to what can be achieved by urging corporations and the executives that manage them to do the right thing – especially when we know corporations already have a habit of using the rhetoric of allyship while lobbying against the interests of the very people whose allies they claim to be. Public pressure can certainly be an effective strategy for encouraging some companies to stop fueling the mass incarceration crisis. But a small number of companies doing the right thing is no substitute for systemic change.

The necessary systemic changes include requiring corporations to disclose their political spending – including spending on 501(c)(6) trade groups that lobby on their behalf. H.R. 1, the omnibus campaign finance reform legislation that has passed the U.S. House of Representatives, but which Sen. Mitch McConnell’s Senate refuses to consider, would empower the U.S. Securities and Exchange Commission to enact this reform.

In the meantime, advocates for criminal justice reform – and for the public interest more broadly – should continue to hold corporations accountable. If nothing else, retailers that depend on Americans as customers should refrain from spending money toward putting more Americans in prison.