Should Prosecutors Take a Pass on Stealing?

For practical purposes, that is the question raised by this piece in the Washington Post authored by three professors at the Georgetown University Law Center’s Criminal Defense & Prisoner Advocacy Clinic.  You will not be surprised to hear that their answer is “yes.”  Specifically, they opine that, “The U.S. attorney’s office should stop criminally prosecuting nonviolent misdemeanors,” which means, in practice, that it should stop prosecuting almost all the massive amount of stealing that gets done in Washington, DC’s stores.

I respectfully dissent.

The gist of their short opinion piece, which is worth reading, is that the “real problem” behind stealing is poverty or drug abuse or momentary impulse, and that addressing these things through prosecution is the wrong approach.  The “right”approach is  —  isn’t it always?  —  for the government to provide more social services.

Their discussion blinks reality in a way typical of the defense bar, where everyone is sick and no one is bad.  In my 25 years at DOJ and the USAO, not one single time did I deal with or even hear of a defendant who stole for subsistence. They steal for the usual reasons, i.e., greed and the view that rules are for other people.  Nor in any event do I view the ubiquitous wail of “poverty” as the conversation-stopper excuse for taking stuff that doesn’t belong to you — something every child knows is wrong by the age of six at the latest.

So stealing is wrong per se, and criminal, and harmful to the rightful owner, and for those reasons alone should be prosecuted (I might note that, in the relatively infrequent instances where a prosecution occurs, a jail sentence is only very rarely imposed).  But if one were to recur to consequentialist arguments, they point to the same result, as shown in the article linked below. Merchants will react to stealing, often by picking up stakes and leaving, with the outcropping that lower income neighborhoods will be left without needed stores. People who work at those stores will get hurt, as will poor but honest customers. They count too, not just thieves.

The problem is not our reaction to stealing. The problem is stealing.

This piece from the Washington Examiner tells the story (and contains a revealing one-minute film clip of the brazenness of the thieving).  It’s titled, “Walgreens shutters 10 stores in San Francisco as residents point to rampant shoplifting.”  It begins:

Pharmacy giant Walgreens has closed its 10th store in the San Francisco area, prompting residents to blame rampant shoplifting caused by the city’s soft-on-crime policies.

The store is set to permanently shut its doors on March 17, and the move has drawn an online petition against the closure, which accrued over 200 signatures at the time of publishing. The closure is the third since mid-October 2020, and those living in the area reported brazen thefts at Walgreens pharmacies throughout their hometowns.

“All of us knew it was coming. Whenever we go in there, they always have problems with shoplifters, ” a regular customer, Sebastian Luke, told the San Francisco Chronicle.

One October incident was caught on video as Inside Edition reporters were following a story on the rampant larcenies. A thief, donning black clothing, was seen on video scaling a counter, grabbing an air vent, and leaving the store on a scooter as shelves in the store were left bare from similar sprees.

“I feel sorry for the clerks, they are regularly being verbally assaulted,” Luke said. “The clerks say there is nothing they can do. They say Walgreens’ policy is to not get involved. They don’t want anyone getting injured or getting sued, so the guys just keep coming in and taking whatever they want.”

At the time, Walgreens declined to provide a reason for the store closures but indicated “the safety of our team members and customers is our top concern.”