Shoplifting. So I was a municipal prosecutor for 10 years, a county one for 17, and a public defender for 4. In rural areas, the linked comment is spot on, organized shoplifting was rare.
The most organized shoplifting I ever encountered was when a couple of guys would work together to get a TV out of Walmart by taking it over to the gard…
Shoplifting. So I was a municipal prosecutor for 10 years, a county one for 17, and a public defender for 4. In rural areas, the linked comment is spot on, organized shoplifting was rare.
The most organized shoplifting I ever encountered was when a couple of guys would work together to get a TV out of Walmart by taking it over to the garden section and tossing it over the fence. Theft of higher value items like this was for the purpose of trying to find a different Wal-Mart later that day and return the item for cash (Walmarts will let you do this without a receipt about once per year, you have to show an ID but presumably they were using fake ones.)
Minor shoplifting was usually women stealing cosmetics or clothes. Men stole things that often seemed random and pointless, like a DVD or some part for a car when they didn't own a car. The best alltime combo I saw was a local paint huffer who stole a can of gold fleck spray paint, an in-dash car stereo, and a copy of "Bat out of Hell" by Meatloaf. He was gonna have a fun night, almost feel bad for the guy.
In municipal court what would happen is they get a ticket, some cop has to write up a VERY brief probable cause affidavit but I would guess it still took an hour for the paperwork, I spend 5 minutes reviewing it and sign off on it. If the defendant doesn't show, they get a bench warrant, with a bond equal to the fine, say $200 first offense (plus cost of lost goods if not recovered). They get stopped for a ticket someday, and end up paying the bench warrant bond off to avoid jail, or they don't have that money in which case they sit in jail about a day before the municipal judge releases them because county jails don't have space to hold shoplifters for days and it costs like $40/day per inmate for the city to have them housed there. I would say only 1/100 cases would the defendant show up, demand a trial, and require me to get the loss prevention manager of Wal Mart to show up for night court.
If it was a repeat offender, it might get referred to county, where the typical disposition might be 90 days jail suspended (it would be imposed only if they broke probation), with 2 yrs of unsupervised probation. Because I was both the municipal prosecutor and county prosecutor, I could actually control this a little and would cherry pick the cases out of municipal that I thought needed to go higher. (And sometimes in the other direction to cut somebody a break.) But if that had not been the case, there wouldn't be any coordination there and no rhyme or reason as to why some cases had a $200 fine and some had 2 yr bench probation period and real chance of jail.
Over $750 it was a felony, which was a different matter. If a stealing victim was a private citizen these nearly always remained felonies. On a shoplifting, there was some chance it would get reduced to a misdemeanor. If property was unrecovered the person could make restitution in advance they had a better show of this.
The reason mandatory jail doesn't work (and this applies to more than shoplifting) is that if you tell people they're going to jail, you have to give them a public defender. They are also less likely to want to plead guilty, and more likely to want a trial, or at least drag it out towards trial. In a regime where there is prosecutorial discretion, as I had, what will inevitably happen is that the state will face down an organized push from the local public defenders' office to set a bunch of shoplifting cases for jury trial. They know the state won't want to have those trials, and probably doesn't have the courtroom dates available to do so. And if you go ahead and call the bluff and try them, the odds are that the sentence the defendant gets won't be bad enough to deter this maneuver -- judges aren't supposed to increase sentences just because a guy chose to have a trial, so it's still unlikely he'd get more than whatever the mandatory minimum was set at. So the prosecutors will do the only remaining thing they can, which is amend the charge down to something that doesn't carry the mandatory minimum, thus allowing them to unclog the system.
Apparently, in Seattle, the jail was understaffed such that there were only 90 spots. As of a few days ago, they've increased that to 135. But it was over 200 before covid hit.
> And if you go ahead and call the bluff and try them, the odds are that the sentence the defendant gets won't be bad enough to deter this maneuver -- judges aren't supposed to increase sentences just because a guy chose to have a trial, so it's still unlikely he'd get more than whatever the mandatory minimum was set at.
This is radically at odds with any other reporting I've ever seen on the empirical behavior of judges.
> The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial.
> At the federal level, trial sentences are roughly three times higher than plea sentences for the same crime on average and sometimes as much as eight or ten times higher. This sentencing differential is extremely coercive. As a result only 2-3% of federal convictions are the result of trial.
Federal is totally different because of something I believe is called factor (k), that moves you down in the sentencing guidelines if you “take responsibility for your crime” or something like that. I don’t practice federal law, but Im aware of that from some reading I’ve done and from talking to federal public defenders.
In state law, the rule is clear that imposing a “trial penalty” will result in reversal.
Plea bargaining has a soft cap built in, set at what the judge would do if this defendant just pled open (guilty with no deal, sentencing left up to judge within the range of punishment.) Some rural judges when I started out in the 00s had cultivated a reputation of giving very large sentences in event of open plea or trial, so that A) parties were encouraged to reach a deal, and B) it would not appear to be a "trial penalty" when they gave a big sentence after trial. There is extraordinarily limited number of trial dates available for a rural circuit judge who has X number of days tied up in routine dockets across multiple counties every month and often limited courtroom availability, so this was practical.
But that generation of judges retired. Now as of the 2020's, judges even in conservative areas were now shying away from large sentences. Conservative lawmakers complain of the cost of incarceration, parole guidelines have been adjusted to release people faster, and more people end up on probation. A few times in my career we faced serious public pressure to incarcerate people committing a string of rural burglaries, which we had to crack down on because if you don't then people out there will start shooting anybody lingering too close to their barn. But by then judges were routinely giving probation to nearly all first offenders for non-violent felonies, so it was impossible for the prosecutor's office to offer a plea bargain of prison time when the defendant knew he could get probation from the judge.
In California, where the original discussion began here, I imagine judges are even more lenient than ours. To actually stiffen up penalties requires not just law changes and not just replacing progressive DAs with law-and-order ones, you have to replace most of the judges with ones who routinely give stiff penalties, and (to handle the increased volume of people demanding trial) also spend heavily on new courtroom capacity, more judges, more prosecutors, and more public defenders (because otherwise guys will sit in limbo for months until the public defender's office says they have the capacity to ethically take more cases.)
Shoplifting. So I was a municipal prosecutor for 10 years, a county one for 17, and a public defender for 4. In rural areas, the linked comment is spot on, organized shoplifting was rare.
The most organized shoplifting I ever encountered was when a couple of guys would work together to get a TV out of Walmart by taking it over to the garden section and tossing it over the fence. Theft of higher value items like this was for the purpose of trying to find a different Wal-Mart later that day and return the item for cash (Walmarts will let you do this without a receipt about once per year, you have to show an ID but presumably they were using fake ones.)
Minor shoplifting was usually women stealing cosmetics or clothes. Men stole things that often seemed random and pointless, like a DVD or some part for a car when they didn't own a car. The best alltime combo I saw was a local paint huffer who stole a can of gold fleck spray paint, an in-dash car stereo, and a copy of "Bat out of Hell" by Meatloaf. He was gonna have a fun night, almost feel bad for the guy.
In municipal court what would happen is they get a ticket, some cop has to write up a VERY brief probable cause affidavit but I would guess it still took an hour for the paperwork, I spend 5 minutes reviewing it and sign off on it. If the defendant doesn't show, they get a bench warrant, with a bond equal to the fine, say $200 first offense (plus cost of lost goods if not recovered). They get stopped for a ticket someday, and end up paying the bench warrant bond off to avoid jail, or they don't have that money in which case they sit in jail about a day before the municipal judge releases them because county jails don't have space to hold shoplifters for days and it costs like $40/day per inmate for the city to have them housed there. I would say only 1/100 cases would the defendant show up, demand a trial, and require me to get the loss prevention manager of Wal Mart to show up for night court.
If it was a repeat offender, it might get referred to county, where the typical disposition might be 90 days jail suspended (it would be imposed only if they broke probation), with 2 yrs of unsupervised probation. Because I was both the municipal prosecutor and county prosecutor, I could actually control this a little and would cherry pick the cases out of municipal that I thought needed to go higher. (And sometimes in the other direction to cut somebody a break.) But if that had not been the case, there wouldn't be any coordination there and no rhyme or reason as to why some cases had a $200 fine and some had 2 yr bench probation period and real chance of jail.
Over $750 it was a felony, which was a different matter. If a stealing victim was a private citizen these nearly always remained felonies. On a shoplifting, there was some chance it would get reduced to a misdemeanor. If property was unrecovered the person could make restitution in advance they had a better show of this.
The reason mandatory jail doesn't work (and this applies to more than shoplifting) is that if you tell people they're going to jail, you have to give them a public defender. They are also less likely to want to plead guilty, and more likely to want a trial, or at least drag it out towards trial. In a regime where there is prosecutorial discretion, as I had, what will inevitably happen is that the state will face down an organized push from the local public defenders' office to set a bunch of shoplifting cases for jury trial. They know the state won't want to have those trials, and probably doesn't have the courtroom dates available to do so. And if you go ahead and call the bluff and try them, the odds are that the sentence the defendant gets won't be bad enough to deter this maneuver -- judges aren't supposed to increase sentences just because a guy chose to have a trial, so it's still unlikely he'd get more than whatever the mandatory minimum was set at. So the prosecutors will do the only remaining thing they can, which is amend the charge down to something that doesn't carry the mandatory minimum, thus allowing them to unclog the system.
I put this up on the hidden thread, but it might be good to stick here, too:
On the topic of why police don't arrest people for misdemeanors any more, I ran across an interesting tidbit:
https://www.thestranger.com/news/2024/11/08/79773484/seattle-police-department-shares-plan-to-fill-up-king-county-jail-beds
Apparently, in Seattle, the jail was understaffed such that there were only 90 spots. As of a few days ago, they've increased that to 135. But it was over 200 before covid hit.
> And if you go ahead and call the bluff and try them, the odds are that the sentence the defendant gets won't be bad enough to deter this maneuver -- judges aren't supposed to increase sentences just because a guy chose to have a trial, so it's still unlikely he'd get more than whatever the mandatory minimum was set at.
This is radically at odds with any other reporting I've ever seen on the empirical behavior of judges.
Example: https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct
> The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial.
> At the federal level, trial sentences are roughly three times higher than plea sentences for the same crime on average and sometimes as much as eight or ten times higher. This sentencing differential is extremely coercive. As a result only 2-3% of federal convictions are the result of trial.
Federal is totally different because of something I believe is called factor (k), that moves you down in the sentencing guidelines if you “take responsibility for your crime” or something like that. I don’t practice federal law, but Im aware of that from some reading I’ve done and from talking to federal public defenders.
In state law, the rule is clear that imposing a “trial penalty” will result in reversal.
> judges aren't supposed to increase sentences just because a guy chose to have a trial
Okay, but what's stopping them from doing that anyways? Also, isn't this what plea deals are for?
Plea bargaining has a soft cap built in, set at what the judge would do if this defendant just pled open (guilty with no deal, sentencing left up to judge within the range of punishment.) Some rural judges when I started out in the 00s had cultivated a reputation of giving very large sentences in event of open plea or trial, so that A) parties were encouraged to reach a deal, and B) it would not appear to be a "trial penalty" when they gave a big sentence after trial. There is extraordinarily limited number of trial dates available for a rural circuit judge who has X number of days tied up in routine dockets across multiple counties every month and often limited courtroom availability, so this was practical.
But that generation of judges retired. Now as of the 2020's, judges even in conservative areas were now shying away from large sentences. Conservative lawmakers complain of the cost of incarceration, parole guidelines have been adjusted to release people faster, and more people end up on probation. A few times in my career we faced serious public pressure to incarcerate people committing a string of rural burglaries, which we had to crack down on because if you don't then people out there will start shooting anybody lingering too close to their barn. But by then judges were routinely giving probation to nearly all first offenders for non-violent felonies, so it was impossible for the prosecutor's office to offer a plea bargain of prison time when the defendant knew he could get probation from the judge.
In California, where the original discussion began here, I imagine judges are even more lenient than ours. To actually stiffen up penalties requires not just law changes and not just replacing progressive DAs with law-and-order ones, you have to replace most of the judges with ones who routinely give stiff penalties, and (to handle the increased volume of people demanding trial) also spend heavily on new courtroom capacity, more judges, more prosecutors, and more public defenders (because otherwise guys will sit in limbo for months until the public defender's office says they have the capacity to ethically take more cases.)
Many Thanks! As Christina said, this was very helpful and detailed.
Huh! I replied to you, but my comment has disappeared!
Just wanted to say, this is a great comment that offers some really helpful detailed information.
Yes. The media seems to distort the story.