Shoplifting and petty theft are criminal offenses that are often thought of as interchangeable. In fact, the two share common elements: Each crime requires the perpetrator to take something of a certain value or less, with the intent to permanently keep it. Shoplifting, however, is fine-tuned to apply to the theft of store merchandise; and it can apply to acts that fall short of removing the item from the store. This article explains the crimes in detail, as well as common possible punishments.
Petty theft (from the French “petit,” or small) is the taking of something whose value is at or below a specified dollar amount, such as $500 or $750. If the item’s value is more than the threshold amount, the offense becomes “grand” larceny (again, from the French for “large”). In order to convict a defendant of petty theft, the prosecutor must convince a jury or judge, beyond a reasonable doubt, of the following:
- The victim of the crime had a “possessory interest” in the item taken. This means that the victim had a right to possess the item, even if the victim didn’t own it. Often, the victim is both the owner and the one with possession. But not always – suppose the bike you’re using belongs to your cousin, who loaned it to you for the summer. Its theft would be from you, because you have a possessory interest in the bike.
- The property was “taken away,” if only slightly. Petit theft traditionally required the movement, however slight, of the item away from its original place or position. Modern statutes often dispense with the requirement that the defendant move the item, insisting only that the defendant exercised control over it.
- The victim did not agree to the taking. In most cases, this element is obvious. Taking something through deception or deceit also satisfies this element, as when a person tells an owner that he will return an item, intending from the outset to keep it. (Note that this is different from promising and intending at the time to return the item, then failing to do so—as long as the borrower intended when he obtained it to return it, his subsequent failure to do so does not make his act criminal. Instead, he will be civilly liable for failing to return the property.)
- The defendant intended to permanently deprive the victim of his interest in the property. Here, the prosecutor must show that at the time the thing was taken, the defendant didn’t intend to return it. It’s not necessary to show that the victim in fact never got it back – it’s the defendant’s state of mind at the time he acted that’s important. And, merely taking something under circumstances that make it highly unlikely that it will be returned qualifies as a taking. For example, taking a bike and stashing it in the woods, where it would not likely be found, is tantamount to intending to permanently deprive the victim of the bike.
Shoplifting is a form of petty theft, and covers the taking of merchandise that is worth less than a specified amount. Each of the petty theft elements explained just above apply in a shoplifting context, with particular wrinkles. For example:
- The shoplifter need not exit the store without paying in order to commit shoplifting. Even the slightest movement that is consistent with an intention to steal is sufficient. For instance, placing the item under one’s clothing, or hiding it inside another item, are enough of a “taking” to constitute theft. Of course, the shopper must have intended to steal when doing these things; absentmindedly placing one item over another does not equal intent to steal.
- A shoplifter’s willingness to pay for an item after being apprehended will not defeat a charge of shoplifting. As long as the defendant intended to keep the item without paying when taking it, a subsequent change of heart won’t matter.
- A person can commit shoplifting by altering or removing price tags. These acts illustrate an intent to take money from the merchant, by attempting to pay less for the item than the tag originally specified.
Establishing the Value of the Item Stolen
For both petty theft and shoplifting, the crime will be elevated to grand theft if the item or merchandise is worth more than the amount specified in the statute. For things taken from stores, establishing value is not difficult, but that may not be the case when it comes to personal property that is not for sale. For example, what is the value of your two-year old leather jacket, or your father’s briefcase that is quite worn but has high sentimental value to you? In general, value is determined by what the item would fetch on the open market. So, the leather jacket might be valued by comparing it to similar jackets in second-hand stores. The same goes for that well-loved briefcase – its dollar value will not include the sentimental value you have placed on it.
Penalties for Petty Theft and Shoplifting
Petty theft and the related crime of shoplifting are misdemeanors. This means that convicted defendants face the possibility of time in jail (not state prison) of up to one year or less, in most states; and a fine of up to one or two thousand dollars. Depending on the circumstances, first-time offenders may have the option of “diversion,” a court-supervised program in which the defendant performs community service, perhaps undergoes counseling, and remains arrest-free for a period of time. Defendants who successfully complete the program are entitled to have the charges dismissed.
Penalties for petty theft can become much more serious when the defendant has a prior conviction for the same offense. In these situations, repeat offenders can be charged with a felony, known as “petty with a prior.” Felonies carry the possibility of time in state prison, and of course the stigma of having a felony conviction on one’s record. See our article, Serious Petty Theft: “Petty With a Prior” & Burglary, for more information.
Questions to Ask Your Attorney
How can I prove that I always intended to return the subject of this criminal charge?
What are the chances that the prosecutor will charge me with a “petty with a prior?” Can I plead to a lesser offense?
In this courthouse or with this judge, what’s the usual treatment for first-time offenders who plead guilty?
If I go to trial and lose, am I likely to be punished more severely than if I plead guilty now?