If you believe major retailers, the United States is in the midst of a national shoplifting crime wave. Violent gangs rob big box stores, mom-and-pop stores, and pharmacies alike, and in the process, pilfer millions of dollars\u2019 worth of merchandise, resell it through online marketplaces, and use their illicit proceeds to fund international terrorist organizations and transnational gangs. The harms, retailers argue, are substantial\u2014because this is not just typical shoplifting. Yet these groups are getting away with it all\u2014because existing criminal statutes are too weak and soft-on-crime prosecutors will not bring cases.<\/p>\n
This narrative has been hugely influential. National and local media outlets breathlessly cover \u201csmash-and-grab\u201d robberies and credulously report retailers\u2019 own statistics about the extent of organized retail crime. And since 2003, federal lawmakers have unsuccessfully pushed for the creation of a federal \u201corganized retail crime\u201d offense, an unprecedented expansion of federal criminal jurisdiction that would empower U.S. Attorneys\u2019 offices to brings low-level thefts into federal court. But though these efforts have stalled nationally, in the last two decades, nearly forty states have adopted \u201corganized retail crime\u201d statutes, which create new offenses for repeated thefts done by organized gangs.<\/p>\n
Yet this narrative, while clearly powerful, is wrong. Retail groups have misrepresented the extent of organized retail crime in the United States\u2014and, under increased scrutiny, were forced to walk back their characterizations and correct their flawed data. And federal and state prosecutors both have ample tools at their disposal for charging organized retail crime. Virtually all conduct undertaken by shoplifting enterprises would easily trigger liability\u2014as well as substantial punishments\u2014under existing criminal statutes, and \u201corganized retail crime\u201d statutes would add comparatively little muscle to these laws for most defendants.<\/p>\n
So far, little scholarly attention has been focused on organized retail crime statutes. This deficiency is stunning at a time when a majority of states now have versions of these statutes in place and Congress is actively considering legislation that would dramatically expand the scope of federal jurisdiction. Accordingly, this Article makes two distinct contributions to existing criminal scholarship. First, I assemble a comprehensive survey of the history, content, and impact of organized retail crime statutes. Second, based on that survey, I argue that retail groups are pulling a bait-and-switch. Organized retail crime statutes will likely be ineffective against their ostensible targets, the groups involved in multi-million-dollar crime rings, yet highly effective against their likely intended targets\u2014low-level shoplifters and reform-minded prosecutors.<\/p>\n