Ambiguous Texas Shoplifting Laws May Be Applied Inconsistently By Police

by Anna Martinez|

Black women affected most by inflated charges arising from poorly-defined law

Dallas, TX—For more than three years, ambiguous wording in the Texas Penal Code led to inconsistent treatment of black and white arrestees for low-value shoplifting, according to a new study by a professor at Southern Methodist University.

The new study estimates that for a typical Texas police department arresting the same number of blacks and whites for “property theft” of less than $1,500, nearly twice as many blacks than whites were arrested for the more serious offense of “organized retail theft,” said Michael Braun, an associate professor at the SMU Cox School of Business and primary author of the research. Among female arrestees, about 2.6 times as many blacks as whites were arrested for organized retail theft, as opposed to property theft. These multiples quantify the association between the race of the arrestee and the charge applied at the time of arrest.

The study, “Police Discretion and Racial Disparity in Organized Retail Theft Arrests: Evidence from Texas,” appears in the December 2018 issue of the Journal of Empirical Legal Studies and is currently available on the journal's website ( Braun is an applied statistician, whose core research focuses on inferring patterns of individual behavior from large complex data sets. His co-authors Jeremy Rosenthal and Kyle Therrian are criminal defense attorneys with the McKinney, Texas, firm of Rosenthal and Wadas, PLLC.

Organized retail theft involves aggregating large amounts of stolen merchandise, repackaging the goods, and reintroducing the goods back into the supply chain through a black market. The Texas Legislature intended for the law to be used against leaders of these organized networks, not petty shoplifters. However, the statutory definition allows local police to arrest petty shoplifters for organized retail theft, even when the less serious charge of property theft would be sufficient. During the 44-month period of the study, organized retail theft carried more serious penalties than property theft. As a result of the overlapping definitions, some arrestees have likely served additional jail time and paid higher bail, and also may have suffered job losses or financial hardship.

“The definition of organized retail theft that is actually on the books technically allows local police to arrest petty shoplifters for organized retail theft instead of property theft, even though that is explicitly not what the Legislature intended,” Braun said. “But not all police departments use the law in that way, and the law is unclear about which activities should be applied to each offense. We were wondering if there are patterns in the data that would indicate a disparate use of this statute for arrestees of different racial groups, and how prevalent this disparity is across police departments throughout the state.”

The researchers conducted a statistical analysis of arrests for both property theft and organized retail theft from 2012 to 2015. They estimated an association between the arrest charge and the race of the arrestee for 669 Texas police departments, and predict that a "typical" department would make about twice as many organized retail theft arrests of blacks than whites, and about 20 percent more of Hispanics than whites, given the same number of property theft arrests. Among female arrestees, this multiple is about 2.6 for blacks and 1.5 for Hispanics. However, both the frequency and racial disparity in organized retail theft arrests vary greatly across departments, in terms of both magnitude and statistical significance. For about 30 departments, the evidence suggests a significantly high probability of a tendency toward racial disparity in these arrests.

“Our analysis found that not only does use of the organized retail theft law vary across the state, it appears that it is applied proportionately more often to blacks than whites, with black women being the most significantly affected group,” said Braun.

Therrian, a co-author of the study, notes that “when low values of merchandise are at stake, there is really no way the police can determine if a shoplifter is stealing as part of an organized ring, or for other reasons like economic hardship, thrill-seeking or mental illness.”

Local police reports don’t support more serious arrest

The researchers reviewed more than 300 actual arrest reports for organized retail theft from local police departments. In each case they read the arresting officer’s narrative of what happened. Looking at a limited sample of the individual arrest reports, the researchers were not able to find any that indicated the arrests for organized retail theft involved anything beyond what would be necessary for a property theft arrest.

“It is highly unlikely at the time of arrest, for shoplifting low-value items, the arresting officer would have much evidence to support an organized retail theft charge,” Rosenthal said.

Police in different cities apply laws differently

The researchers noted that the use of the organized retail theft law varies from one jurisdiction to another.

“Whatever side of the city line that you happen to be on affects how this law is being interpreted and applied,” Braun said. “We estimate that, on average, the multiple is higher among police departments serving wealthier cities. For every 10 percent increase in per capita income in the jurisdiction, we estimate an associated 7.3 percent increase in the multiple of arrests for organized retail theft over property theft between black and white arrestees.”

Criminal statutes in other states are not as ambiguous

The authors reviewed the criminal statutes of other states. No other state was as ambiguous as Texas.

The authors also note that the issue can be addressed by defining organized retail theft more precisely. In Massachusetts, for example, the definition of organized retail theft requires a $2,500 minimum value, multiple people working together, and an intent to reenter the stolen merchandize back into commerce. In Delaware, quantities must exceed those that would normally be purchased for personal use. Those distinctions were not present in the Texas statute.

“The current law effectively lets each police department decide itself which activities justify an organized retail theft charge instead of a property theft charge,” Braun said. “Although our statistical analysis says nothing about departments’ motives or internal procedures, it does create a sort of statistical profile of how often departments make these decisions.”

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