Somerville, MA asked in Criminal Law for Massachusetts

Q: Shoplifting. Kmart. First offense. Less than $20. How to proceed? Terrified Independant Grad student

Was caught on camera shoplifting. Item was under $20. No police were called or arrest. They took down my ID and personal info and gave me a form to fill out to choose to pay a fee through a company called CAP (Crime accountability program). The fee is $450 and I have 72 hours to sign up and make a down payment or they ‘may turn it over to a prosecutor where I could be charged through traditional criminal justice process.’ Bu should I comply, he said they would ‘work with me’ on a payment plan.

I am a full time graduate student with a part time job and more debt than I will ever be able to pay back. I can’t afford to sacrice that much money. What steps should I take now to proceed? And what is the worst and best case scenario? Also, I should note that the address they took down on my ID was my dorm and I’ll be moving to an apartment soon. Should I call and give them the new address? PLEASE ADVISE. I’m very scared. It was a dumb mistake I won’t repeat. Thank you in advance.

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2 Lawyer Answers

Dakota Martin

Answered
  • Criminal Law Lawyer
  • Boston, MA
  • Licensed in Massachusetts

A: Never heard of this “shakedown”

Didn’t even know KMart was still in business.

Call a lawyer. Don’t communicate with CAP as they will likely use it to prosecute you after the fact. *i am not clear on this but I’ve seen abuse of the system through companies who claim to be lawyers demanding payment on “stolen” merchandise which was completely recovered , on cases that were dismissed.

You don’t need Johnny Cochran , but a criminal lawyer will suffice. Make sure they’ve done this type of case before.

Lissa McKinney

Answered
  • Criminal Law Lawyer
  • Acton, MA
  • Licensed in Massachusetts

A: No- don't pay it.It seems possible you may get by without a criminal prosecution. Some stores have a 'take no prisoners' approach to prosecuting theft but I doubt you will be charged at all.

If they charge, it is a misdemeanor shoplifting.IF they charged, you would get a notice to appear for a hearing before a clerk-magistrate and have the opportunity to shape the charge or have it resolved. These are often handled with a clerk's hearing though it varies based on store policies. I don't see a clerk hitting you with the $400. This CAP may be legal in other states but in MA I am not so sure. It seems to contradict another statute.

You should get a lawyer involved before a clerk's hearing. You may be able to obtain a dismissal or diversion where you have no record at this level.Even if a complaint were to issue, in the worst case scenario, it would end up dismissed for a 1st offense,possibly continued without a finding, or you might be eligible to be diverted. In April the governor signed alot of new legislation so that 1st time offenders and young adults could be diverted- which means no criminal record at all. Those variations largely depend on the local court, but this is where having an experienced lawyer will matter. There are many of us here on Justia that handle these all the time.

In addition, you may receive a civil demand letter- I think that sounds like this CAP program they are pitching you. Thats the 'fine' they spoke of. I suspect what they are doing could be illegal as well- they can tell you they will send you a civil demand letter, but having you sign up right then and there seems in violation of the statute to me. If it is, you should not do anything anyway until you know what will happen on the criminal side. At this point you still have a 5th Amendment right not to incrimate yourself relative to a possible criminal proceeding, and should not pay it. The issuance of the civil demand is seperate from the possible criminal action. Most folks advise against paying the civil demand so you don't get entered into a database and have your admission for the offense follow you. The civil demand will not show on a criminal record or CORI because it is not criminal. Here is the law on the civil demand letter, based on this statute. You should only be totaled up at $70. WHat they are asking is EXCESSIVE to my knowledge.

https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleII/Chapter231/Section85R1~2

You should read the law, but here is what is says about the fines:

"The damages shall be: not more than $50 in addition to any actual damages incurred if the value of the property is less than $50; not more than $250 in addition to any actual damage incurred if the value of the property is more than $50 but less than $250; and not more than $500 in addition to any actual damages incurred if the value of the property is more than $250." Some stores are overcharging on these demands and it is against the law to do that.

The new criminal justice reform package that may benefit you by diversion is described here:

https://willbrownsberger.com/final-criminal-justice-package-released/

One problem is that stores share in the National Retail Theft Database as well as the FBI LERPnet system, which track retail theft. Basically, the FBI worked with retailers and established a comprehensive database, the Law Enforcement Retail Partnership Network, or LERPnet. Being there could impact future jobs, security clearances, and in ways we have yet to imagine. Learn from this experience. It's just not worth it at all. And, stay out of that store as you are sure to be on an exclusion list now.

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