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, 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 (such as hiding an item under a coat).
This article explains the crimes in detail, as well as common possible punishments. (Your state might use the term "larceny" rather than "theft.")
What Is Petty Theft?
Petty theft involves the unauthorized taking of property valued at or below a specified dollar amount. Every state defines that dollar amount differently. Some set it as low as $300, while others might place it at $1,000 or higher. If the item’s value is more than the threshold amount, the offense becomes “grand” theft.
Some states’ laws continue to refer to these crimes as petty (petit) theft and grand theft. Others describe theft crimes by their penalty levels, such as a misdemeanor or felony theft. Still, others divide theft offenses into several degrees or classifications. So, for example, a state might have five degrees of theft, where first- through third-degree are felonies and fourth- and fifth-degree are misdemeanors or petty thefts.
How Do Prosecutors Prove Petty Theft?
In order to convict a defendant of petty theft, the prosecutor must convince a jury or judge, beyond a reasonable doubt, that the defendant took away another’s property without consent and with the intent to permanently deprive the owner of their property. Let's break down these elements.
Property Was Taken Away
Theft crimes 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 moves the item, insisting only that the defendant exercised control over it. For instance, a person might "exercise control" by transferring electronic funds or by starting a car even before shifting it into gear.
Victim Did Not Agree to the Taking
In most cases, the victim's lack of consent to the taking is obvious—such as a stranger cutting off another person's bike lock and riding away with the bike. In addition to a physical taking, taking something through deception or deceit satisfies this element. Convincing someone they owe them money, when they in fact don't, would be theft by deception. It's also a nonconsensual taking when a person tells an owner that he will return an item but actually intends, from the outset, to keep it. (Note that forgetting to return something does not meet this element.)
Defendant Intended to Permanently Deprive Victim of the Property
As noted briefly above, the prosecutor must show that, at the time the property 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. Rather, it’s the defendant’s state of mind at the time of taking the item that’s important. Taking something under circumstances that make it highly unlikely that it will be returned qualifies as not intending to return the item. For example, taking a bike and stashing it in the woods, where it would not likely be found, would show an intent to permanently deprive the owner of their property.
What Is Shoplifting?
Shoplifting is a form of theft and covers the unlawful taking of retail merchandise. Some states have moved shoplifting offenses under their general theft offenses. Others retain shoplifting as a separate crime, but many align their shoplifting penalty thresholds with their theft penalty thresholds. Because of this, many shoplifting offenses can easily bump past misdemeanors and become felonies. For instance, if the threshold amount between petty and grand theft is $750 or even $1,000, stealing a cell phone from a store display could easily be a felony-level shoplifting offense.
Each of the petty theft elements explained above applies in the shoplifting context, with some particular nuances. For example:
You don’t need to leave the store to shoplift. 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, the acts of 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.
Trying to pay less than retail value is still shoplifting. A person can commit shoplifting by altering or removing price tags or switching containers. These acts illustrate an intent to take money from the merchant by attempting to pay less for the item than the tag originally specified.
Trying to pay later won't get you off the hook. 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.
What Are the Penalties for Petty Theft and Shoplifting?
Petty theft and low-level shoplifting offenses are misdemeanors. Most misdemeanors carry the possibility of jail time (not state prison) of one year or less. A person who shoplifts high-value items, however, could face felony penalties, such as a maximum of one to five years’ prison time—but there's a good chance this person would get probation rather than straight prison time (at least for a first offense).
In most states, defendants also face fines of several hundred or even thousand dollars depending on the offense level. And, on top of fines, the judge will likely order a defendant to pay restitution (compensation) to the victim for any unrecovered or damaged property.
Additional Shoplifting Penalties
Many states allow the retailer to seek additional damages from the shoplifter (or in juvenile cases, from the shoplifter's parents). These additional penalties might take the form of punitive damages in civil court, such as treble damages (three times the stolen amount) and attorneys’ fees and costs.
First-Time Offenders and Diversion
Depending on the circumstances, first-time offenders may have the option of “diversion,” a court-supervised program in which the defendant performs community service or undergoes counseling and remains arrest free for a period of time. Defendants who successfully complete the program are often entitled to have the charges dismissed. Some states restrict these programs to misdemeanor offenders, but it’s becoming more common for these programs to open up to non-violent felony offenders.
When Petty Theft Becomes Grand Theft
Penalties for petty theft can become much more serious when the defendant has a prior conviction for the same offense, sometimes referred to as a “petty with a prior.” In these situations, repeat offenders can be charged with a felony instead of a misdemeanor. As noted above, felonies carry the possibility of time in state prison.
Some states also allow prosecutors to “aggregate” (add up) theft offenses occurring within a certain time period, such as 6 or 12 months. So, if a defendant steals five bikes valued at over $500 each in a three-month theft spree, that defendant could be looking at a felony charge for stealing $2,500 worth of property, rather than five misdemeanor charges.
These same principles (repeat offenders and aggregated offenses) also apply to shoplifting.
Defenses to Petty Theft and Shoplifting Charges
A person charged with petty theft or shoplifting has several defense strategies, starting with “It wasn’t me. You’ve got the wrong person.”
A defense attorney might also try to poke holes in the prosecution’s case to get an acquittal. For example, the defendant might argue the owner consented to the taking—the defendant thought the owner gave them the bike as a gift. Or the defense might have an argument that the defendant didn’t intend to permanently keep the item and always intended to return it.
The defense might also seek to reduce theft or shoplifting charges from a felony to a misdemeanor by challenging the value of the item.
Talk to an Attorney
While petty theft or shoplifting charges might seem minor, it's best to contact a criminal defense attorney. Your attorney can advise you on your state’s laws, including whether felony charges might apply in your situation. Also, ask your attorney about the effect of having a criminal record. A theft conviction at any penalty level reflects poorly on a person’s trustworthiness, which can make it very difficult to get a job, housing, or loans in the future.