Stronger penalties for low-level retail theft are being lauded as a positive step in the fight against crime, but this contradicts established evidence that harsher sentencing increases repeat offending, writes Nicholas Dynon.
“Public confidence in our justice system is undermined if people can steal with apparent impunity. It’s disheartening, and our government will not sit by while shoplifters rob businesses of their livelihoods,” said Justice Minister Paul Goldsmith in a 01 July announcement.
“Currently, the administrative burden can deter retailers from making official complaints, and lower-level offending often goes unreported or unpunished,” he said. “Our government is restoring real consequences for crime, and shoplifting is no exception.”
The ‘real consequences’ have been wrapped up in a bundle of proposed changes that include:
- Introducing an infringement regime for shoplifting in retail premises. For stolen goods valued up to $500, infringement fees will be up to $500. For goods valued over $500, fees will be up to $1,000.
- Strengthening the penalties for theft. The maximum penalties will be one year imprisonment (if the value is approximately $2,000 or less), or seven years imprisonment (if value is approximately more than $2,000).
- Creating a new aggravated theft offence for when the value of the goods is under $2,000 and the theft is carried out in a manner that is offensive, threatening, insulting, or disorderly.
“Retailers are crying out for proactive solutions that prevent crime and enhance the safety of their staff and customers.”
“Harsher penalties could mean up to twice as long behind bars for aggravated theft, and criminals will be forced to think twice before destroying more lives,” said Courts Minister Nicole McKee.
“Our government is focused on restoring law and order, reducing violent crime, and putting victims first in our justice system,” she said, thanking the Ministerial Advisory Group for Victims of Retail Crime and its Chair Sunny Kaushal for their shaping of the proposed changes.
Retail NZ backs the change
According to peak retailer body Retail NZ, the new penalties are a positive step in the fight against retail crime.
“It’s great to see new measures being introduced that will broaden opportunities for shoplifting to have significant repercussions,” said Retail NZ Chief Executive Carolyn Young, who is also a member of the Ministerial Advisory Group on retail crime.
“Retailers are crying out for proactive solutions that prevent crime and enhance the safety of their staff and customers,” she said. “Our members continue to face high rates of violence and crime, putting both their employees and the public at risk, as well as threatening the financial sustainability of retail businesses.”
According to the retailers’ group, retail crime is a significant issue, impacting more than 99% of New Zealand retailers and costing well over $2.6 billion a year.
Retail NZ’s COMS Retail Crime Report 2024 found that 73% of retailers experienced shoplifting during the year and 58% experienced threatening behaviour.
“Shoplifting is at epidemic levels and recidivist offenders are a big issue,” Ms Young said.
Experts rubbish punitive approach
Established academic research suggests that harsher penalties are not a silver bullet. In fact, studies have roundly debunked the fallacy that harsher penalties dissuade people from committing crimes.
Research confirms that while punitive approaches may address electoral pressures on governments to be seen to be tough on crime, they tend ironically to fuel recidivism.
“Deterrence is very largely an article of faith. I call it sentencing’s dirty secret because it’s just assumed that there is deterrence … but what the research shows is that the system has little to no deterrent effect.”
Being ‘tough on crime’ contradicts evidence that prisons are a training ground for harder criminals, wrote University of Auckland masters graduate Bex Silver in an article in the lead-up to the 2023 national election.
“This long-standing punitive approach to crime withstands the plethora of evidence and research that disproves its effectiveness for reducing re-offending,” she wrote. “On the contrary, criminal justice experts and statisticians have consistently said harsher sentencing increases recidivism.”
The ‘we need to get tough on crime’ narrative that dominated the agendas of political parties ahead of the 2023 election, she wrote, promised “victims a false sense of safety which contradicts the comprehensive and compelling evidence that prisons are a training ground for harder criminals.”
According to Silver, it’s a narrative that’s “driven by opportunistic politicians wanting an easy vote; politicians who claim to know better than the experts in this field.”
It’s a point with which University of New South Wales Emeritus Professor of Law David Brown concurs.
“Deterrence is very largely an article of faith,” he wrote in a 2020 article. “I call it sentencing’s dirty secret because it’s just assumed that there is deterrence … but what the research shows is that the system has little to no deterrent effect.”
Deterrence theories in criminology are based on the idea that attempts to deter crime rely on an increase in either the severity of penalties or the certainty of their imposition”.
According to Professor Brown, harsher punishments, such as longer prison sentences, not only do not prevent crime but may actually have the opposite effect.
“What research is increasingly showing is that imprisonment itself and punishment more generally is actually criminogenic – it makes it more likely that people are going to re-offend,” he said.
“The severity of punishment, known as marginal deterrence, has no real deterrent effect, or the effect of reducing recidivism.”
Even the US Department of Justice’s National Institute of Justice has published public guidance explaining that increasing the severity of punishment does little to deter crime.
“Some policymakers and practitioners believe that increasing the severity of the prison experience enhances the “chastening” effect, thereby making individuals convicted of an offense less likely to commit crimes in the future,” states the National Institute of Justice. “In fact, scientists have found no evidence for the chastening effect.”
“Research has found evidence that prison can exacerbate, not reduce, recidivism.”
Likelihood of getting caught is key
Risk is typically calculated as a function of likelihood and consequence (Risk = Likelihood x Consequence), where likelihood is the probability of an event occuring and consequence is the impact of the occurrence.
In the context of an individual perpetrating a theft, we can think of the risk borne by the individual as the likelihood of failure (e.g. walking away with nothing, or walking away in handcuffs) multiplied by the potential consequences of failure (e.g. penalties such as a criminal record or custodial sentence).
So, if tougher penalties (increased consequences) don’t provide a disincentive to offend, what about increased likelihood of failure?
As it turns out, an increased likelihood of apprehension is indeed something that thieves factor into their decision making. According to UNSW’s Professor Brown, “if people think they’re more likely to be caught, that will certainly operate to some extent as a deterrent.”
US National Institute of Justice research agrees that “the chance of being caught is a vastly more effective deterrent than even draconian punishment.”
Informing the USNIJ’s research is a study by criminology professor Daniel Nagin that found that the inefficacy of legal consequence as a deterrent “has important policy implications among which are that lengthy prison sentences and mandatory minimum sentencing cannot be justified on deterrence.”
In a study of shoplifters, US academics Frances Weaver and John Carroll found that seasoned shoplifters are deterred less by potential consequences such as arrest, trial, fines, and jail, and more by ‘strategy-specific problems’ such as “item size, security devices, and the chance of being observed.”
Additionally, they found that seasoned thieves tend to perceive a relatively low risk of failure due to their confidence in being able to thwart the security measures put in place by store owners.
According to Weaver and Carrol, expert shoplifters perceive the risks of being detected and caught as under their own control because they can rely on their expertise to avoid detection, ie. their expertise enables them to shoplift with a high degree of confidence of success.
Indeed, apart from the perpetrator’s skill and experience in the planning and execution of an act, the two key factors influencing their likelihood of failure (in no particular order) are (i) police response; and (ii) the efficacy of any security measures put in place by the store owner.
If a perpetrator considers the likelihood of failure in relation to a potential job to be high (due to strong and visible security measures, fast police response times, etc) then they might scratch it and consider an alternative plan. If the likelihood of failure is low, then it may be game on – even if the potential consequences are significant.
In short, strong in-store security measures and certainty of timely law enforcement response are more likely than severity of punishment to dissuade an individual from perpetrating theft at a store.
Recommendations made to the government earlier this year by the Ministerial Advisory Group for Victims of Retail Crime include a number of amendments to the Crimes Act allowing citizen’s arrests at any time of day and providing clarification on use of restraints and reasonable force. In theory, such reforms may clear the way for in-store security personnel to respond to a theft.
But in practice, there’s some devil in the detail. The deployment of arrest-capable security personnel in stores would necessitate significant training investments and the willingness of retailers to pay more for personnel competent in the application of reasonable force – and to accept the risks involved. Some larger retailers and mall operators may be in a position to shoulder this, but it would likely not be welcomed by the many who are accustomed to paying for minimum wage guards.
It’s also likely to be out of reach for the majority of New Zealand’s smaller retailers.
Reducing the incidence of theft in society more generally is a broader question and one that involves a range of economic and social factors. Addressing these factors – rather than adding to them by increasing the country’s prison population – is where government policy has the potential to make a positive impact on retail crime.
But that’s difficult policy, and it doesn’t make headlines.
