"We're heading into uncharted waters, legally, and I think it needs to be heard by a higher court," Natick district court judge Robert Stoddart told The MetroWest Daily News earlier this month.
Speaking during a court hearing, Stoddart has twice issued injunctions against Macy's, the largest U.S. department store chain, over its practice of seeking to collect $500 from shoppers accused of theft as an alternative to civil prosecution.
Stoddart called the penalties coercive because suspects who aren't fluent English speakers often do not understand the paperwork they sign agreeing to pay the fine, the newspaper said. Some suspected shoplifters also believed that they wouldn't arrested if they paid the fee, even though a civil case and a criminal case are unrelated, the newspaper quoted Stoddart as saying.
An attorney for Macy's, Robert Field, disputed Stoddart's claim that the practice is unfair, while declining to comment for this story. Officials from Macy's didn't respond to request for comment. Stoddart couldn't be reached.
Macy's practice isn't new or unusual. According to the National Association for Shoplifting Prevention (NASP), laws in all 50 states permit merchants to pursue civil demands or civil restitution against suspected shoplifters so they can recoup the costs they incur to protect their stores from theft. Retailers have had these rights for decades.
"The philosophy behind these statutes is that there is a cost -- and unfortunately a growing cost -- because there are so many people who would shoplift from stores," Barbara Staib, NASP's director of communications, said in an interview with CBS MoneyWatch.
Staib, whose organization is funded by offender fees, noted that there are situations where retailers might pursue payment if criminal charges aren't brought, such as if someone as a first-time offender was sent to a pre-trial diversion program or if the police and prosecutor decide not to pursue a case.
Were in not for the action of retailers, it's unlikely that police departments would bring many shoplifting cases because they happen on private property and wouldn't otherwise know about them. Suspected shoplifters in Massachusetts and other states soon realize the power of retailers when they receive notices from attorneys representing the merchants that brought the case against them demanding payment.
Such notices are typically from "some little nickel-and-dime law firm in Florida," said David Rossman, a professor at the Boston University School of Law and director of the school's Criminal Law Clinical Law Programs. "What I think these guys have done is they made some sort of deal with the merchant that we'll take a cut of whatever we can get from people."
"I have never run across anybody who has ever paid," he added. "What happens is we have defended lots of people on shoplifting charges who then, after the court disposes of the case, almost always without a conviction, they get one of these notices. Then, we just send a letter back to those lawyers in Florida saying don't contact these people -- contact us. We never hear from them again."