Mr. Pat Harrington
AGO 2018-4
Official Opinion No. 2018-4
Indiana Attorney General Opinion
State of Indiana Office of the Attorney General
April 3, 2018
Mr. Pat
Harrington
Tippecanoe
County Prosecutor
111
North 4th Street, 3rd Floor
Lafayette,
IN 47901
Dear
Prosecutor Harrington:
You
requested an official opinion of the Attorney General
regarding the lawfulness of a privately instituted,
pre-arrest "deferred prosecution" program offered
by a large, well-known "big box" retailer at its
three (3) locations within your jurisdiction of Tippecanoe
County, Indiana. Our legal opinion on the matter, applied to
the facts as you presented them to us, and as further
verified through the cooperation of representatives of the
retailer, is as follows:
ISSUE
PRESENTED
Whether
a private "restorative justice" deferred
prosecution program offered to shoplifting suspects in lieu
of notifying police of the suspect's apprehension is
lawful.
BRIEF
ANSWER
The
deferred prosecution program known as "Restorative
Justice" offered by the Corrective Education Company
("CEC"), potentially violates a number of legal and
ethical provisions applicable in Indiana. While the
program's deviation from acceptable legal norms is
troubling and should not continue, it does not appear to us
that these departures were in any way willful or intentional.
However, significant changes would have to be introduced and
immediately implemented in order for the program's
operations to be regarded by us as lawful and ethically sound
in Indiana.
FACTUAL
BACKGROUND
The
Parties
1.
The Program Operator— CEC, Salt Lake
City, UT
CEC,
based in Salt Lake City, Utah, (www.correctiveeducation.com)
is engaged solely in the business of providing an
"alternative to judicial prosecution"
(sic) to retailers through a behavior modification
course for "first-time" shoplifting suspects.
The
Retailer— Walmart, Bentonville,
AR
The
retail chain in this case is Walmart, headquartered in
Bentonville, Arkansas. The program is operated under a
contract with CEC, at 36 Walmart stores in Indiana, three of
which are located within Tippecanoe County, where the
requestor has jurisdiction as the duly elected Prosecuting
Attorney.
The
Suspect—
A
person accused of shoplifting by the Retailer. According to
the Retailer, under conventional circumstances, such an
individual would typically be arrested forthwith, as a
shoplifter for whom evidence to a standard of "probable
cause" had been established. However, the suspect will
not be arrested or in any way held in further custody, if
found eligible for the program at issue. "First-time
offender" is a person caught shoplifting for the first
time at any Walmart location.
The
Program:
1.
Overview—
CEC
offered a "restorative justice" program for
Walmart, and for no other retailers in Indiana. Indiana
locations where this program has been offered include Beech
Grove, Kokomo, and Lafayette.
Walmart
stated that it adopted this program offered by CEC because it
believed that the program was a more effective way to cope
with what Walmart sees as a "growing problem" of
shoplifting. Walmart also cites what it perceives as the
hostility of the justice system to the high volume of cases
brought by its stores. The lack of support has become so
apparent that ordinances have been passed in cities such as
Kokomo and Beech Grove, where entities like Walmart can be
declared "public nuisances", and assessed monetary
fines for calling the police too often. [1] It should be noted, as
of November 20, 2017, that the would-be public
"nuisance" known as Walmart is the single largest
private-sector employer in the State of Indiana. [2]
2.
How it Works—
A
person suspected of shoplifting is detained by a Walmart
agent or employee and escorted in temporary custody to the
loss-prevention area of the store. A person trained in the
program obtains personal identification information from the
suspect and runs the data to determine if he or she is a
"first-time offender" at a Walmart location. In
order to qualify for the program, the suspect has to be a
first-time offender and between the ages of 18 and 65 years
old.
If
eligible, the suspect watches a four-minute CEC video and is
offered a choice: (1) enter into a contract with CEC to pay
$400[3]
and complete an "education course" via a six-hour
on-line program; or (2) decline the program and subject
himself to immediate referral to law enforcement, meaning
arrest. The contract also generally requires the suspect to
sign a written confession. See generally People v.
Corrective Education Co., 2017 WL 1366020 (Cal. Ct. App.
April 13, 2017); People v. Corrective Education Co.,
No. CGC-15-549094, Order Granting Motion for Summary Judgment
(CEC program constitutes extortion and false imprisonment
under California law). To facilitate compliance with the
program, a "personal coach," who is actually a CEC
employee trained in debt collection and acting as such
[4], is
assigned to the suspect.
The
required education course is available via the...
