By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

A middle aged woman, without previous convictions or criminal history is charged with taking from a department store something she could have easily paid for and certainly has no need for. This scenario happens more often than people would imagine. . . .

There are a number of clinical studies which indicate that depression is the single largest psychological factor in shoplifting, and especially amongst middle aged women. Even the National Association for Shoplifting Prevention (NASP), a non-profit, law-enforcement-oriented organization acknowledges that Shoplifting is a psychological issue for many. Quickly browsing the NASP website will even pull up a fairly exhaustive list of studies that relate to the psychological aspects of shoplifting.

Clinical studies on depression and shoplifting seem to break first-time offenders into two categories: (1) those who shoplift by rational choice, and (2) those who shoplift in response to depression or other psychological condition. Unlike the doctors and scientists, our laws do not do much to distinguish much between the professionals and those who steal without an apparent purpose.

Conceivably, a shoplifting defense could be built around a diagnosed case of depression. Anytime the State must prove intent (as they do in a case of Theft), it can be argued that a compulsive act linked to a psychological condition is far from intentional. Moreover, Texas Penal Code 8.01 provides for a defense of insanity where “the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.”

An argument that is conceivable does not automatically make it persuasive. An attorney’s enthusiasm for novel arguments and confidence in his ability to present them must always be tempered by the reality in which they will be received. The reality is that theft cases in Collin County are not warmly received–even those with a good defense. And the statistics support this: in 2011, 57 theft trials were held in Collin County which resulted in 56 convictions.

Although the letter of the law pays little respect to the motivation behind the theft, the discretion given to prosecutors in disposing of cases alongside the judge’s discretion in assessing punishment presents an arena in which much can be accomplished.

Even when the case is one that is not suited for trial, client advocacy still remains crucial. In theory, dispensing punishment should serve many objectives, but in any event should be suited to the crime and tailored to the circumstances. When those who hold discretion can be persuaded that the circumstances call for rehabilitation as opposed to sending a strong message, these cases can be resolved by offering a second chance and an opportunity to address a problem without suffering a permanent blemish on a criminal record.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.