Should Retail Theft Suspects Benefit From Discount Prices?

If an item is on sale, should someone who steals it be able to get a deal, as well?

That question was raised by a recent case in Colorado, where two men accused of stealing shoes, KitchenAid mixers and other items from a Kohl’s department store argued that they should face a lesser charge based on the sale prices of the items.

The argument was vitally important to their case. In Colorado, theft under $2,000 is a misdemeanor punishable by up to a year in jail. But theft between $2,000 and $5,000 is a felony punishable by up to 18 months in prison.

The district attorney’s office argued that the “documented value” of the items was $2,094.98. That would make the theft a felony.

But the two men, Michael Green, 50, and Byron Bolden, 37, who had pleaded not guilty, contended that the value of the items was $1,856.19, because some of the goods, including at least one of the mixers, were on sale, said Thomas A. Ramunda Jr., Mr. Bolden’s lawyer. That would classify the charge as a misdemeanor.

“It was our position,” consistent with state law and Colorado case law, “that in order to determine the value of the items on the date of taking, one must consider the sale price, which is evidence of the retail price (what a seller is willing to accept, and a buyer is willing to pay) also known as fair market value,” Mr. Ramunda said in an email.

He said that in some cases, such as the theft of old jewelry or antiques, determining the “fair market value” can be challenging. But when items are stolen from a store, he said, a police officer will usually report the value based on store labels, tags and several other factors that could reveal some of the items were on sale.

Mr. Green and Mr. Bolden were accused of loading up shopping carts and stealing from a Kohl’s in Parker, Colo., 25 miles southeast of downtown Denver, on Sept. 10, 2022. But they were not immediately arrested. Prosecutors said they were later identified through surveillance video and then charged.

Mr. Ramunda said the defense was able to determine the “exact price” of each item through a subpoena to the Kohl’s corporate office. Kohl’s did not respond to a request for comment.

“This is not some defense shenanigan,” Mr. Ramunda said. “The theft statutes in Colorado are very specific when it comes to evidence of value and the determination of the level of crime and punishment. And I stand firm that the value of the items was under the felony threshold in this case.”

Eric Ross, a spokesman for the district attorney’s office in the 18th Judicial District of Colorado, which prosecuted the case, rejected the sales-price argument. He said the Parker Police Department spoke to the Kohl’s loss prevention manager, who provided the retail price of the stolen goods.

Even if some of the items were on sale, “we argued that doesn’t count,” Mr. Ross said. “You can’t get sale prices or sale promotions on stolen goods. Sales prices, promotions, coupons — all of that only applies to paying customers.”

On Dec. 6, a jury agreed and found Mr. Green, of Aurora, and Mr. Bolden, of Denver, guilty of felony theft, Mr. Ross said. Mr. Green was sentenced to 15 months in prison. His lawyer did not respond to a request for comment. Mr. Bolden was sentenced to 90 days in jail, with credit for time served.

The case came as retailers nationwide have warned of widespread theft, their concerns amplified by videos that have circulated online of brazen thefts. But the increase in shoplifting appears to be limited to a few cities. In most of the country, retail theft has been lower this year than it was a few years ago, according to police data.