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I work with a few former prosecutors, and this topic has come up a number of times. It's easy to look at the number of dismissals and non-prosecutions of shoplifting and conclude that the prosecutors are being wishy-washy, but the realities of the situation often leave them with no real alternative. Consider the following case: A store clerk observes a thief stealing an item and calls the police. The suspect is arrested, and a body search uncovers the item. There is video of the suspect stealing the item. This is the perfect case, a slam-dunk to convict right?
In theory, yes; the evidence is incontrovertible. But think about what's actually required for a conviction:
The only witness who has a reasonable chance of actually testifying at trial is the cop, but unless he also happened to be there when the item was stolen, his testimony is useless on its own. A clerk making ten bucks an hour is unlikely to spend her day off testifying in court, and her employer is unlikely to pay her to not work. And unless the clerk is also the manager or has some familiarity with the CCTV system, they're going to need a manager to testify if they want to use the video, and good luck with a manager taking the day off to testify. With small convenience stores, there may be one guy running the whole place who would have to close for the day if he were required to be in court. The prosecutor's best bet in these cases is to confront the defendant with the evidence, offer a deal, and if they take it they take it and if they don't, drop the charges. Of course, defense attorneys know this as well, and they know why prosecutors do this, so they can be fairly confident that even if the charges aren't dropped that their client won't be convicted anyway, and the prosecutors aren't stupid so they can just skip the first step and dismiss the case before they waste any time on it, unless the victim is adamant about prosecution. Some are, but when a store proprietor finds out how much it's going to cost him to prosecute over a few hundred dollars in merchandise he usually decides it isn't worth it. Keep in mind that in most of these cases the merchandise is actually recovered, so there isn't even much of a tangible loss. Paying two employees a day's wages to testify is an expensive way of proving an abstract point.
Now combine this with the fact that DA's offices are chronically short-staffed and have high turnover rates. Some people love it, but most people burn out pretty quickly. You make less money for more work. They don't exactly have the manpower to take on every single theft case that gets reported. It's similar to the solution you give of building more prisons — it's easy to say "hire more DAs", it's quite another to actually be willing to pay for it. We're dealing with this situation right now in Allegheny County. County Executive Sara Innamorato is the exact kind of single, progressive, tattooed, DSA-supporting lefty that J.D. Vance hates. The county is currently facing a budget crisis, and she wants to increase property taxes to cover the deficit and give a small bump to the DA's office budget. County Council has describes her plan (which would increase property taxes by $182 for the average homeowner) as dead on arrival, and she's basically thrown down the gauntlet and told them that if they had any better ideas she'd consider them.
If tax increases are a nonstarter in a place that elected Innamorato as executive, they aren't going to play much better elsewhere. Demanding increased funding for police and prosecutors sounds good, but the people making these arguments out of one side of their mouth are bitching about taxes being to high out of the other side. It's basically like the school board meeting from The Simpsons. Where is this money supposed to come from, exactly? take it out of the highway budget? EMS? The board of elections? Parks and recreation? It's easy to blame bullshit on your political opponents, but it's hard to offer any realistic alternatives.
I thought there would be some exception for evidence that is effectively self-documenting. Sure the defense can try to claim it wasn't their guy or that the timestamp on it is wrong, but it seems unnecessary from a basic epistemic perspective to require that proactively.
Because there are so many. If thievery and crime was rarer, they would have more manpower per case which would lead to a higher conviction rate. Which would lead to crime getting rarer.
Well Rudy has gone off the deep end now, but a couple decades ago he pioneered a pretty good alternative in NYC.
The rules of evidence consider some items self-authenticating, but this is limited to things like public records where it's obvious to tell what the document is from looking at it. The only time this might apply to video is if it's an episode of a TV show or something like that. A CCTV video isn't self-authenticating in the slightest. I don't have time to get into every piece of information that the jury would need to know about the tape before we can show it to them, but, at the very least, you need someone to identify the location that's actually being filmed. A random store interior isn't going to be immediately and obviously recognizable as Aisle 6 of the Springfield Try n' Save.
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Make the thief, if convicted, liable for the lost wages. If they can't pay, have the state front the money and charge the prevailing interest rate to the thief. If they malinger once out of prison, impress them and make them work it off laboring for the state.
You'd honestly have to do more than that. I'm a litigator, and I regularly attend Plaintiff's depositions. Most of the deponents understand that, while unpleasant, it's part of the process. A few however, act like the whole thing is bullshit and get annoyed any time a lawyer jumps in and wants to ask questions. I want to tell these people that they're suing my company and that they're probably going to get a large settlement so the least they can do is answer ten minutes of questions and if that's too much to ask then they can drop the case and go home right now.
I understand that testifying is inconvenient, but it's part of the process. If we could snap our fingers and put the bad guys in jail, we'd do that, but that isn't how it works. If a shop owner expects the legal system to convict shoplifters, then participating in the system isn't too much to ask.
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America can find trillions to pay for silly overseas wars but preventing the robbery of stores is too costly?
I have some experience with legal practitioners, there's a certain inherent status-quo-ism whenever they hear anyone looking for a quick fix to these absurdities. They produce all these examples of edge-cases and procedural reasons for why things can't be done or changing anything is very complicated. Or they blame badly drafted laws (which is fair and reasonable given how badly written some laws are in my country, presumably the USA too).
But I think to myself, none of this applies when people really want something. Free commerce and protection of private property? Not in war time, your property belongs to the state! You're in the army now, straight off to the front! Prices? Regulated! Speech? Restricted! Rights? Gone!
Or take COVID. There must've been a million reasons why, in theory, you can't just order everyone to stay in their houses, have businesses shut down, why it's just too impractical and hard and expensive. But they did it anyway. Were there unreasonable edge-cases and were there absurdities? Absolutely, in industrial quantities.
Law is interpreted and enforced by men. If they really want something to happen, they can make it so. If they really want to stamp out petty crime like this, it can be done.
I mean, yeah. Boost pay for prosecutors and hire more of them. Same for public defenders. Expand the courts. Give police enough money that they can actually investigate all of the crimes that are reported to them. Make juror compensation $500/day so people will stop trying to get out of it. I don't have any problem with any of this. But that's not the world we live in. the point I was making wasn't that you can't make changes to fix these things, but that the reason for this goes beyond woke prosecutors deciding they don't want to charge shoplifting.
Treating petty offenses (at the discretion of the prosecuter I suppose) more as administrative violations would probably work -- lower the burden of proof (as with traffic tickets), then you can slap tickets on the prolific offenders and jail them when they don't pay up.
Not that anyone in a position to do this would want to, but it would be way cheaper than your idea.
The fact the prosecutors use paper-bag tests to determine who to charge with what is the entire problem in the first place. It would work with low-level law enforcement, though (in fact, there's already a workable model for an entire division of law enforcement to do this job; game wardens as specialized police typically work this way, so does mall security to a point).
But then again, that's just going straight back to Peelian principles (also, obligatory "this is basically just 2nd Amendment by proxy").
The part that could be 'at their discretion' would be whether to charge criminally or not -- so the cops give you a ticket for stealing which you have to pay regardless, and the prosecutor may or may not upgrade to actual charges. Ideally he would do so, but if he doesn't at least there's something. Kind of an additional level on the summary/indictable (Canada) or misdemeanor/felony (US, I think?) ladder.
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So there's an official in ancient Japan, sharp as a tack, a real up-and-comer. He's rapidly making his way up the imperial bureaucracy, and his rivals decide they need to nip him in the bud. The capitol is overrun with pickpockets, has been forever; the crimes are too trivial for serious punishments, and yet no lesser punishments seem to dissuade the criminals. So they decide the thing to do is to give him the job of cleaning up the pickpocket problem, and then when he fails to do so, they can quash his career.
He accepts the job, thinks it over, and issues a new imperial statute: pickpocketing is now legal, provided the pickpockets obtain and carry an official license from the government while plying their vocation. This license is a large placard, five feet tall and two wide, with the word "pickpocket" written on it in large letters visible at a considerable distance. Pickpocketing without a license is now not just pickpocketing, but violation of the imperial law, a crime punishable by death.
The pickpockets examine their options, up-stakes and relocate elsewhere. The official's career proceeds unimpeded.
That just sounds like Discworld's Ankh-Morpork.
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This is exactly the argument for just hanging them- crime is committed by the same few people, but rarely prosecuted, so anyone who actually gets convicted is a serious repeat offender.
Yeah, we could do that. But when your 13-year-old gets caught stealing a dirty magazine from a convenience store, don't come crying to the court.
"If you want law enforcement, don't complain when you get anarcho-tyranny instead". Yes, this strategy keeps "working", but it doesn't actually solve the problem better enforcement would.
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The sorts of stores that will still stock physical porn when my children are teenagers are the sort which won’t even let them in the front door without an ID. This isn’t the eighties.
Okay then, replace it with a six pack of beer from Sheetz, or a candy bar, or whatever the hell else you think kids steal these days.
You're talking as if "kids" as a general category are broadly guilty of shoplifting something. IME, most kids didn't, and don't, shoplift; and those who do tend to be greatly concentrated in terms of class, culture, family background, etc.; and much as with crime in general, it's dominated by a small number of repeat offenders.
It includes more people than you think it does. I can recall the following instances from high school where I was either aware of or partially complicit in theft:
One friend of mine would steal practically anything he could out of museum gift shops whenever we were on field trips. I don't even know that he necessarily wanted the stuff he was stealing. He was a good kid who got good grades and came from a good family. He's currently some kind of engineer for General Electric.
A group of us decided to whitewash the local graffiti tunnel just after all the seniors in our graduating class painted their names on it. A friend who worked at Wal Mart put several hundred dollars worth of white paint on the loading dock for us to steal. We kept joking about it being a heist. I wasn't there for the actual heist, but I participated in the whitewashing.
Two friends of mine were convicted in juvie court for stealing plants from a local nursery that they intended to give as Mother's Day gifts.
On the band trip junior year my roommates and a few other friends did a grab and run of beer cans out of the cooler in the hotel bar. My role was to create a distraction by trying to get served underage and getting into an argument with the bartender.
I was at a Halloween party and a bunch of us piled into a Dodge Neon and drove to a farm field nearby where we proceeded to grab pumpkins and throw them in the back of this one kid's El Camino. This fat, black cop who was the local fuzz showed up and started chasing us while running with a flashlight. I remember I had to jump a fence at the edge of the field and I actually stopped to let him catch up because I wanted to see how he negotiated it; he was trying to wriggle his fat ass underneath it and I started laughing before continuing running. We all had to walk back to the party, and when the officer showed up and saw all the pumpkins my friend's parents said that they told everyone to bring a pumpkin to the party.
I'm not aware of any of the people involved in the above incidents having any contact with the law whatsoever as adults. I also spent 4 years working for the Boy Scouts and dealing with kids all the time who, while I don't have any specific knowledge of criminal activities, they were the kind of jackwagons who I wouldn't be surprised if they stole something. The entitled rich kid brats who are bound and determined to see how close to the line they can get before I have a talk with their scoutmaster about my ending their participation in my program.
When people say shit like this I always get an image of the naive mom who says "well certainly my David would never do anything like that!" Kids are idiots, and if you think that the impact of harsh punishments for petty crime among teenagers would be limited to minorities and poor people, well, I have some swampland in Jersey for sale.
Sounds to me like you just hung out with a particularly bad crowd. Nobody I knew growing up was anything like this (and I come from a rather poor background, probably much lower class than yours).
Plural of anecdote is not data, personal experience not necessarily representative, etc.
The point isn't that it's representative. I did not hang out with a particularly bad crowd or anything; these were normal, middle class kids who all thought the whole thing was a big goof. The point is that normally good kids from good families occasionally make stupid mistakes when they're younger but grow out of them and are otherwise successful, law-abiding members of society. So when I hear people here unironically spouting moronic ideas like mandatory hanging for petty theft, I want them to at least pause and consider the possibility that they might be signing the death warrant for someone close to them, and for countless other people who aren't the complete trash they assume members of certain groups are.
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Another data point: my good buddy at Google is in charge of [major thing that hundreds of millions of people use]. When he was in High School, there was a time when he was stealing regularly from retail stores. He was addicted to the thrill. Got caught, got community service. Lots of people know/knew him, but I'm pretty confident that only a handful are aware of this fact. The poor, white culture he and I came from (and I would bet you too, if you're a white American) views being a thief as shameful, so there's huge social pressure to keep it secret.
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It sounds like you and your friends were idiots. My friends and I didn’t get up to anything this bad. Of course we did stupid shit, but none of it involved theft. My parents would have been mortified to learn I was involved in stealing anything.
Also, I don’t know what gives you the impression that I support draconian punishments for first-time teenage offenders. In any of the anecdotal scenarios you referenced, I’d be happy to see the kids involved forced to do some sort of community service. The people for whom I have zero sympathy, and for whom I prescribe maximally harsh penalties, are habitual offenders.
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Sure, kids steal stuff and do other bad things. But it is certainly possible, in principle, to have a system of law and enforcement that comes down hard on shoplifting gangs and habitual criminals while applying consequences to the girl swiping some earrings at Claire's which, while unpleasant, are not ACTUALLY life-ruining.
That when people ask for that, they're offered tyranny -- "OK, but if your kid does anything wrong we're going to have him thrown into the general population with the father-stabbers and mother-rapers" -- or anarcho-tyranny -- "We'll start by throwing middle-class kids in jail if they step out of line and if that doesn't work, maybe we'll consider moving on to the gangs" tends to make them stop asking for enforcement. But that's because the responders are acting in bad faith and don't actually want to stop the problem.
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Are you a time traveler from 1975? Do you think teenagers still need to steal “dirty magazines from convenience stores” to be able to see boobs?
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Here's one off the top of my head: If the store catches you stealing, they can beat the shit out of you with a stick, and we collectively agree to, at most, tut-tut about it. I note that this solution arises organically without the need for any government intervention at all, and in fact significant government intervention is needed to stop it from instantiating itself.
It should go without saying that this is not the ideal way to do things. It seems pretty clear to me that it still, heh, beats the scenario you're offering where thieves are allowed to steal without consequence because it's just too much paperwork otherwise. If your message is that the law is so sclerotic that basic rules like "don't steal shit that doesn't belong to you" cannot be enforced, then my reply is that the law in its present form has outlived its usefulness.
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Aren't witnesses legally required to testify, under penalty of being held in contempt of court?
If they’re subpoena’d. Making prosecutors subpoena witnesses over misdemeanors is probably a norm violation even if there isn’t an actual rule against it.
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They are, but if the complaining witness isn't motivated enough to show up for 15 minutes of questioning, then the prosecutor isn't going to waste their time with the case either.
I mean, this is obviously not true -- the State will prosecute DV even if the complaining witness is actively hostile to the prosecution.
I agree factually, but this is a matter of will not fact.
They might prosecute, but realistically they won't get anywhere unless there's other evidence, like the cop witnessing the assault as he arrives at the scene.
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Seems like you could probably work with the big corporate chains to encourage their employees to testify. A day's wage to have an employee testify should reduce losses that pay dividends, or a tax break for collaboration with local law enforcement & courts on this matter. Ma and Pop shops seem like they'd be encouraged by necessity and a glimpse at actually tackling the problem, but getting them into court for a day might be more difficult.
Either way these things should be made (some amount) easier just by proving they are having an effect. People become motivated when they believe they're contributing to tackling a problem they've dealt with first hand.
I admit even typing them they sound like optimistic "just solve the problem lol" ideas, but it shouldn't be some impossible feat of man to convict thieves. At least if we are looking at a power law, then resources can be focused. That darn constitution and protections do be causing inconveniences. Sad!
It's not, it's just very difficult under the system as shaped and maintained by our ruling elites. (I am once again reminded of a trad-cath friend's argument that pretty much all of the US's problems, this one included, have known and simple solutions — not necessarily easy, but simple — only we're not allowed to enact out any of them, leaving a single political priority.)
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Stuff like this is exactly why I support a more inquisitorial model of criminal justice. One that does not require a complicated trial process, necessitating multiple layers of in-person testimony, for a crime that can easily be verified with a simple sharing of a video file, or even just by the police finding a shoplifted item on the person of a shoplifter. The dispensation of justice in such a scenario should be trivially simple and quick to administer, and should not require so many individuals to burden themselves.
What you're essentially advocating for is the abolition of the 6th Amendment, which gives the right to confront one's accusers. Even if we eliminated this requirement, though, it still doesn't solve the problem, as the witness still needs to be present, it's just the judge doing the questioning and not the lawyers. As for your specific evidentiary examples, the video is actually the least persuasive piece of evidence in the scenario, since it probably doesn't show enough to convict. I grabbed the first shoplifting video I could find from YouTube; it's a news report about a theft from a liquor store in Kenya. https://youtube.com/watch?v=ErfIL-_UOiA This is actually a better video than I originally pictured — it's in color, has reasonably high resolution, and appears to show most of the store. Now tell me, without looking at the transcript, what items are being stolen and how much do they cost? Would you be confident in being able to identify someone you had never seen before as the person in this video? Would you be okay with someone you've never met before identifying you in this video? Now imagine that the only video we have just shows you removing an item from a shelf, and all you can see is the aisle that you're in. It's good evidence in that it buttresses other testimony, but it's pretty useless on its own.
This is even worse evidence. A police finds an item on you. What basis does he have to determine that it was stolen? How would you feel about the following scenario: A shopkeeper reports that he observed a white male stealing a pair of expensive headphones from an electronics store. The police see you a block away listening to a pair of headphones that match the shopkeeper's description. The shopkeeper does not identify you in court, but you are nonetheless convicted on the cop's testimony that you had the shoplifted merchandise in your possession?
The US has fairly generous citizen’s arrest laws for holding suspected shoplifters until the police arrive.
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Just to steelman this, unless the people guilty of stealing have reason to fear getting punished, the law against stealing is basically dead. There are large portions of most major cities where these kinds of situations exist. The laws against stealing, drug dealing, and murder are not enforced consistently. The results are not freer people unconcerned about crime, in fact it’s the opposite. In those areas, since the cops can’t (often because of government policies) deter crime or reliably enforce the laws, the people who can’t afford to leave take the job of self protection on themselves. Bars go over windows, people carry weapons, and gangs take over to protect criminals from other criminals. It’s basically a post collapse society on display in the middle of downtown Chicago or St. Louis.
Sure an inquisition isn’t a great system for a modern functioning state. It’s not something that’s compatible with civil rights as we know them. But the other side is that the alternative is also terrible for civil rights. You have a right to private property. Sure, but what good is it when the cops for lack of proper paperwork and prosecutorial authority simply shrug as local thugs help themselves to anything not physically impossible to steal? What good is it to be protected from the cops detaining you when you and your family are prisoners in your own homes behind barred windows because your neighborhood is to unsafe to be outside in? What good is it to say “I am safe from the cops shooting me” when you have to worry about getting caught in a drive by shooting? Freedom isn’t just freedom from the state, but the presence of law, order and justice. If you don’t have the ability to come and go as you please without fear of the Cripps, it’s not far off from not being able to come and go for fear of the cops.
I think you misunderstand my point. The police will make arrests for retail theft. District attorneys will prosecute. There's no reluctance whatsoever on the part of those who are tasked with enforcing the law. These are, on paper, some of the easiest cases to prosecute. The problem is that the victims of these crimes are unwilling to make a minimal effort to engage in necessary participation. Police and prosecutors aren't going to waste their time and the taxpayer's money pursing cases where they can't get a conviction because the victim won't participate. I have no interest in upending centuries of well-established constitutional protections because of the apathy of those the laws are designed to protect.
It depends on the jurisdiction. In some places, these shop owners do try to get people prosecuted, do cooperate, and it turns out that the state is much less concerned about putting the guy in jail and thus they see the effort as a waste of time. It’s an odd situation. They’re kind of stuck, not only because of the costs, but the risks that they can count on other people to care about. If they testify and press charges, do the next group of lawless thugs come in and shoot potential witnesses? Are they or their children going to be targeted because snitches get stitches? And if they need the cops are the cops going to bother to show?
See the situation in lawless areas is because of years of neglect and distrust in which the criminals tend to get away with it. The only solution to my mind is to create a system, even if extremely flawed (inquisition is far from ideal) in which you can hope to put enough of the gang members in jail to lower the crime rate and have people willing to participate. If I lived in a place controlled by gangs, I’m not cooperating simply because of the two, the cops are the weak ones, and they can’t or won’t protect me.
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Why not?
Why is this a problem?
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He asks the store clerk (with his bodycam on to record the interview) to describe what happens, and then he watches the video the store has of the shoplifting. Do you have any idea how well-surveilled Walmart is? How many cameras they have everywhere? And how advanced their facial recognition technology is?
You’re acting as though getting falsely accused of shoplifting is something that happens to middle-class white people all the time. How likely do you actually think that scenario is? I’ve gone my entire life without ever being accused of shoplifting. I simply assess the probability of the scenario you’re describing as basically nonexistent.
Also remember that we’re talking about a small segment of society who shoplifts over and over and over. If it’s someone’s first time ever being charged, then sure, let’s have some heightened evidentiary standards. If it’s Charlie the Crackhead, caught shoplifting from the same store he’s already shoplifted from 10 previous times, then there is zero reason to go through the whole song and dance. Who are we kidding?
Is this meant to imply that we should accept low-class nonwhite people being falsely accused, because they're not us?
No, it is not.
However, we’re talking about tradeoffs: on the one hand, reduced standards of evidence and expedition of the trial process is likely to increase false accusations, while also massively reducing the odds that a criminal will avoid prosecution; on the other hand, heightened standards of evidence and the requirement of a full in-person trial process for all accused person is likely to reduce false convictions, while exposing the public to greater levels of crime by allowing criminals to avoid prosecution.
When considering these tradeoffs, it’s important for me to keep in mind which side of that ledger is likely to impact me personally. Am I more likely to be falsely accused of a crime than I am to be the victim of a crime? Almost certainly not. As a matter of fact, I have already been the victim of multiple crimes, whereas I have never been falsely accused of a crime. In fact, I’m not even sure I know anyone who has.
It turns out that the vast majority of people accused of crimes are in fact guilty of those crimes; this is particularly true of crimes like shoplifting which nearly always produce some sort of video record and/or physical evidence. It is generally quite easy for businesses to determine the specific individual responsible for a given act of shoplifting. And if there is the rare instance of mistaken identity, such a thing is unlikely to happen to a person such as myself, who bears little resemblance to any of the demographics responsible for the lion’s share of shoplifting; therefore, I’m extremely unlikely to ever need to avail myself of any of the myriad protections afforded to criminal suspects.
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Our systems were developed for free Englishmen. The demographics are rather different now.
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If this is true, why is shoplifting as a societal problem so localized? All of the factors you mention should also apply to Texas, but I have seen exactly one shoplifting event in my entire life. People in LA or San Francisco say they see it every week.
Because in Texas the law, patchy as it is, exists to protect respectable citizens from scoundrels. In California, the law exists to protect scoundrels from respectable citizens.
To put another way, a certain amount of very low level rough justice is tacitly allowed and encouraged by Texas police and, to the extent they know about it, prosecutors. Surely you’ve seen the signs in front of businesses with a man’s picture and full name, captioned ‘Thief!’?
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