LOUISVILLE, Ky. — When Chastity Shirley shopped at Walmart’s Somerset, Kentucky, store one day in 2018, she pulled what retailers call a "switcheroo."
She switched the bar codes from a toothbrush holder with those from a more expensive children's rug and slipcover and checked herself out of the store.
She was caught red-handed by a loss-control associate who was watching her.
The cost difference between the item she paid for and the two she tried to take — $80.80.
But instead of charging her with misdemeanor theft — standard for shoplifting crimes of less than $500 — a Pulaski County prosecutor persuaded a grand jury to indict Shirley for "unlawful access to a computer."
The prosecution and Walmart contended that when Shirley misled the self-checkout scanners, she was tapping unlawfully into the sophisticated computer system connected to them.
The offense was a felony punishable by five to 10 years in prison.
A jury found Shirley guilty, but the Kentucky Court of Appeals reversed her conviction, saying it would be "inherently unfair to convict somebody of a class C felony for theft of goods worth $80."
The appeals court also said the crime didn’t meet the statute’s definition — using a computer without its owner's "effective consent."
Shirley, and millions of other Walmart customers — have the retail giant’s permission to use its self-checkout scanners to pay for merchandise, the appeals court reasoned.
On Wednesday, however, Attorney General Daniel Cameron’s office will ask the Kentucky Supreme Court to reinstate Shirley’s conviction — lining up behind retailers eager to stem a burgeoning form of crime.
The hitman chronicles: 9 cases of murder for hire in Kentucky and Southern Indiana
The 'banana trick' and other self-checkout theft
Self-checkout theft has become so common that a whole new lexicon has sprung up to describe it.
Ringing up a $13.99 T-bone steak as if it was produce priced at 49 cents per pound, for example, is known as the “banana trick."
Sticking an expensive item in your basket without scanning it at all is called the "pass around."
One study found shoppers are four times more likely to steal from a self-check terminal than a human cashier because it provides the illusion of anonymity — and it is so easy.
"Most of us feel ashamed at getting caught by a fellow human trying to steal something," Shadd Maruna, a professor of criminality at Queens University in Belfast, said in an email. "Removing the human eyes and replacing them with technology makes the process seem less shameful."
In one survey conducted by a coupon company of 2,634 shoppers, nearly 20% admitted to having stolen at a self-checkout — half said it was because detection was so unlikely.
Why shoppers feel justified ripping off self-checkout machines
Experts such as Christopher Andrews, an assistant professor of sociology at New Jersey’s Drew University, an author of "The Overworked Consumer: Self-Checkouts, Supermarkets, and the Do-It-Yourself Economy," say shoppers feel justified because retailers are using the devices to eliminate jobs.
Others consumers persuade themselves they deserve one or two items for free because they have to bag their own purchases and check out themselves.
“Anyone who pays for more than half of their stuff at a self-checkout is a total moron,” wrote one shopper on reddit, according to 2018 story in The Atlantic headlined, "The banana trick and other acts of self-checkout thievery."
Yet despite losing millions of dollars to what retailers call “external shrinkage,” they have embraced the machines because they eliminate the cost of cashiers.
Unlike humans, the devices are never late for work and don’t call in sick.
Walmart now rings up more than half its sales in the United States at the terminals, according to Newsweek.
Called for jury duty? Here's what you can and can't do, and how you can get out of serving
Throwing the book at self-checkout thieves
Walmart Media Relations didn’t respond to a question about whether the $347 billion company has asked Kentucky prosecutors to charge self-checkout shoplifters with the more serious crime of unlawful access to a computer.
Pulaski Commonwealth’s Attorney David Dalton also refused to say if it prosecuted Chastity Shirley, 34, for that offense at Walmart’s behest.
At her 2019 trial, Shirley’s public defender contended the charge should have been dismissed because Walmart had consented to her use of its computer — even though she used it to steal.
But Pulaski Circuit Judge David Tapp ridiculed that argument.
Did Walmart really "give consent for somebody to scan a bar code for a toothbrush instead of a rug?" he asked. "Because if so, I’ve had my eyes on a .410-gauge squirrel shotgun. Can I go down" to the store "and put a toothbrush bar code on that?”
A jury found Shirley guilty and former Supreme Court Justice Daniel Venters, who was assigned to the case as a special judge when Tapp was named to the U.S. Court of Claims, refused to dismiss the verdict.
But recognizing the punishment was too severe for the crime, he suspended her five-year sentence on the condition she commit no further crimes for 30 days.
Still, she would have been left with a felony conviction on her record for life, and she decided to appeal.
Shoplifter or computer hacker?
The case is the first in which a Kentucky appeals court will decide if prosecuting a shoplifter for a computer offense is justified.
In a brief for the commonwealth, Assistant Solicitor General Michael Wajda says prosecuting Shirley under that statute is perfectly appropriate.
While Walmart consents to customers using its self-checkout terminals, he says, it does not consent to swapping bar codes or using its computers to steal.
And he says the courts must follow the law as written by the legislature — even if they don’t like the result.
The law says a person is guilty of unlawful access to a computer “when he or she, without the effective consent” of the owner, devises or executes “any scheme or artifice to defraud."
Elizabeth Kuhn, a spokeswoman for Cameron's office, said if the Court of Appeals ruling stands, circuit courts will be bound by precedent and have no choice but to find that retailers gave consent to misused self-check scanners.
She also noted the jury found the prosecution had proved every element of the crime of unlawful access to a computer.
A felony over a 'paltry sum'?
But Shirley’s attorney, Assistant Public Advocate Steven Buck, says in his brief that in pursuing a felony conviction for a "petty theft" of a "paltry sum," Cameron’s office and the Pulaski commonwealth’s attorneys have "abandoned both common sense and empathy."
He also says both offices have neglected a prosecutor’s overriding duty — to do justice.
And quoting the Court of Appeals decision, he said, "When all else is said and done, common sense must not be a stranger in the house of the law."
Elaborating in an email, Buck called the prosecution “an extreme example of government overreach” that will create “a new class of felons that our prison system can’t accommodate and that our economy will not employ."
He also said Kentucky has statutes in place that punish shoplifters and provide restitution to their victims.
"I do not understand why the attorney general is using its discretionary powers for this purpose,” he said.
Common self-checkout schemes
Swapping barcodes on items.
Scanning more expensive fruit and vegetables as lower-cost varieties.
Not scanning an item and placing it in an already packed bag.
This article originally appeared on Louisville Courier Journal: Should shoplifting at self-checkout be a felony? Why some AGs say yes