Hacker News Reader

> with the implied threat of criminal prosecution without the actual threat.

I wonder how much difference this really makes. A stronly implied threat might be just as much a threat as an actal threat.

Law isn't maths, after all.

They can go pretty far with it. I've seen attorneys actually say "if you don't pay us, we will file a lawsuit detailing all of your illegal actions, and that will be a matter of public record that may open you up to other kinds of actions by various agencies". In that instance, the person being threatened filed a police report for extortion against the attorney involved, and...it went nowhere. So they can get their point across and the law seems to be OK with it.

This might be just a case where the law hasn't caught up with what the lawyers are doing.

Extortion is "Pay me ${X} or I do ${Y}".

"Pay me $10,000 or I release these naughty images of you on the internet." is extortion.

"Pay me $1,000, or I will foreclose on your property" is not, because likely you signed a contract agreeing to such a scenario.

Now "Pay me $500, or I'll file a police report..." is extortion (at least according to here: https://criminal-law.freeadvice.com/criminal-law/violent_cri... )

Even though you may have broken the law, the extortion of money to prevent the police report is still illegal.

This would be up to the discretion of the judge however the way you word it matters. Legally there is a difference between a threat and an implied threat. Saying "pay us or we report you" is extortion. Saying "pay us and we may in good faith drop this matter" is now vague enough to not be interpreted as extortion.

Hey, the cool part about this is, we can try it out in different scenarios.

"Hello, this is LargeISPCo calling to ask you to pay your latest bill. Oh, in an entirely unrelated matter, we found this picture of your son, and we have a link to a discussion board for NAMBLA."

See, perfectly fine. There's no _actual_ threat here.

I'm not sure this is textbook extortion. Walmart is within its rights to press charges. They're simply giving the accused a chance to settle outside of the criminal justice system. IANAL though, and it may vary a lot by state. Bear in mind though, the stores usually have good security cam footage when they nab you.

"We'll reveal incriminating information to the police unless you pay us $500 and perform this service," is pretty textbook blackmail. The law often doesn't make any distinction about the type of action because it relies on prosecutorial discretion for that.

The problem is that they aren't involving the courts. Specifically, there's no trial or court proceedings to determine the facts of the case or to ensure that the offender's rights are being protected. The offender doesn't get the right to an attorney. They aren't guaranteed to know all the evidence against themselves. There's no way to know that a given Walmart store isn't blackmailing it's customers.

If Walmart started a nationwide program which provided these services to any shoplifter as an alternative program that a judge could sentence the offender to or that a prosecutor could recommend, it would be perfectly fine and may have the same effect in reducing recidivism for shoplifting at Walmart and other stores. The problem is that it's all taking place behind closed doors, so there's no way to know that it's not blackmail. It's not even necessarily in the best interest of the general pubic. It means that people who shoplift aren't being tracked, meaning when they do re-offend and get caught they appear to be first time offenders to the state.

Furthermore, there's no way to know what criteria Walmart is using for this program. Even ignoring the fact that at $500 it's a get-out-of-jail-free card is only for middle class and upper class individuals, what if Walmart only offers the program to whites or women but always prosecutes blacks, Hispanics, and homosexuals?

In reality, if we want first time offenders to get lesser charges or face lesser punishment, then we need to change the actual law and reduce the actual punishment for the crime. If the law is unfair, the answer is to change the law, not to find ways around it. This is the exact same reason the police argument against body cameras -- lack of police discretion -- is bullshit. If the laws are unjust or don't best serve the public, the answer isn't to allow uneven enforcement. That just leads to abuse!

Take Walmart out of the equation for a second. Let's say an 18 year old breaks into an old man's house to perform some routine youth mischief, and in the process trips and breaks his leg. The old man catches him. He has a choice: call the cops and report a break-in, giving the kid a record, or sternly rebuke the lad and tell him that if he fixes the damage he caused and comes back to perform some other maintenance on his house, a little painting and power washing, mowing the grass for a bit, he'll accept the guy means well and just write it off what happened as a wayward joke.

Because what's really at stake here is that this crime is defined by acting against the victim's consent over his property. It's not that Walmart (or the old man) is empowered to dispense criminal justice; it's that the prosecution need the property owner to confirm on record that there was a violation of property in order to have any case at all.

Ok, and what if the man says, "And pay me $10." Is that blackmail? What about $100? $1,000? $10,000? Or what's to stop the man from continuing to demand additional services? Or lying and pressing charges on the kid after the fact? What if it's a 17 year old kid? 14? 10?

You see that there's a line here that isn't obvious between, "I'll decline to press charges if you do me a small favor," and, "I'm going to blackmail you." That's why the law doesn't make a distinction.

Assuming that the victim of an attempted burglary or attempted shoplifting is going to be magnanimous and reasonable when they've just been victimized is not at all a safe assumption.

IANAL. But no, I suspect it does not count as blackmail. The man is within his rights to press charges. But once the kid comes back to the house and does extra work, it'd be pretty obvious to the authorities that there some sort of verbal agreement to settle the matter if the old man tries to renege and press charges, even if not a written one. I also suspect that a number of people caught in the actual situation at hand with Walmart have had some lawyers among their friends and family whom they thought they might question about a blackmail angle, and the fact that Walmart has kept up his policy is likely evidence that it's been tried and failed. Shopkeeper's Privilege[0] and its related proceedings is actually a pretty interesting corner of the law.

[0]https://definitions.uslegal.com/s/shopkeepers-privilege/

>IANAL. But no, I suspect it does not count as blackmail.

California Superior Court Judge Harold Kahn is a lawyer and says it is extortion (at least under California law).

> the fact that Walmart has kept up his policy

Walmart has not maintained the policy. Joe Schrauder, the retailer’s new vice president of asset protection and safety has removed this program from all Walmart stores.

They can't say "pay us or we will report you to the police," because that is textbook extortion.

Would it still be extortion if they said "pay us the exact value of the goods you tried to steal"?

Yes.

Tried to steal but didn't steal?

If you're caught drilling a safe at a bank, the thieves don't get to say: "But we hadn't gotten to the money, gold or certificates in there yet".

And yet if you get caught robbing a bank and don't take any money, you won't have to pay restituion for the money you were trying to steal. Yet if you get caught after robbing a bank, you are usually required to return the money that was stolen.

Thus Walmart receiving "restitution" when nothing was actually taken from them doesn't make sense and is still extortion.

>I also find it ironic and somewhat disturbing that prosecutors are mentioned throughout the article essentially saying that the State should have a monopoly on extortion because of the legal protections afforded to criminal defendants.

What article are you reading?

Only one current prosecutor is mentioned who states an opinion on the program, and he says: “The justice system should never be a profit system.”

The second mentioned prosecutor doesn't have any quotes, but did sue Corrective Education for extortion and false imprisonment.

The third mentioned (former) prosecutor is the founder of one of the companies.

Your statement is pretty blatantly false.

The one government official who does (explicitly) say that the State should have a monopoly on extortion is California Superior Court Judge Harold Kahn, who issued the injunction against Corrective Education.

You're being pedantic, but you kind of made my point for me. As you point out in great detail, all of these prosecutors object to private companies doing what they do in the name of the State every single day (extort people). Some of them are acting on the objection by suing the program, others are quoted speaking out against it, etc.

"all of these prosecutors object to private companies doing what they do in the name of the State every single day (extort people)."

That's not even close to a valid description of what they do.

What they do is tell people that if they don’t admit to a lesser crime and accept its punishment they’ll be charged with a greater crime that carries a mandatory minimum sentence of a much longer period of time.

Given that innocence or guilt doesn’t enter into that equation at all, it sounds very much like textbook extortion.

No. Again, you are completely mischaracterizing what they do. It is clear you are not interested in a good faith discussion on the topic, and would rather just rant about government. Feel free, but I won't partake.

It's actually a pretty accurate description of pretty typical prosecutor behavior. The prosecutors can use not only threats of charges that cary life-time sentences, they can also threaten charges that cary the death penalty and charges against the suspect's family and friends. All of that is legal. These plea deals can be time limited so that the suspect and their lawyer have to decide on the deal prior to going through any sort of discovery to even know what the evidence against them is.

Whether you call what is done by many prosecutors "extortion" is pointless semantics and doesn't really bear on the article. However the process of offering and negotiating plea deals is in need of a great deal of reform. There are proposals of Judge oversight of the plea process, providing faster bench trials, and more funding for the legal system so that trials can be processed faster.

see: https://www.theatlantic.com/politics/archive/2017/05/plea-ba...