Jim Dey | Will case of 'Jones burglary' settle old dispute?

Jim Dey | Will case of 'Jones burglary' settle old dispute?

A legal dispute that was often the subject of vehement disagreement at the weekly lawyers' lunch in Urbana is expected to be resolved soon by the Illinois Supreme Court.

High court justices Tuesday heard pro and con arguments about the so-called "Jones burglary," an offense commonly thought of as shoplifting but sometimes upgraded to and prosecuted as the more serious charge of burglary.

The "Jones burglary" is named for retired Champaign County Circuit Judge Michael Jones.

Before he ascended to the bench, Jones was a defense lawyer who routinely and enthusiastically challenged the legal validity of charging a defendant with burglary for shoplifting. Other lunching lawyers, who love nothing more than a good argument, took up the other side of the issue, and the fight was on.

The battles reached such a fevered degree that Jones' antagonists labeled the charge to which he took such exception as "Jones burglaries." The addition to the legal lexicon has since been memorialized in appellate court opinions written by Justice Robert Steigmann, a lawyers' lunch regular.

Current law, for the most part, supports the concept of a "Jones burglary." But a recent decision by the 3rd District Appellate Court in Ottawa strikes it down, leaving the seven-member Illinois Supreme Court to settle the issue.

The case at issue involves a thief named Johnson. He was arrested for stealing about $80 in merchandise from a Walmart in the Whiteside County community of Rock Falls.

Witnesses said Johnson was one of two men who entered the Walmart in July 2014 and walked the aisles stuffing children's clothing inside their shirts. After taking what he wanted, Johnson left the store and transferred the stolen property to a backpack he had left outside the store.

He was charged with burglary and retail theft. Convicted of burglary, Johnson was sentenced to eight years in prison because of his significant prior criminal record.

Here's the definition of burglary: "A person commits burglary when without authority he or she knowingly enters or without authority remains within a building ... with the intent to commit therein a felony or theft."

Since shoplifters invariably enter stores or remain within stores with the intent to steal, the charge appears to fit. But using semantics, the retail-theft statute and a recent Supreme Court decision, Johnson's lawyers fashioned a winning argument.

Johnson didn't deny the thefts, but he argued instead that he was not guilty of burglary because "he entered and exited the store during business hours and remained in designated public areas."

In other words, while Johnson did not have the authority to steal, he had the authority to enter the store before stealing. So while he could be charged with theft, he argues, the burglary charge does not apply to him.

Prosecutors defend the burglary charge by relying on the "limited-authority doctrine," which holds that "one's otherwise valid authority to be in certain premises is vitiated when the individual acts in a manner inconsistent with the authority originally granted."

In other words, a law-abiding person has the authority to enter, but a thief looking to strike forfeits it.

If that sounds dispositive, it's not.

The "limited authority doctrine" was enshrined in law before the Legislature passed the retail-theft statute in 1975. Then there is the 2016 Illinois Supreme Court decision in People vs. Bradford in which the high court reversed a burglary conviction involving a shoplifter who had "remained within" a store before stealing.

The high court said it "strains logic to presume that the Legislature intended most incidents of retail theft to be prosecuted as burglaries."

Relying on that logic, the 3rd District overturned Johnson's conviction.

Writing for a unanimous three-judge panel, Justice Daniel Schmidt complained that prosecutors should not have the discretion to "charge and convict a first-time offender who enters a store with intent to steal a candy bar with burglary, a felony, or retail theft, a misdemeanor."

Schmidt contended the retail theft statute "occupies the field of shoplifting crimes," while burglary "aims to punish circumstances where a trespass and unwelcomed criminal intent combine to harm the victim more than either individual crime: The whole is greater than the sum of its parts."

Jones, arguing against the efficacy of a "Jones burglary," could not have said it better himself. Now, let's see what the Supremes have to say about it.

Jim Dey, a member of The News-Gazette staff, can be reached at jdey@news-gazette.com or 217-351-5369.

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