Criminal Theft vs. Civil Theft

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 What Is Theft?

While states use technically different definitions of theft, theft is generally defined as intentionally removing or otherwise taking control or possessing another person’s property without their consent or permission. “Theft” and “larceny” are both used to describe taking someone else’s property.

There are different types of theft. They fall into two broad categories: misdemeanor theft and felony theft. Misdemeanors are not punished as severely as felonies, so defendants hope that when the court determines the value of whatever they took, it will be low.

Some examples of minor, misdemeanor theft include shoplifting items of low value, like music CDs or clothes. This is often classified as petty theft. Most commonly, the stolen material’s dollar value must be less than $500 or $1,000 to qualify for misdemeanor treatment. (The amount varies by state.)

Some examples of more serious theft include stealing high-value jewelry, a large sum of cash, or a car. Stealing more valuable property like this is often called grand theft or larceny. These are felony offenses.

There are also certain types of theft where the defendant may have initially received the property legally but later developed a criminal intent to keep it unlawfully. This scenario is known as constructive theft. A good example is embezzlement.

Another example of theft that is different from the usual methods is “theft of lost or mislaid property:” Theft of lost or mislaid property occurs when a person finds property that they know belongs to someone else and keeps it without attempting to return it.

In addition to dollar amounts, many states consider the method by which the property was taken when determining whether the theft is a misdemeanor or a felony. If the property was taken directly from a person (as opposed to an empty home or a store) or includes incendiary devices, explosives, or firearms, the crime immediately elevates to a felony.

What Does the Law Consider “Property”?

An essential element of any theft crime is the unlawful taking away property. “Property” is defined broadly under criminal laws, including moveable property and immovable property. Some examples of property that may be unlawfully taken away include, but are not limited to:

  • Real property, or things that cannot be moved, such as land and things attached to the land;
  • Tangible (moveable) property, such as cash, jewelry, computers, and cars
  • Intellectual property, such as copyrights, patents, trade secrets, and trademarks
  • Documents, such as certificates, bonds, titles to property, and checks
  • Information that may include a person’s identifying data
  • Personal services, such as service at a restaurant
  • Identity theft

How Is Criminal Theft Different From Civil Theft?

Criminal theft is a general term that refers to several crimes involving taking away or controlling property without the owner’s consent. The state prosecutes these crimes, and if found guilty, a person could receive punishment consisting of fines, prison time, or community service. Some of the different types of criminal theft are described above.

On the other hand, civil theft is not a crime but rather a “tort.” Torts are wrongful acts or infringements of rights that result in civil liability. Tort laws allow individuals to sue others or companies to obtain compensation for injuries or harm they suffered. Whereas criminal theft is prosecuted by the state, in a case of civil theft, any injured citizen may file a lawsuit for a tort.

A person guilty of civil theft cannot be sentenced to prison for their actions. Rather, the injured party, or plaintiff, will file a lawsuit in a civil court to recover the stolen property or its monetary value. If the accused, or defendant, is found liable for the theft, they will be ordered to return the property or pay the plaintiff for the loss (whether permanent or temporary).

The state has the burden of proof in criminal cases. The state is responsible for proving beyond a reasonable doubt that the defendant committed theft. However, in a civil trial, the plaintiff only needs to prove that the defendant is liable by a “preponderance of evidence,” which means that the plaintiff’s evidence is stronger than the defendant’s evidence or defense. Simply put, the plaintiff must show that it is likely that the defendant committed the theft. This lower civil standard means it is easier to win a civil suit than to win a criminal trial.

What Are the Penalties for Criminal Theft?

Penalties for criminal theft depend on several factors, including:

  • The value of the property that was stolen
  • Whether a weapon or threat of force was used
  • Whether the victim was injured
  • Whether the defendant acted maliciously or not
  • Whether the defendant is remorseful

Shoplifting from a department store would be penalized very differently than an armed robbery of the same store.

The largest factor in determining the type of punishment is whether the theft was a misdemeanor or a felony, as discussed above. For a misdemeanor, the maximum institutional punishment is less than a year. Instead of a jail term, or in addition to it, the court may also punish the defendant by ordering them to pay a minor fine of up to a specific amount (often $5,0000), to be on probation, to make restitution to the victim (that is, pay them back), or to do unpaid work in the community (such as cleaning up litter along the road). Individuals sentenced to incarceration for a misdemeanor usually serve that time in the county jail, as opposed to a state or federal prison.

In contrast, if the defendant is convicted of felony theft, they will face legal consequences, including much higher fines and prison sentences that last for a year or longer. Felony sentences are served in state or federal prison, not jail. More serious felony theft charges (e.g., grand theft auto) may result in longer prison sentences, lasting between 5 to 15 years.

Are There Defenses to a Charge of Theft?

Each specific type of theft has its own elements that must be proven for a defendant to be found guilty of theft. Most crimes require that the prosecution shows that the accused intended to commit the crime or intended for the victim to be injured. If the prosecution cannot prove the defendant had the required criminal intent, a potential defense would be that the prosecution has failed to satisfy their burden of proof.

Other common defenses to other crimes may be applied to theft charges. Some examples include intoxication (rendering the defendant unable to form intent), permission (the defendant had permission to take the item(s) or thought they did), and entrapment (the defendant only committed the theft because a police officer told them to do it).

Do I Need an Attorney for Theft Crimes?

If you are accused of theft, you should immediately consult with a skilled and knowledgeable local criminal defense attorney in your area. An experienced criminal defense attorney can help you understand your state’s laws regarding theft violations.

The attorney will also help determine any defenses you could put forth and will represent you in court if you are charged with the crime. An experienced attorney can also help you file an appeal if something unconstitutional is done during the trial.


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