Flaw in the system? Why 70-year-old is facing 7 years in prison for alleged candy bar theft

Harper Ho
York Dispatch
Blaine C. Hildebrand was charged with retail theft in 1993 and 2012, which was why his most recent shoplifting charge was considered a felony, according to court documents.

A 70-year-old Jackson Township man is facing seven years in prison after he allegedly shoplifted a $2.19 candy bar —  and the ACLU says the case highlights flaws in Pennsylvania's criminal justice system.

Blaine C. Hildebrand pocketed a Snickers bar from a West Manchester Township Rutter's store in January, police said. He is charged with third-degree felony retail theft, which could result in 3½ to seven years in prison and a fine of up to $15,000, according to the state crime code. 

The punishment doesn't fit the crime, said ACLU of Pennsylvania criminal justice policy lawyer Nyssa Taylor.

"There is no reason that a 70-year-old man should be facing seven years in jail for stealing a candy bar. And yet that is what our Legislature has continued to do," Taylor said. "This is one of the things that we have really been pushing the Legislature to change and to stop allowing." 

Pennsylvania law allows prosecutors to charge people with a felony for shoplifting small amounts such as candy if they've been twice convicted of retail theft.

Retail thefts are generally misdemeanors or summary offenses. However, if the accused has accumulated two of these low-level shoplifting convictions, then a third escalates to a felony.

In other words, retail theft is an automatic third-degree felony if it's on the third or subsequent offense, regardless of the value of the merchandise taken, according to the statue.

Blaine C. Hildebrand

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Hildebrand was charged with retail theft in 1993 and 2012, which was why his most recent shoplifting charge was considered a felony, police said.

It isn't right, but that's what's been allowed because of decades of expansion in the state's crime code, said Taylor, the ACLU attorney.

"Every year we see new crimes being added. We see new charges, grading being increased, the severity of sentences," she said. "It's sort of a nonstop train. And this causes so much harm."

Such punishments for nonviolent offenders not only lead to mass incarceration but are also unfair because they target specific demographics, Taylor said.

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"Retail theft or shoplifting is often the result of poverty. Often people who are shoplifters are hungry, can't afford to buy what they may need to eat. It can also be and frequently is the result of substance abuse," she said. "Even if this man is put on probation, that too is another way in which people get (shuffled) back into the criminal justice system." 

A breakdown of the crime code shows retail theft of less than $150 is a summary offense the first time. Retail theft of less than $150 then becomes a second-degree misdemeanor the second time. Retail theft is a first-degree misdemeanor when it's a first or second offense and the value of the merchandise is $150 or more.

After two of these theft of goods convictions, the third shoplifting offense is an automatic third-degree felony. For comparison, retail theft is also a third-degree felony if the crime involves taking more than $1,000 of merchandise or a vehicle or a firearm, according to the statute.

York County District Attorney's Office spokesperson Kyle King said prosecutors can't comment on active cases.

However, he did note the crime code section in question is a recidivist provision, meaning prior offenses for retail theft on a person's record impact gradation from summary offenses to misdemeanors and finally felonies.

The charge draws in all of a defendant's prior convictions for shoplifting, even if those charges were nearly 30 years ago, which is the case with Hildebrand.

Hildebrand was sentenced to two years probation in 2012 for a misdemeanor retail theft charge in York County. He was ordered to pay court fines and receive a mental health evaluation and treatment as well as perform 25 hours of community service, according to court records.

King said it appears Hildebrand's 1993 charge resulted in an Accelerated Rehabilitative Disposition program, which allows first-time nonviolent offenders to avoid possible conviction and criminal records by successfully completing a set of court-ordered requirements

Hildebrand, of the 5000 block of Lincoln Highway, couldn't be reached for comments. Family members declined to comment but said he did do two weeks of community service in his 1993 case — mowing lawns and picking up trash, Monday through Friday from morning to afternoon.

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Successful completion of this diversion program should result in the charge being expunged, which means it doesn't count against a person's record because there should be no conviction associated with the offense, Taylor said.

This would make Hildebrand's most recent shoplifting charge his second, rather than third, offense. Regardless, defendants like Hildebrand would be better served by rehabilitation, rather than prison, if convicted, Taylor said.

No other specific details are available on Hildebrand's 1993 case, which is not listed in York County online court records, King said.

Hildebrand's family said he does not have an attorney. 

— Reach Harper Ho at hho@yorkdispatch.com or via Twitter at @howdyhoharper.