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March 29, 2021, 3:01 p.m. ET
The New York Times
The United States has made some progress in reducing
the shockingly large share of the population that lives behind bars, mostly by
dialing back the War on Drugs. Building on this progress requires similar
changes in the treatment of nonviolent property crime.
In New York, as in many other states, stealing more than $1,000 is a felony. A
person who grabs a new iPhone can end up in prison, at public expense, for four
years.
In New Jersey, which has the most stringent standard in the United States, a
person can be convicted of a felony for stealing more than $200 — a number that
hasn’t changed since 1978.
Treating what amounts to petty theft as a felony is draconian. In American
society, it is difficult to recover from a felony conviction. It is hard to find
work, hard to find housing, hard to rebuild a life. Incarceration is also
expensive and ineffective. New York spends about $60,000 per prisoner per year,
but there is little evidence the punishment deters the crime.
In a 2016 analysis, researchers at the Pew Charitable Trusts looked at 30 states
that increased felony theft thresholds between 2000 and 2012. Property theft
rates fell nationwide during that period; the study found no evidence that the
decline was any slower in those states. The analysis also found no relationship
between the level of the threshold and the level of property crime. States that
set thresholds at a relatively high level, like $2,000, did not experience more
property crime than states that set thresholds at a relatively low level, like
$500.
Brian Benjamin, a state senator from New York City, sees a clear lesson in that
experience. He plans to introduce legislation to raise the state’s felony theft
threshold to $5,000. With a few exceptions, thefts of lesser value would instead
be misdemeanors. Offenders would be punished, but the path to rehabilitation
would remain relatively clear. (Any robbery, meaning theft by force, would
remain a felony. The proposal is focused on nonviolent crime.)
“We want a system that penalizes people but doesn’t destroy their lives,” he
said.
New York is among a small number of states that have not updated felony theft
thresholds in recent decades. But the legislation isn’t just about catching up.
It would break ground.
The $5,000 threshold would be the highest in the nation. It would be twice as
high as in the next highest states, Wisconsin and Texas, where the threshold is
$2,500. But it still may not be high enough. While states have moved thresholds
upward in recent decades, they have erred on the side of caution. In a 2016
report, the Brennan Center for Justice at New York University estimated that
45,000 Americans were behind bars for thefts of less than $10,000. It argued
that their incarceration was not in the public interest and that people
convicted of such thefts instead should be fined and required to make
restitution or perform community service.
Since 2009, Florida has allowed some people charged with low-value theft to stay
out of prison by agreeing to conditions such as state supervision, drug testing,
participation in community service and making restitution to victims. A 2019
state analysis concluded that participants were less likely to steal again than
those convicted of theft who served time in prison.
Under Mr. Benjamin’s legislation, New York would be the only state to index
felony theft thresholds to inflation. Stealing $1,000 today is the rough
equivalent of stealing $500 three decades ago. New York’s inaction in leaving
its standard unchanged in nominal terms has made that standard more draconian
over time. To prevent this kind of slippage, the state would review the
threshold every five years and make adjustments in increments of $50. For
example, if inflation averaged 2 percent a year over the period, the threshold
would rise to $5,500.
Inflation adjustment is basic housekeeping. It makes little sense to allow
inflation to erode legal standards. Everyone understands the need to adjust tax
brackets and Social Security benefits for inflation. The same rationale applies
to adjusting felony theft thresholds.
New York in recent decades has been at the forefront of the national effort to
reduce prison populations. State leaders have recognized that the social and
economic costs of incarceration are high and are borne disproportionately by
minority communities and that many prisoners pose no real risk to public safety.
Between 1999 and 2020, New York’s prison population declined by 47 percent. The
state has reduced the severity of punishments for nonviolent drug crimes. It has
reformed bail rules so that fewer people are jailed before trial, and it is
considering necessary reforms to its parole system. New York imprisons more
people for technical parole violations than any other state.
But none of these changes go far enough. New York’s incarceration rate remains
high, both by historical standards and by comparison with the rest of the
developed world, because New York continues to use prison as the default
punishment for too many crimes. The state can set an example for the rest of the
nation by adopting a more sensible approach to property crime.
