By Paul H. Robinson & Jeffrey Seaman
Monday, June 24,
2024
In San Francisco, a would-be thief stabs an elderly
storeowner. In Philadelphia, a young black man bleeds out on the street. In
California, an illegal immigrant released from jail goes on a killing spree.
These three snapshots of tragedy share a common, preventable cause—progressive
reforms that de facto decriminalised crime. America is
increasingly suffering from under-criminalisation—a problem caused
by reformers refusing to punish conduct the community views as criminal. The
problem isn’t that some reformers want more lenient or rehabilitative
punishment for crime, but rather that a progressive elite appears to be
comfortable ignoring public views about what behaviour should be punished at
all. Under-criminalisation isn’t just a democracy problem—it also contributes
to America’s increasing crime rates and a sense of lawlessness that has made
crime a top concern among voters. The solution is completely non-partisan: make
sure the criminal law and its enforcement reflect community views—not those of
an elite minority.
In order to stop under-criminalisation, we need to
understand how it takes place in a democratic government. De facto decriminalisation
policies can fail to represent community views even when they are enacted by
referendums, legislation, or elected prosecutors. Consider California’s de
facto decriminalisation of theft under $950 that resulted from Proposition
47—a referendum passed by 59 percent of California voters in November 2014. How
could Proposition 47’s effect possibly be considered contrary to community
views? The answer is that voters were not told what the consequences of the
policy change would be.
Proposition 47 was campaigned for by progressive
activists under the misleading title: “The Safe Neighborhoods and Schools Act.”
The Proposition downgraded six different felony theft crimes to misdemeanours
where the value of the stolen property is $950 or less. Theft wasn’t being
overtly legalised. What voters were not told is that the downgrading
effectively prevented police from prosecuting these crimes as California’s
existing law prohibited
custodial arrest for most misdemeanours. Police could only issue a written
citation, as if a $950 theft were a traffic violation. While stealing under
$950 was technically still a crime, it was de facto decriminalised
because it was no longer conduct that could lead to arrest and punishment. In
practice, the worst that might happen to a thief was collecting unpaid parking
tickets. Of course, this was hardly clear to the 59 percent of voters who
pulled the lever for “The Safe Neighborhoods and Schools Act.”
The consequences of this de facto decriminalisation
soon became apparent. Larceny surged across the state. Many storeowners didn’t
even bother reporting the thefts because police could do nothing. Shoplifters
quickly came to see stealing as their right. As one shoplifter caught red-handed
by a reporter explained:
“It’s San Francisco, Bro.” With police unable to lock up thieves, stores moved
to lock up goods. First, more expensive items were locked up behind ubiquitous
glass cabinets, until one San Francisco Walgreens even resorted to chaining up
the freezer section in a desperate move to stave off economic collapse.
But locking up cosmetics and ice cream is a poor
substitute for legal protection, and many stores have sunk in the storm of
theft. For example, 50 percent of stores in downtown San Francisco have closed,
with many citing theft as the primary reason. Some desperate storeowners, their
livelihoods on the line, have fought back, with life-threatening consequences.
On 2 June 2021, 72-year-old San Francisco storeowner Peter Yohannes tried to
remove a would-be thief from his shop only to be nearly stabbed to death and
lose an eye. This is not what Californians voted for in 2014, but it was what
they got due to progressive reformers’ false advertising campaign.
The drafters of Proposition 47 could be forgiven if their
only crime was short-sightedness, but the truth is much worse, as shown by the
fact progressive reformers refuse to acknowledge the negative consequences of
their de facto decriminalisation. In their minds, the decriminalisation
was a massive success at keeping offenders out of prison—even though the price
to society was allowing theft to flourish. Some progressive reformers
undoubtedly view the supposed moral evil of imprisoning thieves as greater than
the societal cost of rampant theft. But even California’s left-leaning public
does not agree. A 2022 poll found
that 59 percent of California voters now support backtracking on
Proposition 47 to reinstate many property crimes as felonies, while only 30
percent support leaving the law intact.
A bipartisan ballot initiative, “The Homelessness, Drug
Addiction, and Theft Reduction Act,” has gained
the signatures necessary to allow voters to alter Proposition 47 directly
at the ballot box in November 2024. It looks like after ten years of
payment-free shopping, it may be time for California thieves to pack up their
bags and follow fleeing business owners to other states. The sorry story of
Proposition 47 isn’t just that refusing to punish crime increases it, but also
that voters sometimes vote for policies with consequences that do not reflect
their actual preferences. Part of the blame does lie with voters, but a larger
share rests with well-educated reformers who are happy to exploit partisan
voting blocks to pass policies that a majority of the community would never
support if they understood their effects. Such policymaking is anti-democratic
to the core, even while it games the democratic process.
Another way that de facto decriminalisation
contrary to community views can occur is when elected representatives fail to
do their job of representing the people in favour of scoring ideological
points. Consider how many “sanctuary” laws shield undocumented immigrants who commit
non-immigration crimes from federal prosecution and deportation. De facto
decriminalising illegal entry by criminals does not reflect community views.
Indeed, it arguably hurts undocumented communities themselves, but it is often
bundled by legislators alongside measures banning local police from asking
about immigration status—a reasonable part of sanctuary laws that might make
communities safer by encouraging undocumented immigrants to report crimes and
cooperate with police investigations.
Individual communities may differ about whether it is
appropriate to ban local police from asking about immigration status, but there
is wide public agreement that undocumented immigrants who commit additional
crimes should be handed over to federal authorities. Elite progressive
reformers take a different view. For example, in 2018, California became a
sanctuary state as state leaders promised to put a “kink” in the Trump
administration’s enforcement of federal immigration law. Despite polls showing
a majority of Californians believed local police should be allowed to hand over
undocumented criminals to ICE, California legislators banned local police from
honouring federal immigration detainers, which are requests for local police to
hold known undocumented immigrants, who have been arrested for a
non-immigration offence, until they can be transferred to ICE custody.
The consequences of this law soon became apparent. Take
just one example. On 13 December 2018, 36-year-old Gustavo Garcia, an
undocumented immigrant with a serious criminal record, who had been caught and
deported twice previously, was arrested for driving under the influence in
Tulare, California. ICE again issued a detainer, which the local sheriff
desperately wanted to honour because Garcia’s past record showed he was
dangerous. But under California’s new law, the sheriff was obliged to refuse
the ICE detainer and release Garcia. The next day, Garcia went on a rampage of
robbery, shooting, and murder, killing two people and seriously injuring at
least four others.
Of course, to elite progressives in Sacramento, a few
innocent Californians dying was a small price to pay for putting the largest
possible “kink” in immigration enforcement. But when the vast majority of
Americans, and even a majority of Californians, clearly oppose refusing to
punish criminal undocumented immigrants, how can such a move possibly be
justified on democratic grounds? A 2017 poll found
that an overwhelming 80 percent of voters believed local authorities should
be required to report undocumented immigrants to federal authorities. And a
2024 poll found
that 65 percent of Americans support deporting undocumented immigrants (one
can only imagine the likely higher support for deporting undocumented criminals).
Once again, progressive reformers show a disturbing anti-democratic preference
for ignoring public views in favour of their own minority opinion about what is
best. Such reformers appear to believe that illegal entry should never be
punished, even when committed by criminals, but legislators writing that view
into the state criminal code is a dereliction of their representative
duty.
But when it comes to dereliction of duty, the third way
that de facto decriminalisation occurs is the worst. Since
2015, a wave of progressive prosecutors have taken charge in some of America’s
largest cities and unilaterally decided to stop enforcing the law against
certain crimes. At least half of America’s largest prosecutorial districts,
covering some 72 million Americans, are
run by progressive prosecutors, who preside over cities such as Los
Angeles, Seattle, Chicago, Philadelphia, and New York City. Such prosecutors
typically promise voters to end over-punishment and reduce incarceration, while
shifting resources away from minor crimes to tackle serious crime more
effectively. Progressive prosecutors are also helped to power by only needing
to win pluralities in small-turnout democratic primaries—a task made even
simpler by large campaign contributions from progressive mega-donors.
Consider the case study of Philadelphia. In 2017, Larry
Krasner was
elected to the District Attorney’s office after winning the Democratic
primary with 38 percent of the vote. He immediately set about using his
discretion to effectively decriminalise certain crimes. With the goal of
keeping offenders out of prison, Krasner stopped prosecuting a host of what he
considered minor crimes, including most felony gun possession. The extent of
the policy was striking, with Krasner dismissing
65 percent of gun charges in 2021 compared with his predecessor’s 17
percent in 2015. The result was a surge in shootings as illegal guns and
illicit gun carrying proliferated. Arrests for gun crimes in Philadelphia
tripled, but the prosecution rate dropped
by 85 percent.
In 2021, Philadelphia recorded its highest
homicide count ever, with 562 people murdered in the City of Brotherly Love
and another 1,831 non-fatal shootings. But Krasner achieved his goal of keeping
offenders out of jail by logging the lowest number of felony prosecutions in
modern history, even as a controlled
study found his non-prosecution policies were responsible for 75 extra
murders a year between 2015 and 2019. Most of Philadelphia’s extra murder
victims are young minority men—killed in consequence of policies Krasner claims
promote “racial justice.” This irony was not lost on members of Philadelphia’s
black community. Former mayor Michael Nutter, who is black, wrote
that if Krasner “actually cared about [black and Latino communities],
he’d understand that the homicide crisis is what is plaguing us the
most.”
Even beyond gun crimes, Krasner dropped thousands of
winnable cases against clearly guilty criminals—choosing to prioritise low
prison populations over administering justice. Krasner’s de facto decriminalisation
of many crimes led to his unprecedented impeachment by the Pennsylvania House
of Representatives in 2022, although he is unlikely
to ever face trial in the state senate, which requires a two-thirds vote of
the chamber to convict. But the Pennsylvania legislature passed
a bill in 2023, signed by the state’s Democratic governor, to appoint a
special prosecutor for crimes that occur on or near Philadelphia’s public
transit system—a move made necessary by Krasner’s refusal to enforce the state
criminal code.
Krasner’s de facto decriminalisation
decisions also contributed
to the victory of Cherelle Parker in the Philadelphia Democratic
mayoral primary in May 2023, as Parker promised to hire hundreds of extra
police officers and crack down on the crime that has flourished on Krasner’s
watch. Crime was the top concern among Democratic voters, with the progressive
Krasner-aligned candidate, Helen Gym, finishing
third with 22 percent of the primary vote. While many progressive
prosecutors, including Krasner, have clung to power by exploiting partisanship
and the Democratic primary machine, others have been punished by voters for
failing to punish crime. Chesa Boudin was recalled from the San Francisco DA’s
office. Kim Gardner, St. Louis’s DA, resigned in disgrace before she could face
voters. Buta Biberaj was ousted in Loudon County, Virginia, after she decided
to de facto decriminalise domestic violence.
Krasner’s approach is hardly unique among progressive
prosecutors, and his de facto decriminalisation decisions should not be
considered foolish mistakes but rather the spearhead of a progressive
criminal-justice reform movement that ignores public views about what behaviour
deserves punishment. Consider the widespread de facto decriminalisation
of rioting in most of America’s major cities in 2020, where 90–95 percent of
riot-related cases were dropped by progressive prosecutors. Despite the
nationwide rioting costing
up to $2 billion and leading to many
deaths, progressive prosecutors across the country chose to ignore public
demands that rioting be punished, instead choosing to sympathise with what
Chicago’s DA Kim Foxx called the rioters’ “righteous anger.”
It is important to note that the problem with Krasner and
other progressive prosecutors like him is not a desire on their part to impose
more lenient punishments—it is their unilateral decision to impose no
punishment on whole swaths of crime and criminals that the community sees
as richly deserving punishment. A lenient punishment does far less damage to
deterrence and the moral credibility of the law than a de facto decriminalisation
where no punishment whatsoever is imposed and even the social stigma of a
criminal conviction is lacking. Social-science studies and history have shown
that when a gap opens between what the law punishes and what society believes should
be punished, people lose respect for the law and become more likely to violate
it.
Why do progressive prosecutors refuse to punish what
their constituents see as crime? The simplest explanation is that progressive
prosecutors see themselves as part of a moral minority, an enlightened vanguard
cooking a beautiful omelette one cracked egg at a time. That beautiful omelette
is a punishment-free society; the cracked eggs are the unfortunate crime
victims of said society. To some progressive elites, punishment is itself the
problem to be solved, and de facto decriminalising large swathes of
crime is a powerful tool toward eliminating punishment.
But the vast majority of people, liberal and conservative
alike, believe in the necessity of punishing crime even if they differ somewhat
in their conception of a just punishment. Many progressive prosecutors ignore
the views of both in favour of a postmodern conception in which just punishment
is state-sanctioned violence and criminal offenders are victims who deserve
only therapy and treatment. The motivation behind many de facto decriminalisations
contrary to community views is that social justice (as defined by elite
reformers) should be prioritised over what the public sees as individual
justice.
Opponents of such de facto decriminalisation
policies might be tempted to view them as one-off failed experiments, but such
policies represent a more dangerous threat. The fact that so many progressive
reformers are comfortable imposing their decriminalisation policies without
regard to community views demonstrates a deeply troubling anti-democratic
tendency. Ideology has swayed many progressive reformers to view most of the
public as benighted sheep who must be led by more enlightened shepherds with a
better understanding of what behaviour should be considered criminal and what
punishments, if any, should be imposed. Such a view is neither democratic nor
American. It is the first step on a slippery slope to justifying
authoritarianism in the name of enlightenment.
Avoiding under-criminalisation is simple: it merely
requires respecting community views on what should be a crime and enforcing the
law against such crimes. This is also the solution to over-criminalisation:
something should not be a crime unless the community believes it should be.
Ignoring community views is certainly not an exclusively progressive
phenomenon. The failure by many states legislatures to decriminalise private
marijuana use, despite a large majority of Americans no longer believing it should
be criminalised, is a case in point. The recent push by some conservative
activists to pass extreme abortion criminalisations unreflective of community
views is another. It is fine for progressives, conservatives, and everyone in
between to try to change community views on what should be considered criminal,
but it is not acceptable to change policy without first changing those
community views. Doing so merely makes the justice system less credible and
less effective while chipping away at the foundations of American democracy.
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