Democrats Champion Punitive Workarounds as Shopkeepers Languish | Opinion

With its spring budget negotiations in a second week of deadlock, the New York State Legislature is reportedly stalled over opposition to Governor Kathy Hochul's only proposed criminal justice reform measure. Faced with a far-left State Senate and Assembly, Hochul seeks only a modest tweak to New York's 2020 bail reform law—one which it seems may now pass in some form. But she and other moderate Democrats are conspicuously not pushing for changes to the 2020 Discovery and 2017 "Raise the Age" laws.

Whether driven by political expedience or sincere ideology, this disappointing budget cycle reveals a troubling trend. New York progressives, uncomfortable with amending the state's criminal justice "triumphs" of the past half-decade—yet under real pressure from working-class business owners and even Al Sharpton speaking for everyday consumers—are advocating for workarounds that are more draconian than the pre-reform laws. Rather than return to the straightforward approach of consistently prosecuting low-level offenses, Democrats are pushing for laws that turn these into more serious crimes—a move that turns the clock back on the compassion we show defendants.

This trend is epitomized by proposals to stem our statewide shoplifting crisis, which pioneering black business owner Deborah Koenigsberger characterized as "a jaw-dropping spike in theft incidents." Last year, New York City shoplifting complaints rose 45 percent over 2021, itself a record-breaking year, even amid a decrease in stores bothering to report thefts. In upstate cities like Rochester, law enforcement estimates at least 60 percent of shoplifts now go unreported.

Rattled, but reluctant to push back on publicly lauded statewide reforms, business groups and their allies have begun proposing alternatives. Collective Action to Protect our Stores, a consortium of over 4,000 NYC-area independent grocers, bodegas, and chains like KeyFood, along with several Democratic state legislators, have put their weight behind proposals that increase shoplifting charges.

One such proposal would raise even minor assaults against retail workers from a misdemeanor to a felony, bumping shopkeepers into the same protected category as frontline workers. This provision exists for assaults on responding EMTs, traffic agents giving tickets, and cops making arrests—and was extended last year to all MTA employees, including cleaners and booth attendants.

But store employees are not the same as public servants, and, insofar as it means increasing sentencing on would-be assailants, this proposal runs counter to liberal ideals—no matter how much shopkeepers deserve safety. Scuffling with a cop and with a CVS employee should not carry the same weight; nor should we incentivize store workers to engage thieves physically as a back door to ensure prosecution (not that Manhattan DA Alvin Bragg, who loudly decriminalized resisting arrest, would pursue that anyway).

Furthermore, prosecutors already have ways to elevate violent shoplifts from misdemeanors to felonies. Creating new charging mechanisms will only be as meaningful as a DA's—likely very limited—appetite and bandwidth to use them. It would be much more straightforward to amend discovery laws so that prosecutors have bandwidth to prosecute shoplifting.

Another bill introduced last month would elevate petit larceny from a misdemeanor to a felony if committed within two years of a previous conviction. The proposal by state senator Kevin Thomas (D-Long Island) and Assemblyman Jeffrey Dinowitz (D-The Bronx) would increase the maximum punishment from one year in jail to four in prison for a first-time felon.

This would elevate shoplifting to a position similar to that of repeat drunk driving: second offenders face felony charges if they drive intoxicated within a decade of a first conviction. But just as storeowners aren't cops even when assaulted, repeat pilferers are not the same as convicts who return to drunk driving. The harms to society are just not equivalent.

It's an appropriate point of pride in New York that we don't treat minor offenses as felonies. So why are liberal leaders and groups finding new ways to felonize people?

The answer is simple. These proposals dodge the unfashionable legislative changes that are necessary to rescue retailers. The 2020 discovery statute has confounded district attorneys' offices with compliance burdens that force them to triage cases, dismissing misdemeanors at rates that, in the case of the Manhattan DA, rose from less than a third in 2019 to over half in 2022. The dismissal rate for even lower-level violations and infractions rose in that period from 7 percent to 48 percent. Who has time to prosecute shoplifts, with or without augmented charges? Until we amend discovery laws, New York prosecutors certainly don't.

Another major problem for businesses is teen crime, which repels clientele from commercial areas, and comprised a fifth of NYC robbery arrests in the final quarter of 2022. But since the 2017 enactment of "Raise the Age" laws, 83 percent of felony crimes (and 75 percent of violent felonies) committed by 16- and 17-year-olds never even go to criminal court, while essentially no misdemeanor cases do. In Monroe County—home to Rochester, New York's third-largest city—nearly two-thirds of all youth crime cases last year were removed to family court. Freed from consequences, teens lead the 133 percent increase in Rochester car thefts since 2017, which deters would-be shoppers from venturing downtown. Unless "Raise the Age" is amended, that problem will continue to spiral.

Yet more than 120 law enforcement officials, politicians, and business leaders from the greater Rochester area last week sidestepped these key legislative issues and championed Governor Hochul's ill-fated attempt to tweak to the state's 2020 bail legislation. Had the legislature approved, judges would have gained more technical freedom to set bail on offenders who commit "bail eligible" crimes: a distinction newly created by the bail reform law. However, judges would still be incapable of detaining people who commit whole categories of robberies, burglaries, and misdemeanor assaults, drivers of not just theft but unenticing disorder in commercial districts. Without getting rid of the bail ineligibility standard itself, criminal reoffending by recidivists who cannot be detained pretrial will not stop.

It is an understandable political strategy to push for Hochul's small change, rather than for many changes that might all crater. But even if some version of it passes, New York still likely faces another year with negligible fixes to the statewide reforms that are crushing commerce.

The determination not to cede progressive wins has boxed Democrats—motivated to boost public safety and protect mom-and-pop owners—out of pushing hard for legislative change needed for public safety. And perversely, it has left liberals pursuing less justice and sympathy toward defendants. Everyone loses.

Hannah E. Meyers is a fellow and director of policing and public safety for the Manhattan Institute.

The views expressed in this article are the writer's own.