Statement on Proposals to Expand Criminalization of Poverty

March 21, 2023

FOR IMMEDIATE RELEASE

Contact: Anthony Chiarito, The Bronx Defenders, achiarito@bronxdefenders.org

NEW YORK —  Today, The Bronx Defenders released the following statement in response to proposals by the industry advocacy group Collective Action to Protect our Stores to expand criminalization in response to concerns about safety and theft:

“Everyone has a right to be safe and no one should fear going to work. However, changing state laws to jail more Black, brown and low-income people won’t meaningfully protect retail stores or workers. Most people arrested for petty theft are struggling with poverty, mental health issues, drug use, or all three. Alternatives to incarceration can begin to address these issues, but we understand that these matters are complex. So let’s talk about them. We invite CAPS to meet with us so that we can work together to expand investments in resources and develop policies that will actually promote safety and prevent violence in our communities.” 

BACKGROUND

Existing Laws Allow Judicial Discretion and Harsh Sanctions

  • Complaints from retail employees have centered on allegations of assaults committed during thefts. Under Penal Law § 160.10(2), such alleged conduct amounts to Robbery in the 2nd degree, a violent felony offense. In such cases, the bail law allows judges to set money bail, remand a person to jail without bail, set non-monetary conditions of release, or require supervised release or electronic monitoring. 
  • If a person is convicted of the robbery charge, the penalty is up to 15 years in prison. However, all parties often agree to lesser penalties — not because they are confused about the law, but because they recognize that issues of poverty, mental health and/or substance use are often involved and incarceration would only worsen the problem.
  • Last year the legislature amended the bail law to allow judges to set money bail on any person charged with retail theft if that person has an open case for retail theft (CPL § 510.10(4)(t)). Thus, even in cases with no allegation of assault, judges have wide discretion to set bail on those charged with petty shoplifting. Under the current law judges must also consider an individual’s “activities and history,” the charges they are facing, and their “criminal conviction record” in every single case when making determinations about pre-trial release (CPL § 510.10(1)). 

Creating Hierarchies of Victims is Wrong and Dangerous 

  • Under the current law, an assault that doesn’t result in serious physical injury is a Class A misdemeanor, with a penalty of up to a year in jail. Some have suggested elevating this offense to a felony when the person alleged to be harmed is a retail worker. 
  • Again, everybody deserves to be safe, regardless of their profession. The safety and security of teachers, nurses, food delivery workers, retail workers and people who are unemployed all have great and equal value. Lawmakers ranking one profession above others in criminal law sends a wrong and dangerous message and reinforces a system of prioritizing political salience above individual and community safety.
  • The penal law does include harsher penalties for assaults involving people of some other professions and there is no evidence that such laws have deterred violence. 

What Really Works

  • The tumult of the pandemic upended society and violence and disorder increased across the country, especially in states and cities with weaker safety nets. 
  • This budget presents an opportunity to make the investments in community safety that will truly address the problem: supportive and re-entry housing, protections against arbitrary evictions, an inclusive safety net, material support for victims and survivors, evidence-backed harm reduction resources and more.

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