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Comment by public_defender | Hacker News Reader

Expert in stolen goods here.

I was talking to a NYC colleague the other day about how there are trends in favor of not punishing people for certain criminal activity in the city. We were talking about driving with a suspended license, but I asked about shoplifting. She said, "Oh, no. That's on the opposite trend. Not only are they prosecuting it to the maximum, but they just changed the law to make it easier to hold people on bail for shoplifting." She made it clear that shoplifting was never a low priority for prosecution, but now it's a higher one.

I understand that the claim in this article is that aggregators/sellers/fences whatever should be surveilled and prosecuted (more), but just wanted to add this tale from the courthouse and emphasize that the street-level shoplifter will be the target of most policy interventions here, which is the least effective and least humane strategy.

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This is clearly not true.

> Manhattan D.A. Acts on Vow to Seek Incarceration Only for Worst Crimes

> The district attorney, Alvin Bragg, told prosecutors in his office in a memo that they should ask judges for jail or prison time only for the most serious offenses — including murder, sexual assault and economic crimes involving vast sums of money — unless the law requires them to do otherwise.

https://www.nytimes.com/2022/01/06/nyregion/alvin-bragg-manh...

And this isn't entirely new with Bragg...

https://nypost.com/2022/06/07/nyc-da-downgrades-macys-loving...

https://nypost.com/2021/10/02/nyc-man-leads-record-shatterin...

It clearly is true. I can actually watch it happen. You can too, if you go to arraignments in NYC. The line ADAs have no discretion to dismiss petit larceny (shoplifting) at arraignment. They need supervisor approval. There are other cases like driving under suspension (VTL 511 -- mentioned in GP) where they do have this discretion. There is a reason for the difference, which is that petit larceny is a priority.

Also, the DAs supported the "harm over harm" amendment to bail reform (CPL 510.10(4)t) for the explicit purpose of seeking bail in repeat shoplifting cases. And can you guess how they're using it?

You are conflating DA public statements with actual operational policy. It is nothing new that DAs claim to prioritize things that are not on their roadmaps.

So on the one side I see news reports of dozens of cases of serial shoplifting offenders out on the streets, and the NYC DA informing his staff and letting the public know that if you steal less than $500 you will not go to jail.

But you're claiming that the DA actually intended to send them to jail. So he was baiting them to commit the crime? I don't buy it.

And you're claiming that his prosecutors have no discretion in prosecuting these cases? I don't buy it, but if you have some references to support that claim, other than word of mouth, I'm all ears.

I can't find precisely what the amendment was and when it took effect, but the subject of the article was a surge in retail theft over several years, so if you're talking about some changes in the past year, then maybe we will be able to see some effects in the next year.

I am speaking of the perspective of having seen about 200 cases of this type in the last few years (this is a moderately low sample size among practitioners) in the place in question and from having discussed the issue with colleagues who have more experience than that over longer time periods in the same place.

You are free to disregard my "word of mouth" claim in favor of an elected prosecutor's press releases and true crime sensational stories in one of the country's most infamous tabloids. I just wanted to put some ink on the statement that what I described is "clearly not true."

You are only seeing the cases that make it to the courthouse, right? How many shoplifting events are ignored, missed, or otherwise let off before things make it that far? OK, there is no discretion on the cases they allow into court but there is a hell of a lot of discretion before things get to that point.

This is correct in the sense that the police have the ability to "let someone off with a warning," or loss prevention/the cashier can look the other way, but my statement applies to any case where someone gets a ticket or is arrested. That's where the ratchet starts to tighten.

In the case of habitual, high-volume retail theft like in the article, people seem to be eventually arrested at a pretty fast clip, though it's obviously impossible to know the rate.

I regret the "clearly not true" wording. I wasn't reading your original comment as closely as I should have.

But now I'm not clear exactly what you are claiming. Of the 200 cases you've seen, how many were petit larceny cases that resulted in jail time? How much jail time?

Every source I can find indicates that the government can reduce charges or dismiss, and that in any event, jail time is unlikely.

"Jail is highly unlikely" (for petit larceny) https://stengellaw.com/larceny-lawyer-nyc/

"A petit larceny charge “would get a desk appearance ticket and fall under Bragg’s ‘no prosecution memo,’” said Joseph Giacalone, a John Jay College of Criminal Justice professor and ex-NYPD sergeant..." https://nypost.com/2022/01/08/alvin-bragg-underplayed-shopli...

> how many were petit larceny cases that resulted in jail time? How much jail time?

I don't think I've seen anyone get a jail sentence for a shoplifting petit larceny in New York. However, people commonly serve jail time before sentencing in these cases. There are two major causes: arrests and bail.

The DA statement in the article you cite says that people should be issued a summons for shoplifting rather than be arrested. It is true that this should happen, but a lot of police don't seem to agree with it and they have the power to arrest. I have seen more petit larcenies in DATs than under arrest at arraignment, but it's actually a pretty close call. People who are arrested can spend a few days in jail until they are arraigned.

At arraignment, the person will be released unless bail is set. Bail cannot be set in most misdemeanors in NY after bail reform. However regarding shoplifting, the legislature has passed the "harm over harm" carve out (referenced earlier) to allow a prosecutor to ask for bail if someone is, among other things, repeatedly accused of shoplifting. Having bail set in a misdemeanor like this is a big deal because a lot of people will serve more jail time waiting for a plea offer than would have been the sentence.

Regarding discretion to dismiss, this is a nuanced issue. Line prosecutors, unlike police, have astonishingly little autonomy. More specifically there is usually freedom to be more punitive but not less punitive. There are instances where discretion is pre-delegated and the prosecutor in arraignments can dismiss a case if they see a reason this would be a good idea, but this is extremely rare. What I was saying above is that petit larceny is not such a crime. Of course there are other ways to dismiss cases later in the process, but those require more work and are available to fewer people.

Anyway my original point, which I will stick to, was that shoplifting is not deprioritized or unprosecuted by the NYC DAs. They treat it as seriously as anything, and to my mind more seriously than they should.

Aren't most shoplifters not even caught? Police don't investigate because the city won't prosecute. And shops won't report because police won't investigate.

Maybe what you say is true about arraignments. But that assumes that someone has been reported, investigated, and caught.

> Aren't most shoplifters not even caught?

Maybe? I would tend to believe that but it seems impossible to know. I think companies tend to argue something like shrinkage == theft and theft > arrests, but that's pretty suspect since there are many other ways that inventory goes missing.

As to your other point, I think it's a myth that people lose faith in governmental administration and fail to report crime in this context. Maybe that happens with things like sexual violence, but not here where property owners have every economic reason to report theft without considering police availability or effectiveness.

I agree that police don't investigate crime like this (in cities), but in the corporate context they don't need to. This field is dominated by private investigation and security. People are detained with dubious legality by the "loss prevention" employee until police show up, then the store hands over 4k video of the person stuffing baby formula in their pants and walking out of the store.

It can both true that those shoplifters getting caught are punished to the full extent of the law and that it is hard to catch 50/50 people who were in a shop for 30 seconds and arrest them for shoplifting. So hard in fact that if the police are not physically there before it is happening there is likely zero chance to catch anyone in these groups.

The crime is perfect.

The other thing that's interesting from their state graph is that it disagrees with the "people fleeing anarchist California to orderly Texas to escape rampant crime" meme.

Not only does Texas have higher rates of larceny theft[1], it is the biggest outlier on the graph in terms of lack of prosecution for it - no other state is further below the trend line.

[1]: https://www.statista.com/statistics/232583/larceny-theft-rat...

Also should be taken into account, it's about _reported_ larceny theft. Allegedly, they say that in "anarchist California" people don't even bother reporting anymore.

It probably doesn't help that our Attorney General has been under indictment for securities fraud for years now.

> the street-level shoplifter will be the target of most policy interventions here, which is the least effective and least humane strategy.

Getting a low-level criminal or junkie off the street, alive, is worth a lot. You can then offer them a chance to turn their sentence into rehab or something if they don't need jail.

And there's no reason we can't go for the higher ups too, there's (jail)time for everyone!

> Getting a low-level criminal or junkie off the street, alive, is worth a lot.

Off the street and on to Riker's Island. A jail so dangerous that it has a high likelihood of being put into federal receivership in the next year. People are safer on the street. Full stop.

But the streets are safer with some of those people in Riker.

Short term. What happens long term? What are the aggregate consequences of such policies to society?

I don't know the answers to these questions, I would want an expert to weigh in.

> What are the aggregate consequences of such policies to society?

Might ask yourself the same question about shoplifting gangs being let loose

And if Riker's is a problem, then deal with that specific problem. Not prosecuting people seems to be one level removed from it. (yes, they are connected, but for example, not sending pre-trial people there could be a start)

Probably mostly positive actually. Removing people who either have poor self control or little ability to find productive work means they don't teach those habits to their children and those around them.

This does not mean the answer is executions though, as people's lives and happiness have value even if they're scumbags.

> People are safer on the street.

Only if you narrowly define 'people' to mean the tiny minority of people who are thieves, and exclude the overwhelming majority of people who aren't thieves. Thieves are safer on the street but everybody else is safer with thieves off the street. You've got your priorities skewed.

This is a reasonable comment if you're talking about stabbings or murders but not shoplifting. Allowing people to steal from retail stores with impunity doesn't make anyone unsafe.

Realize that I'm not arguing for impunity, just that incarceration should be off the table.

What? If I was shopping and a gang busted in and stole a bunch of stuff, I would feel extremely unsafe..

Allowing people to commit any forceful or violent crime makes everyone feel less safe but also encourages the crime to escalate.

> just that incarceration should be off the table.

Nope. Nobody takes options off the table or the opposition adjusts. If we say we won't imprison people for X then X becomes a freebie. You see it in SF where shoplifting under $1k isn't pursued, in Vancouver where vandalism isn't pursued and you can pitch a tent up against someone's building, etc. Without involuntary incarceration you can't even force someone into detox or rehab.

We should try to have better options but we've got to stop the sabotage of our system. If you can't present a better alternative to incarceration (for everyone holistically) then you can't complain.

California is starting to clean up its DAs, a bit, British Columbia is cracking down. Eventually we'll have the use of our legal system again.

That sounds insightful but it is wrong - Vancouver BC lost 3500 people on its streets last year.

But there's no reason to put people in expensive and dangerous prisons when minimum security facilities will do. When you're drying people out and have the only supply around for 50km they aren't going to leave.

It could be wrong, I have no idea from a statistical prospective. You would have to analyze the people who are arrested and figure out what are the mortality rates in those narrow demographics, which is not my field. We can assume maybe 20 people will die on Riker's this year[0] our of ~5865[1], so it's not a low rate. I am mostly motivated to counter the "people better off in jail" narrative, which is horrible and pernicious.

Another thing is that your hypothetical minimum security facility does not exist in NYC and is not going to be built, so we are dealing with Riker's for all pretrial confinement unless you are a child or very mentally ill.

[0] https://www.nytimes.com/article/rikers-deaths-jail.html

[1] https://vera-institute.shinyapps.io/nyc_jail_population/

> Rikers: 20 deaths/y from ~5865 population

Vancouver: ~2500 deaths/y from ~25k population of injection drug users

> I am mostly motivated to counter the "people better off in jail" narrative, which is horrible and pernicious

And yet correct.

> your hypothetical minimum security facility does not exist in NYC and is not going to be built

Why would it have to be in the city?

> so we are dealing with Riker's

Still better than the street.

Prison is not permanent housing. Moving someone from the street, to prison, then back to the street, takes away a lot of the resources that they may have been using to keep themselves alive. Temporary shelter may be gone. Connections to people who can help them may be gone.

If someone dies on the street as a result of imprisonment, they're counted as a street death, but they're really a prison death.

> Prison is not permanent housing.

The goalposts were fine where they were, that prison can be and in these cases is a better alternative to leaving people on the street.

> a lot of the resources that they may have been using to keep themselves alive

They are dying in an open air drug encampment. Any resources they had were sold for drugs in the first few days.

> Temporary shelter may be gone.

They're probably under a tarp, but maybe they had a place at one of the indoor drug encampments. None of these are the slightest help, and to go back to any previous shelter is death.

> Connections to people who can help them may be gone.

Any people you knew while living in a drug encampment are toxic or worthless at best. Any "help" you were getting at the time is the type that kept you there.

> If someone dies on the street as a result of imprisonment, they're counted as a street death, but they're really a prison death.

Your analysis ignores the people who get better as a result of a criminal-sanction enforced dry-out and that a significant number (25% maybe) of street users who don't make it into prison (it's a good thing in this context) will die on the street each year.

Yes, minimum security is better than maximum and non-criminal rehab better again, but you said it won't be built so it's good for you to know that even Riker's Island is better than leaving junkies on the street - for the junkie!

What is more effective and humane? Is it about removing the poverty that drives that kind of theft, or were you thinking of something more direct?

This is about organized retail bulk theft. Punishing the individual shoplifters is useful. But it's also useful to crack down on secondary markets through which (mostly) stolen goods are shifted.

How? Should we ban Amazon and Ebay?

Ban Amazon and eBay? No.

We haven't banned pawn shops, either. But we do understand that they are a conduit for theft and can induce other crime, and so we tend to impose a certain amount of regulation upon them to reduce the scope of the harm.

What exact form that would take is up for discussion.

And, of course, there's other secondary markets-- sketchy people with tables illegally selling gray market consumer goods.

Expert in making stuff up perhaps.

In polite company we say "lawyer."

Ideally they would get the street-level shoplifter to inform on the shoplifter's boss in order to get a low sentence or immunity, so that the real kingpin can be caught.

It seems you are a fan of closing down urban retail

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