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Stop Decriminalising Crime

When a gap opens between what the law punishes and what society believes should be punished, people lose respect for the law and are more likely to violate it. 

· 11 min read
A police car graffitied with "ACAB" (all cops are bastards) is set alight during the George Floyd riots.
LOS ANGELES - 30 MAY 2020: Police Car Being Burned During Protest March Against Police Violence Over Death Of George Floyd. Shutterstock.

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. 

Chicago’s Criminal Irresponsibility
Progressive thinking on urban violence is so unrealistic it is dystopian.

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.

Paul H. Robinson

Paul H Robinson is the Colin S. Diver Professor of Law at the University of Pennsylvania. He is co-author of the forthcoming book ‘Confronting Failures of Justice: Getting Away with Murder and Rape’.

Jeffrey Seaman

Jeffrey Seaman is a researcher and writer on the criminal justice system. He is co-author of the forthcoming book ‘Confronting Failures of Justice: Getting Away with Murder and Rape’.

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