The United States has made some progress in reducing the shockingly large share of the population that lives behind bars, mostly by dialing back the War on Drugs. Building on this progress requires similar changes in the treatment of nonviolent property crime.
In New York, as in many other states, stealing more than $1,000 is a felony. A person who grabs a new iPhone can end up in prison, at public expense, for four years.
In New Jersey, which has the most stringent standard in the United States, a person can be convicted of a felony for stealing more than $200 — a number that hasn’t changed since 1978.
Treating what amounts to petty theft as a felony is draconian. In American society, it is difficult to recover from a felony conviction. It is hard to find work, hard to find housing, hard to rebuild a life. Incarceration is also expensive and ineffective. New York spends about $60,000 per prisoner per year, but there is little evidence the punishment deters the crime.
In a 2016 analysis, researchers at the Pew Charitable Trusts looked at 30 states that increased felony theft thresholds between 2000 and 2012. Property theft rates fell nationwide during that period; the study found no evidence that the decline was any slower in those states. The analysis also found no relationship between the level of the threshold and the level of property crime. States that set thresholds at a relatively high level, like $2,000, did not experience more property crime than states that set thresholds at a relatively low level, like $500.
Brian Benjamin, a state senator from New York City, sees a clear lesson in that experience. He plans to introduce legislation to raise the state’s felony theft threshold to $5,000. With a few exceptions, thefts of lesser value would instead be misdemeanors. Offenders would be punished, but the path to rehabilitation would remain relatively clear. (Any robbery, meaning theft by force, would remain a felony. The proposal is focused on nonviolent crime.)
“We want a system that penalizes people but doesn’t destroy their lives,” he said.
New York is among a small number of states that have not updated felony theft thresholds in recent decades. But the legislation isn’t just about catching up. It would break ground.
The $5,000 threshold would be the highest in the nation. It would be twice as high as in the next highest states, Wisconsin and Texas, where the threshold is $2,500. But it still may not be high enough. While states have moved thresholds upward in recent decades, they have erred on the side of caution. In a 2016 report, the Brennan Center for Justice at New York University estimated that 45,000 Americans were behind bars for thefts of less than $10,000. It argued that their incarceration was not in the public interest and that people convicted of such thefts should instead be fined and required to make restitution or perform community service.
Since 2009, Florida has allowed some people charged with low-value theft to stay out of prison by agreeing to conditions such as state supervision, drug testing, participation in community service and making restitution to victims. A 2019 state analysis concluded that participants were less likely to steal again than those convicted of theft who served time in prison.
Under Benjamin’s legislation, New York would be the only state to index felony theft thresholds to inflation. Stealing $1,000 today is the rough equivalent of stealing $500 three decades ago. New York’s inaction in leaving its standard unchanged in nominal terms has made that standard more draconian over time. To prevent this kind of slippage, the state would review the threshold every five years and make adjustments in increments of $50. For example, if inflation averaged 2% a year over the period, the threshold would rise to $5,500.
Inflation adjustment is basic housekeeping. It makes little sense to allow inflation to erode legal standards. Everyone understands the need to adjust tax brackets and Social Security benefits for inflation. The same rationale applies to adjusting felony theft thresholds.
New York in recent decades has been at the forefront of the national effort to reduce prison populations. State leaders have recognized that the social and economic costs of incarceration are high and are borne disproportionately by minority communities and that many prisoners pose no real risk to public safety.
Between 1999 and 2020, New York’s prison population declined by 47%. The state has reduced the severity of punishments for nonviolent drug crimes. It has reformed bail rules so that fewer people are jailed before trial, and it is considering necessary reforms to its parole system. New York imprisons more people for technical parole violations than any other state.
But none of these changes go far enough. New York’s incarceration rate remains high, both by historical standards and by comparison with the rest of the developed world, because New York continues to use prison as the default punishment for too many crimes. The state can set an example for the rest of the nation by adopting a more sensible approach to property crime.