Crime and its Non-Punishments

There’s a film playing in movie houses in major cities across America, and let me tell you—It’s a scary one. The setting itself is ominous: a haunted courthouse, possessed not by zombies or dead people, but by no-shows and noncompliance, indifference and contempt for the law.

Yes, I am talking about phantom District Attorneys in Los Angeles, San Francisco and now, with the election of the progressive Alvin Bragg in Manhattan—all top cops who are actually topless, nakedly unwilling to enforce the law. That’s a lot of horror and gore for already anxious citizens to endure during a pandemic.

Each of these prosecutors has made it plainly known that certain statutory crimes—stolen goods of $1,000 or less, resisting arrest, fare beating, small drug offenses, prostitution and trespassing—are not crimes requiring incarceration. With no cash bail, wrongdoers are given a mere “desk appearance ticket,” which they routinely violate by never showing up again. (That, too, apparently, is not a crime.)

If “smash and grab” retail theft is not an enforceable criminal act, soon assailants will no longer wear masks—and I don’t mean the N95 kind. They’ll simply smile for the camera while exiting Apple Stores or Walmart, AirPods in ears and hand drills in hand.

Many other crimes aren’t even being prosecuted at all. Thousands of felons have freely and gleefully left courthouses while planning their next heist. Soon TV’s “Law & Order” will be more aptly named, “Lawlessness & Disorder.”

Serious jail time in this new shrunken penal colony is being reserved only for murderers and, perhaps, some rapists. To be “progressive” in the criminal justice system these days is to dispense with the death penalty in all instances, regardless of how gruesome the crime and deserved the punishment.  Life imprisonment without parole is also becoming a relic of a bygone crime control era. Nowadays, district attorneys are recommending a maximum 20-year lifetime imprisonment.

Thanks to modern medicine and lifestyle choices, Americans are living longer. Thanks to district attorneys who have turned their offices into civil rights law firms, criminals will be spending less time in jail. All the better to avail themselves of their longer lifespans.

Bragg boasted that his reforms will make New York City safer. He must be referring to the same-named city on some other planet. Anyone who was living in New York from the mid-1960s through the mid-1990s remembers what urban menace looks like. Classic movies depicting that era, such as “Death Wish,” “Taxi Driver,” “The Warriors,” and “American Gangster,” show the harsh consequences of being soft on crime.

The title “Mean Streets” says it all.

New York’s new mayor, Eric Adams, himself a former policeman, warned criminals: “You won’t sell guns and drugs soon on our street.” Unfortunately, the Mayor doesn’t have a partner in his new District Attorney, who is more interested in making sure that low-level offenders are “made safe from the dangers posed by mass incarceration.”

You can direct state prosecutors to achieving criminal justice reform and the overturning of wrongful convictions. Noble goals, for sure, but with such an emphasis, protecting the public from criminality becomes peripheral. It’s nearly impossible to achieve both.

Lethal dangers lurk on our city streets. In 2020, homicide in the United States had its highest-ever yearly increase—29 percent.

Especially with crime on the rise. Lethal dangers lurk on our city streets. In 2020, homicide in the United States had its highest-ever yearly increase—29 percent. By the end of 2021, homicide levels reached record numbers in Columbus, Ohio; Indianapolis, Indiana; Louisville, Kentucky; St. Paul, Minnesota; Portland, Oregon; Tucson, Arizona; Toledo, Ohio; Baton Rouge, Louisiana; Austin, Texas; Rochester, New York; and Albuquerque, New Mexico.

Each of these cities is led by progressive prosecutors who have instituted their twisted notions of crime control and progressive political agendas.

Portland is a tragic example of the heresy and rank hypocrisy of subverting the rule of law with selective enforcement. No city was more insistent on defunding its police in order to demonstrate how much black lives mattered to the people of Portland. And predictably, criminals decided to show their civic pride by smashing statues, destroying businesses, running wild through courthouses and turning those crunchy-granola streets into a progressive prison for law-abiding citizens.

A year later, Portland’s mayor has been screaming “Mayday!” Black Lives Matter is now charging him with treason for having restored funding to the police and ordering them to prioritize violent crime. The same with the mayor of San Francisco, another Black Lives Matter bastion, who recently said, “It’s time that the reign of criminals who are destroying our city . . . come to an end.”

So much for the ludicrous experiment of sending social workers to crime scenes rather than trained crime fighters.

Tolerating some crimes sends a message to hardcore, violent criminals that it’s open season on victims.

To do otherwise is civic insanity. Tolerating some crimes sends a message to hardcore, violent criminals that it’s open season on victims. Ordinary citizens are then placed on notice that the true muggers are the prosecutors who gave criminals a license to steal.

It cannot be lost on anyone paying attention to the culture wars that Critical Race Theory has had a role to play here. Progressives see the disproportionate numbers of persons of color incarcerated and instantly think: racism, inequity and oppression. Jails, demonstrably, have a disparate impact on the marginalized segments of society. How to then bring about equity? Simply toss more white collar criminals, Asians, Indians, and Jews in jail, while at the same time, reducing the prison population of Black Americans?

Equity, these days, means that such lopsided outcomes must be overcome—one way or another.

The optics of incarceration is an eyesore for the intersectional crowd.

Where is the “equity” in permitting lawbreakers to go unpunished while spreading fear among law-abiders?

But Lady Justice is blindfolded for a reason. Our legal system is clearly not without moral failure, but that doesn’t mean the answer is replacing a “Broken Windows” crime strategy with one that says: “Take whatever you wish; smash and burn whatever pleases you; hold-ups and robberies are now on the house.”

Where is the “equity” in permitting lawbreakers to go unpunished while spreading fear among law-abiders? Criminal laws are written by legislatures. District attorneys are charged with enforcing them. They may be elected officials, but politics cannot color their discretion. They are first and always public prosecutors, not criminal justice reformers. They are required to uphold the rule of law, and not serve as the enablers of lawlessness.

Thane Rosenbaum is a novelist, essayist, law professor and Distinguished University Professor at Touro College, where he directs the Forum on Life, Culture & Society. He is the legal analyst for CBS News Radio. His most recent book is titled “Saving Free Speech … From Itself.”