PHOTO: Assembly Speaker Heastie speaks at the opening of Google’s newest office building St. John Terminal in New York. – Lev Radin/Pacific Press/Shutterstock

‘When NYPD officer Diller was murdered [we] weren’t asking why the suspects’ criminal histories had failed to deter them; we were asking why they were still out on the street.’

By Rafael A. Mangual | New York Post

With violent retail thieves brazenly flouting the law and battering those who try to stop them, many New Yorkers would like to see their government adopt harsher penalties for such abhorrent behavior.

Among them is Gov. Hochul; but she’s been unable to secure the support of Assembly Speaker Carl Heastie.

The reason, according to Heastie, turns on his answer to a simple question: “Do I believe that increasing penalties deters crime?”

His “simple answer?”

“No.”

He elaborated while addressing reporters this week: “I don’t believe, in the history of increasing penalties, has that ever been the reason that crime has gone down.” 

Dear Speaker Heastie: Where do I begin? 

In choosing to rebuff Hochul’s entreaty, Heastie is merely exercising the power that comes with political victory.

Elections do have consequences.

But while Heastie is entitled to make certain policy choices — even bad ones — he is not entitled (in the words of the late Daniel Patrick Moynihan) to his own facts.

And the fact is Heastie is, in a word, wrong — which is to say his reasoning is both inaccurate and incomplete. 

First, there most certainly exists good evidence harsher criminal penalties can and do deter crime.

One of the more notable works on this question is a study of California’s “three strikes” law, which found: “California’s three-strike legislation significantly reduces felony arrest rates among the class of criminals with two strikes by 17-20%.” 

Incarceration deterrent 

Another well-known deterrence study assessed the impact of expanding the penalties attached to the failure to pay court-imposed fines to include imprisonment.

It found those subjected to the harsher penalties “were significantly more likely to pay court-ordered financial obligations,” which the authors attributed to “a deterrent threat of possible incarceration.” 

Criminal justice hawks like myself aren’t alone in our belief in the power of harsher penalties, either.

Just ask “progressive” New York City Councilmember Lincoln Restler, who has vocally pushed for harsher penalties for those who violate alternate-side parking rules in the hopes of increasing compliance. 

Now, don’t get me wrong, the evidence also makes clear the certainty of a punishment coming to pass is as, if not more, important as the punishment’s harshness. 

And there’s a case to be made that evidence of specific deterrence (the effect of having experienced a particular sanction on an individual’s future behavior, which is different from general deterrence, the effect of a sanction’s existence on the behavior of the general population) isn’t as strong as some make it out to be; but the idea harsher penalties don’t carry any deterrence value is baseless. 

But by narrowly focusing his decision to rebuff Hochul on deterrence grounds, Heastie made an even more egregious analytical error.

He ignored the far more important penological end of incapacitation.

When we’re talking about active, chronic offenders, we shouldn’t care nearly as much about whether those offenders are less likely to re-offend after they get out from under harsher sanctions as we should about all the crimes we’ll have avoided while those offenders were locked up. 

When Detective Jonathan Diller was murdered on March 25 in Far Rockaway, those of us who were outraged weren’t asking why the suspects’ lengthy criminal histories failed to deter them from a life of crime.

We were asking why, despite so thoroughly displaying their unwillingness to live by society’s rules, they were still out on the street. 

The answer is clear: Because state lawmakers have refused to draw a line in the sand as to repeated offending that a) criminals might think twice about crossing or b) results in the (truly) lengthy absence of chronic offenders from our streets.252

New Yorkers have asked for change.

Heastie & Co. have said “No.”

We can argue about why they’re wrong.

The question is: Will it do any good? ##

Rafael A. Mangual is the Nick Ohnell fellow at the Manhattan Institute and the author of “Criminal (In)Justice: What The Push For Decarceration And Depolicing Gets Wrong And Who It Hurts Most”