The Meaning of a Stolen Diaper

What are we looking at when we look at a stolen bag of Huggies? Last month, the New York Police Department’s verified Twitter account shared the news that officers in the Bronx had “arrested 12 individuals following an enforcement initiative targeting shoplifters,” adding, “The arrests made led to the closure of 23 warrants and the recovery of $1800 worth of merchandise.” Accompanying the tweet were photographs of three policemen and a carefully arranged display of the stolen items, which included bar soap, laundry detergent, cough medicine, baby lotion, baby wipes, and several boxes and bags of diapers. The tweet was later deleted, but among those who shared screenshots was Alexandria Ocasio-Cortez, the congresswoman who represents parts of the Bronx and Queens. “It’s much easier to frame people who steal baby formula and medicine as monsters to be jailed than acknowledge our politics and economic priorities create conditions where people steal baby formula to survive,” she wrote. A trollish contingent on Twitter began tagging Ocasio-Cortez in videos they shared of thefts and violent crime across the country. “If only he had access to diapers and baby formula,” read one typical example, appended to footage of a man assaulting an elderly Asian woman in Oakland.

New York City’s crime statistics for February are striking: every major crime category saw an increase, with robbery and grand larceny up by eight per cent as compared with February, 2020, and burglary up by thirty-one per cent. (The year-over-year crime stats are more alarming but somewhat misleading, as both crime and enforcement rates were dramatically down in early 2021.) The New York Post revelled in what it portrayed as a shoplifting epidemic, making a multiday story out of a guy stealing steaks from a Trader Joe’s. The Reverend Al Sharpton, appearing on “Morning Joe,” lamented how large pharmacy chains, such as Duane Reade and Rite Aid, were restricting customer access even to inexpensive items. (“Eric, they are locking up my toothpaste,” Sharpton joked, referring to Mayor Eric Adams.) Both the Post and the Daily News have relentlessly criticized New York County’s new District Attorney, Alvin Bragg, who vowed not to prosecute low-level offenses, for being “soft on crime”—and Bragg has appeared to respond to the criticism, announcing the formation of a new business alliance “to reduce shoplifting and commercial robberies” and saying that he will consider seeking harsher penalties for habitual offenders.

Several public defenders told me that, while some people who are arrested on petit-larceny charges are stealing baby products and other household items for themselves, others do so intending to sell the goods, and, sometimes, they steal over and over again. (A recent favorite of the Post is the serial shoplifter from Queens with a hundred and sixty-eight arrests on his record, including four arrests across three boroughs for petit larceny in the month of January alone.) Such a scenario is less sympathetic than that of, say, a frantic mother driven to shoplifting Pampers. But, public defenders pointed out, it’s no less a marker of poverty. “The guy is selling the diapers to get the same things as anyone else who is struggling,” Jonathan Sussman, a criminal-defense attorney who spent seven years as a public defender in Manhattan, said. “It’s food money, rent money, a MetroCard. He’s not going to the club with that money.” Tina Luongo, the attorney-in-charge of the Criminal Defense Practice at the Legal Aid Society, which is representing some of the defendants in the Bronx enforcement operation, told me, “When it’s diapers, it’s not about criminality or public safety—it’s about desperation.”

The black market for diapers and other baby products thrives because so many people can’t afford over-the-counter prices for them. Diapers and wipes cannot be purchased with food stamps or other welfare benefits, and the expense is a grinding source of stress for families in poverty. During the pandemic, the number of families who couldn’t pay for diapers shot up across the country. The HopeLine, a community-aid organization based in the Bronx, was distributing an average of fourteen thousand diapers per month in 2019; in 2020, the average spiked to twenty-two thousand; and in 2021 it climbed as high as thirty thousand. “The lines today are through the roof,” Maria Cintron, the organization’s executive director, told me when we spoke recently.

The community that Cintron serves also represents the target market for those who steal baby products with an intent to resell them. “A lot of parents might go to the local bodega or to a neighbor and buy these little off-brand packs of diapers, because that’s all they can afford,” Cintron said. “The bodega might actually be part of these shoplifting rings, unfortunately—sometimes the parent is getting something cheap on the low. Then the baby gets a rash or the diaper leaks, and the parent needs either to get more diapers or to keep the baby in a dirty diaper. We’ve seen a lot of that happening, and it gets people that much closer to taking the next step of shoplifting,” she added.

Luongo and Sussman both said that prosecution of nonviolent petty offenses in the city has grown less harsh in recent years. (War stories from the Giuliani and Bloomberg eras abound: Sussman recalled a client who did three months for pocketing a Pez dispenser at Macy’s, and Luongo had an elderly, homeless client who got a year for stealing toilet paper and gum from the old Pathmark on 125th Street.) New York State reformed its bail policies in 2019; petit larceny is no longer a bail-eligible offense under most circumstances, but judges are granted some discretion when other alleged offenses are involved. (Supervised release, an alternative to pretrial detention that went citywide, in 2015, has been shown to be “as effective as cash bail in” insuring that defendants keep their court appointments, according to the Mayor’s Office of Criminal Justice. It has also been criticized for being too liberally applied: the man who murdered Christina Yuna Lee in Chinatown last month was on supervised release.) Plea deals have become less draconian, and judges and prosecutors appear more open to sentencing alternatives, such as drug-treatment programs and behavioral-health counselling. Ann Mathews, the managing director of the Criminal Defense Practice at the Bronx Defenders, told me that the question is not whether there have been improvements in attitudes toward low-level offenses: “It’s: Why are we prosecuting these instances in criminal court at all?”

That question is especially apt in light of evidence that prosecution of low-level crime is rarely successful—just twelve per cent of misdemeanor cases in the city end in a conviction—and does not appear to act as a deterrent. It may even increase the likelihood of future offenses. A working paper published last year by three university professors under the aegis of the National Bureau of Economic Research found that “nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years.” The most dramatic positive effects accrued to first-time defendants, “suggesting that averting initial entry into the criminal justice system has the greatest benefits.” Michael Rempel, the director of the Data Collaborative for Justice at John Jay College of Criminal Justice, told me that, when it comes to shoplifting, “there is no magic solution that anyone can point to, but there’s certainly no evidence that churning these individuals through the criminal courts is helpful.”

Rempel is a co-author of a Center for Court Innovation report that argues “that the potential stigma, trauma, loss of housing, and reductions in employment and earnings that jail produces are criminogenic—leading to higher rates of recidivism than would have otherwise arisen had people been released.” (The study also showed that policing and prosecution of low-level crime in New York City is a locus of startling racial disparities: in 2019 and 2020, Black New Yorkers, who constitute less than a quarter of the city’s population, accounted for nearly half of misdemeanor arrests.) Petit larceny is among the nonviolent crimes that the Center for Court Innovation study recommends for pre-filing diversion, in which an individual is not prosecuted but instead immediately directed to community services that can address challenges related to housing, substance abuse, behavioral health, and more.

But even if more of these services were to materialize tomorrow—handsomely funded, warmly welcomed by the editorial board of the Post—they would be no panacea. Diversion programs as currently formulated, Sussman said, can be a nightmare of bureaucracy and brain-breaking logistics, further exacerbated by high levels of turnover in both D.A.’s offices and social-service agencies. “It’s bred into me now that clients are going to have a really hard time getting the services,” Sussman said. Clients who live in Brooklyn might be assigned to an outpatient program in the Bronx, nowhere near a bus or subway stop. Appointments—as many as three or four in a week—are handed down without regard for child-care needs or work schedules, and punctuality is required but not necessarily rewarded; the client may have to wait two to three hours to be seen. Full compliance can be near-impossible for anyone with a job, a kid, serious mental-health issues, or just low motivation.