The latest fad in criminal-justice activism is the concept of “survival crime.”

The theory holds that the homeless, the poor, and people of color commit property crimes and low-level infractions in order to secure their basic survival. Any enforcement of these laws is thus a violation of their basic human rights and should be relaxed—that is, local governments should stop enforcing any laws that “criminalize homelessness” and “criminalize poverty.”

Survival crime theory is the flipside of Broken Windows theory. They deal with the same class of offenses—mainly property crime, drug possession, and public nuisances—in precisely the opposite way. Broken Windows theory argues that everyone is responsible for their own behavior and that, if we permit low-level crimes, it will lead to a general breakdown in law and order. Survival-crime theory, by contrast, argues that local governments should decriminalize these offenses because vulnerable individuals have been compelled by social conditions to commit them.

The idea of “survival crime” is not new, and has floated around in academic circles for decades. And for people living in a slum in Caracas, Peshawar, or Khartoum, there might be a moral argument that stealing food for oneself or one’s family is a justified “survival crime.” But the United States isn’t Venezuela, Pakistan, or Sudan. The federal government currently spends more than $1 trillion a year on anti-poverty programs, including general assistance, food stamps, housing vouchers, SSI, and WIC. Every city in America has a network of churches, food banks, and charities that offer direct assistance. And, more broadly, we’re living in an era of record-low unemployment and, in cities like San Francisco, New York, and Seattle, record-high minimum wages.

The problem is that cities like Seattle and San Francisco have not just “decriminalized homelessness” or “decriminalized poverty”—they have increasingly decriminalized crime. Over the past five years, the classification of survival crime has expanded well beyond stealing the proverbial loaf of bread. In California, for instance, Proposition 47 downgraded theft of property valued at less than $950 to a misdemeanor, meaning that the police are unlikely to pursue even habitual shoplifters and thieves. The predictable result: a statewide rise in petty theft. Seattle and King County recently released new guidelines calling on police officers to stop arresting individuals for all “homelessness-related crimes,” with the goal of “eliminating racial disproportionality” and ensuring that policies “do not penalize homelessness and poverty.” Meantime, city and county prosecutors have dropped thousands of misdemeanor cases against “vulnerable populations.” All this has caused widespread frustration among residents and law enforcement officers. As one veteran Seattle cop told me: “We have basically stopped enforcing the law against the homeless population. Political leaders don’t want it and prosecutors won’t pursue charges. It’s a waste of time.” In New York City, the NYPD has backed off from arresting people for subway fare evasion, on the grounds that enforcement has a disparate impact on the poor; farebeating has risen sharply since the new policy was enacted.

While concern is growing that these permissive policies have led to an increase in property crime, the greatest risk of survival crime theory is that we are slowly creating a parallel justice system: one for average citizens and another for politically-favored identity groups. Activists have successfully made the case that we must sacrifice equality under the law to address wider social inequalities. They are effectively arguing that our bedrock principle of “equality protection of the laws” is simply a mechanism of state oppression against the homeless, the poor, and people of color—a radical reversal of its original constitutional meaning.

If activists are successful in this revaluation of the law, there is no obvious limit to the extension of survival-crime theory to other favored identity groups. There is already a growing literature that survival-crime protections should be extended to the LGBTQ community, sex workers, and recipients of public benefits. Under the catch-all doctrine of intersectionality, they can be extended ad infinitum, depending on the political whims of the moment. In a short time, our legal proceedings may no longer begin with the question “what is the crime” but “who is the criminal”—Lady Justice may finally take off her blindfold and play a new role as the arbiter of two separate legal systems, depending on who stands before her.

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