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In some cities, a disproportionate share of the people being arrested or cited for transit fare evasion are minorities.

That fact has led cities like New York City, Portland, Ore., and potentially Washington, D.C., to ease their fare evasion policies.

Advocates argue that "the punishments didn’t fit the crimes," while opponents argue that decriminalizing fare evasion will financially hurt transit agencies.

When the city council in Washington, D.C., voted last week to reduce penalties for transit riders who skip paying their fares, the District joined a growing list of cities reconsidering how harsh their punishments should be for fare evaders.

Advocates often worry that fare crackdowns disproportionately target minority riders.

But in Washington and many other cities, transit agencies themselves have been reluctant to go along with the changes or have actively opposed them. They’re worried about lost fare revenue, a surge in more serious crime, and other consequences of going easy on free riders.

Fare enforcement on public transit is often portrayed as a crackdown on criminals. But that's not the way cities approach other, similar infractions, such as drivers who fail to pay tolls, notes Jon Orcutt, a spokesman for Transit Center, a New York-based advocacy group that supports lower penalties for fare evasion. The goal of toll road enforcement is simply to make sure drivers pay, not to arrest them.

Local officials in New York, San Francisco and Portland, Ore., have also been wrestling with the issue lately. Orcutt predicts that’s just the beginning. “I think it’s going to bubble up everywhere,” he says. Last year, he notes, protests erupted in Minneapolis after a transit police officer checking fares asked about the immigration status of a rider, who was then tazed, arrested and handed over to federal immigration agents.

Washington’s new law would hit freeloaders with a $50 fine rather than a $300 fine and the possibility of 10 days in jail.

“It’s time for a new strategy, one that doesn’t set people back for life over a $2 fare,” said D.C. Council Member Robert White, one of the sponsors of the legislation, during the council meeting before the vote.

He and other supporters of the measure were worried about the fact that Metro, the local transit agency, doubled the number of citations it issued for fare evasion between 2016 and 2017. A local civil rights group found that 91 percent of all the citations Metro issued were given to black people.

In the two years prior to February 2018, according to the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Metro Police stopped 30,000 people for suspected fare evasion and issued citations or summons for 20,000 of them.

“A criminal citation stays on your record for life. [Fare evaders] will have a criminal conviction for the rest of their life for a $2 fare,” added Charles Allen, another council member who supported the change. “There are serious real-life consequences that come with misdemeanors.”

But Jack Evans, who serves as both a council member and the board chair of Metro, saw things differently.

“When you don’t pay your fare at Metro, you’re stealing from Metro,” he told the rest of the council. “What we’re doing is decriminalizing stealing.”

A Metro spokesman said the move would have long-lasting consequences for the beleaguered agency, which has struggled with decreasing ridership, safety failures and financial troubles.

“We are extremely disappointed with the council’s vote to decriminalize fare evasion, which we believe will have significant safety and financial consequences for the region,” Metro spokesman Dan Stessel said in a statement. “We hope the council will revisit this issue once these impacts are understood."

Mayor Muriel Bowser’s office reacted tepidly to the new policy. “We do not believe the legislation makes us safer or stronger,” it said in a statement. But the office also indicated that the mayor likely would not veto the legislation. That could reflect the fact that, with the council voting 10-2 in favor of the new policy, supporters could easily override a mayoral veto anyway.

New York's Fare Evasion Policy

Like the Washington area, New York City is in the throes of a transit crisis, with ridership declining while its subways deteriorate and other facilities need expensive upgrades. Lately, New York’s Metropolitan Transportation Authority (MTA) has been raising the alarm about the amount of fare evasion that takes place on its systems.

The agency believes that it loses $215 million a year in lost fares, between its subways and buses, because of riders who don’t pay. It estimates that nearly 4 percent of subway riders and 16 percent of bus riders skip paying their fares.

Things have gotten so bad that Andy Byford, the CEO of the New York City Transit Authority, told MTA board members that he personally confronted a passenger who jumped a turnstile and convinced him to pay the fare instead. Now Byford wants more MTA employees standing guard outside of turnstiles to make sure riders pay as they enter the subway system.

The MTA says fare evasion has spiked since Manhattan District Attorney Cy Vance announced in February that his office would no longer prosecute criminal cases for fare evasion. Vance’s office says the policy change allows police officers to focus on doling out simpler punishments, such as civil fines and ejections from the system, rather than criminal cases.

But when making the change, Vance also noted the racial disparities in fare evasion prosecutions. More recently, an analysis by The Marshall Project and Gothamist found that, between 2014 and 2018, 89 percent of the people arrested for fare evasion were black or Hispanic. That percentage remained unchanged, even after Vance stopped prosecuting fare evasion cases. (Vance is one of five district attorneys in New York City; the district attorneys in the other four boroughs have not changed their policies on fare evasion prosecutions.)

Why Aren't People Paying Transit Fares?

One of the flashpoints in the debate is why passengers aren't paying their fares. Advocates for low-income residents say fare evasion is a crime of poverty; New York Mayor Bill de Blasio and transit officials remain unconvinced.

Still, the mayor and city council agreed earlier this year to provide discounted fares for 800,000 low-income New Yorkers.

In Portland, Ore., Shawn Fleek, a spokesperson for OPAL Environmental Justice Oregon, says riders there have been a key part in getting TriMet, the local transit agency, to adopt a unique arrangement for people who are caught evading fares. As of July, TriMet now gives adult riders 90 days to settle their fare evasion citations outside of the court system. Offenders can pay a fine, perform community service, appeal their citation or enroll in a reduced-fare program for seniors and low-income residents.

In the first five months of the program, 578 of the 852 people cited for fare evasion paid a fine; 91 completed community service; 183 people enrolled in the reduced-fare program; and 196 successfully challenged their citations by proving they had a valid form of fare (like a monthly pass) but didn’t have it on them at the time of the citation.

The new arrangement was the result of changes in state law that both OPAL and TriMet take credit for shaping. Fleek says the changes came because lawmakers were already addressing transportation funding, and transit advocates wanted to address a long-standing concern from minority riders.

“We have heard time and time again about people being targeted. Fare inspectors came right toward them. People of color were being targeted,” Fleek says. Those encounters could have major consequences because of the way laws were written at the time, he adds.

“In front of the legislature, we wanted to be sure [lawmakers] understood our members were bearing a huge burden. The punishments didn’t fit the crimes. ‘Interfering with public transit’ was a Class A misdemeanor, the same as a DUI. And ‘interfering with public transit’ could be anything, including fare evasion,” Fleek says.

The legislature lowered the penalties for interfering with public transit.

TriMet denies that its fare enforcement practices disproportionately affect minority riders. It points to two studies it has commissioned that say that the disparities in citations and other punishments can be explained, in part, by higher levels of fare evasion by black passengers and a disproportionate number of repeat offenders who are black.

But TriMet agreed to the changes in fare evasion policy in response to concerns from the community and the agency’s board of directors, says Roberta Altstadt, a TriMet spokeswoman.

“With fare evasion citations being handled by the county courts, people were having challenges getting jobs, renting housing and enrolling in the military because the citations would show on a background check,” she says. “We did not want our fare enforcement to be overly punitive, rather to have it fit the violation and encourage people to change unwanted behavior. Our aim is to get people to pay their fare, not unnecessarily funnel them into the judicial system.”

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