Today, the District of Columbia City Council is expected vote on a bill that would decriminalize fare evasion on the city's buses and trains. The measure is likely to pass, which means people who ride the bus or train system without paying can be cited for a civil infraction and fined $50, but can no longer be subjected to arrest, 10 days in jail, or fines of up to $300 simply for evading a fare.

The city's transit agency—the Washington Metropolitan Area Transportation Authority (WMATA, or simply Metro)—argues the change will only encourage already-rampant fare evasion. Civil rights groups counter that the current penalties are unjust, and enforced in a racially-discriminatory manner. In this rare instance, everybody's a little bit right.

Using data provided by WMATA, the Washington Lawyers' Committee for Civil Rights and Urban Affairs reported in September that 91 percent of people stopped for fare evasion were black, and that 30 percent of fare evasion stops took place at just two stations with large numbers of black riders: Anacostia in Southeast D.C. and Gallery Place in the city center. (D.C.'s Metro system has some 91 stations.) Supporters of the bill have argued that enforcement of the current law disproportionately affects black people and are an example of over-criminalization.

"The criminalization of minor, unwanted conduct is significantly more harmful than the failure to pay a $2 fare," argued Councilmember Charles Allen (D–Ward 6), who chairs the council's Judiciary Committee. "Fare evasion do not pose a threat to public safety—and criminalizing such offenses in fact makes communities less safe and erodes trust in law enforcement," said Nassim Moshiree, policy director of the D.C. ACLU, in an October statement.

Metro, meanwhile, claims the system cannot afford not to punish fare evaders. The agency says its bus system alone loses $25 million annually as a result of fare evasion, and Metro Board Chairman Jack Evans (who also sits on the D.C. City Council) estimates an equivalent amount is lost to fare evasion on its rail system, for a total of $50 million lost annually. Metro also claims that the current penalties aren't that punitive, and that 92 percent of fair evasion stops result in only a fine or warning; while the 8 percent of fair evasion stops that result in an arrest are often the result of a suspected fair evader having an open warrant, committing a further offense while being stopped, or refusing to provide identification.

"Decriminalizing fare evasion in the District would be unfair to the overwhelming majority of Metro riders, including those of limited means, who pay their fares," reads a letter from Metro's executive board to the D.C. City Council. "Any increase in fare evasion as a result of a change in law in the District would create additional requirements for subsidy increases or fare hikes."

Critics of decriminalization are right to point out that fair evasion is a form of theft, and civil libertarians are right to note that treating fare evasion like we would any other theft disproportionately affects D.C.'s low-income residents and contributes to a self-perpetuating cycle of poverty and petty criminality. But the current system is not working. As with most criminal behaviors, it's highly unlikely that fair evaders understand current penalties chapter and verse. That most fair evaders are not stopped at all, or are often let off with just a warning, perpetuates the confusion around the seriousness of the offense.

What's more, Metro says it almost never arrests anyone now for actually evading fares (only for having open warrants or some other offense), so it's not clear how decriminalization puts the agency in a worse enforcement position. Metro officials have said that they might not be able to conduct background checks on those they are detaining for fare evasion if it's only a civil infraction.

Ultimately, I think a lot of this dilemma would be solved by making Metro stations a lot more secure. It is incredibly easy to vault Metro's rainbow-style turnstiles or simply walk though unlocked (and often unwatched) emergency gates. Full-height turnstiles and more closely guarded emergency gates would help to reduce fare evasion. Buses are a more difficult animal to tackle, but San Francisco's transit agency has had some success reducing fare evasion on its buses by creating off-board payment options.

Getting rid of the jail sentence, developing a system for collecting on fines, and making it a harder offense to commit in the first place seems like the best way to balance civil liberties concerns with the needs of a (partially) user-fee funded transit system.

The decriminalization bill, initially introduced by Councilmember Trayon White (D–Ward 8) in July 2017, has the support of 11 of 13 D.C. city councilmembers. A final vote is needed to send the bill to the mayor's desk for signing.