Nearly two weeks ago, Manhattan District Attorney Cy Vance announced, to much confusion and consternation, that his office would no longer prosecute subway farebeating. Vance made this change without consulting with the Metropolitan Transportation Authority, the principal victim of low-level criminals who decline to pay the $2.75 fare. He also surprised New York mayor Bill de Blasio, who has a stake in keeping crime down in the city. MTA officials and the mayor are right to oppose the poorly thought out and poorly explained change of policy. Deterring people from stealing from the MTA keeps mass transit safe and improves the lives of everyone who rides.
The DA’s reasoning is that this misdemeanor charge—called theft of services for transit—can carry a punishment of up to a year in jail. The misdemeanor conviction, so the argument goes, victimizes otherwise law-abiding people too poor to afford the subway fare, burdening them with a criminal record as they seek employment or housing. Fare cases, argues Vance, also consume justice-system resources that could otherwise go to prosecuting violent criminals.
The details, though, are anything but clear. The first element of confusion is that Vance’s office appears to be repeating a change announced last summer. Back then, Vance said that starting in the fall, his office would “no longer prosecute the overwhelming majority of individuals charged with theft of services for subway-related offenses, unless there is a demonstrated public-safety reason to do so.” Instead, the DA’s office would send offenders to a crime-diversion class, or agree to drop and seal the charges if the defendant stayed out of trouble. Now, though, Vance’s office is voicing its displeasure with the fact that the NYPD has continued to arrest turnstile-jumpers. But how can Vance deter people from farebeating through diversion or dropped charges, and see if this approach yields better results for everyone—particularly the public—if police never arrest fare evaders in the first place?
The second confusion is that Vance appears to be peddling a solution without a problem. Most fare beaters already avoid arrest. Last year, the NYPD made 17,840 theft-of-service arrests in the transit system. But it gave out 54,846 civil violations: a directive to pay a $100 fine to the state-run Metropolitan Transportation Authority or to show up at the transit authority’s civil “adjudication bureau” to have the violation dismissed. The civil violation does not carry a criminal record. According to these figures, then, 74.5 percent of fare-beaters never go through the criminal-justice system. Even an arrest doesn’t mean jail time; many offenders get fingerprinted at the police precinct and get a “desk appearance ticket,” which directs them to go, on their own, to the relevant borough criminal court for misdemeanor arraignment.
Most cases, then, are much like the one I witnessed at 10:30 last Wednesday night at the 50th Street Station on the C and E line in Manhattan. Two uniformed police officers stopped a young man who had tried to evade the fare. They politely but firmly directed him to stand with his back to the wall and asked him a series of questions. “Why’d you do it?” one of the cops asked him. The answer was the same as much else in life: “I don’t know.” After about 25 minutes, during which the cops determined that the young man wasn’t wanted for a larger crime, the cops left him on the platform with a civil violation and a friendly admonition that “it isn’t worth it.” Afterward, I asked the young man why the officers had targeted him. He shrugged. “I jumped the train,” he said.
Can New York reduce the number of people who have dealings with the criminal-justice system while simultaneously keeping crime down? A record-low crime period, such as we have now, is a good time to test that proposition. But before Vance made his announcement, New York police, prosecutors, and judges were already doing it: the numbers for fare-evasion arrests and summons have fallen, with arrests down by 27.5 percent and civil violations down 18.7 percent last year alone. In recent years, the police have made some incremental policy changes, including a new policy that allows a person carrying no identification to call relatives or friends from the police precinct to bring such ID.
Prosecutors already have vast discretion to recommend diversion or a non-criminal plea to a violation, and there was nothing preventing Vance from continuing to experiment incrementally with what works and what doesn’t. In 2016, as the New York Times has reported, only 320 people charged with fare evasion in Manhattan served a jail sentence, most for a few weeks. Vance hasn’t released any information about those cases to help the public understand whether the jail sentences were justified or not. Measures to avoid giving first-time, low-level offenders criminal records are increasingly common across the criminal-justice system. In Brooklyn criminal court last week, defendant after defendant facing misdemeanor charges, either for driving without a license or committing assault, pleaded down to a non-criminal violation of vehicle-code infraction or disorderly conduct. Low-level drug offenders, too, were promised sealed records if they attended a diversion class or stayed out of trouble, or both. Yet the Brooklyn DA has never announced that he won’t prosecute assault, illegal driving, or drug possession beyond small levels of marijuana. The threat of prosecution serves as a credible deterrent to repeat offenders and even to would-be first offenders unaware of this leniency.
The people who do get arrested and processed through Rikers Island for turnstile-jumping are particularly egregious cases. The government wants them for having previously failed to appear in court on other, more serious charges, or for serial turnstile-jumping. The deterrence of a civil fine or even a previous arrest has already failed. Advocates for the decriminalization of turnstile-jumping argue that arresting someone for failure to appear in court just punishes a poor person who couldn’t make it to court. Yet a person charged with such a crime should show up for his court date, rather than commit the same crime again.
Stopping people who have a habit of stealing from the MTA also yields bigger public-safety results. New Yorkers have understood how this works since 1991, when a new policy of stopping low-level subway criminals, implemented by transit police chief William Bratton, helped to reduce the number of far more serious felonies within months. Just last month, NYPD counterterrorism officers stopped a fare-beater and found a loaded revolver. The same week, officers separately caught someone wanted for murder in another state. Last year, the NYPD stopped nine fare-beaters who were carrying illegal firearms. The previous year, the police found 10 illegal guns through policing fare evasion. (Police officers removed an additional 16 guns last year from the transit system by other means, including stopping people for menacing or for stretching out across subway seats.) Opponents of this strategy say it’s a drain on resources to stop so many people for such a small number of weapons. Yet the reason for the stop is to punish and deter theft; finding the weapons is a happy byproduct.
Vance has said that his new policy won’t prevent police officers from arresting fare-beaters caught with guns. But the DA hasn’t specified how he defines a threat to public safety, and thus an exemption from the new no-prosecution edict. Last week, as police commissioner James O’Neill has pointed out, cops stopped a fare-beater with 52 previous arrests, including grand larceny—the theft of valuable property, often a passenger’s cellphone—within the transit system. Yet Vance declined to prosecute. It’s unclear how a habitual transit-fare evader is supposed to rack up a record of such transgressions—historically useful to police and prosecutors in other boroughs as they determine how severely to charge him for the next one—if he winds up not getting busted for the first or second offense. Is it that much better for a transit evader to pile up hundreds of dollars of civil fines that he cannot pay? If not, then what is the ultimate solution: opening the turnstiles to everyone?
The most specious argument against prosecuting repeat fare-evaders is that it punishes the poor. The $2.75 fare is a burden for poor people, yet New York has nearly 1.4 million poor adults, and millions more struggle to balance their budgets. Assuming that all transit-fare evaders are poor, the annual arrest figure implies that 1 percent of them, in any given year, are systemic transit thieves. The insinuation that some poor people can’t help but be chronic thieves is an insult to the far greater number of poor people who pay their fares.
Other public officials who have a responsibility to keep the city and its subways and buses safe have spoken out against Vance’s policy. “If someone is a constant recidivist or has done serious crimes, we have to have the opportunity to arrest,” Mayor de Blasio told WNYC radio host Brian Lehrer last week. “We cannot send the signal that anyone can evade fares on a regular basis. That is just not acceptable.” The MTA, too, is against the policy change. Chairman Joe Lhota wrote a letter to Vance noting that “fare-beating places a burden on law-abiding transit customers who DO pay the fare, including low-income citizens who despite financial challenges still respect the rule of law.” Lhota also noted that emboldened fare-evaders could pose a risk to transit workers; one killed a bus driver a decade ago.
Vance’s response to Lhota’s letter was troubling. The “criminal-justice system . . . should not be perceived as a collection agency for the MTA,” he said. But in deterring fare evasion through the criminal-justice system, prosecutors weren’t collecting revenue; they likely lost more than they collected. They were helping to keep everyone on the city’s subways and buses safe—and making people confident, as they pay for their rides, that the fare system is fair.