A Night in Jail Over $2.75

In 2017, Cy Vance, the Manhattan district attorney, pledged not to pursue criminal charges against those accused of not paying to use the subway, known in New York’s penal code as “theft of services.” He included an exception for “those individuals who pose a demonstrated threat to public safety,” according to his original announcement. Shortly after, Brooklyn District Attorney Eric Gonzalez said he would implement a similar policy.

“If someone is carrying a gun and they are evading the fare, that’s someone who should get arrested,” Vance told The Appeal in response to a question about why the exception exists. “There are going to be instances where people are stopped, where police have an indication that there is other criminal activity that is unrelated to the fare evasion that needs to be addressed.”

In effect, advocates say, the exception leaves room for New Yorkers to still be pursued for failing to pay the subway fare. And on July 20, Danny Frost, the director of communications for Vance’s office, tweeted that the policy not to prosecute fare evaders applies only to the city’s subway system, not to its public buses.

“We do not prosecute this very frequently, and when we do, our standard offer for a first or second arrest is an adjournment in contemplation of dismissal or a plea to a non-criminal violation,” Frost said in an email to The Appeal.

Last December, the Metropolitan Transportation Authority, which runs the city’s subways and buses, presented data that it says shows the number of people riding without paying has recently increased, costing the MTA millions of dollars. In June, Governor Andrew Cuomo, who oversees the agency, announced the addition of 500 police officers to the transit system, 200 from the NYPD, to enforce a crackdown. MTA officials have said that the increased presence of officers throughout the system, an action that Vance supported, is about “deterrence,” not making arrests.

But along with the exceptions to the original policy change, advocates worry that the increased police presence will only result in more incarcerated New Yorkers, more residents with criminal records, and more people who are punished for being poor.

“It’s not clear what exactly that enforcement will mean. And … it could mean very different things in different jurisdictions,” said City Councilmember Rory Lancman. “Depending on which borough you’re stopped in, you might find yourself spending the night in jail and having a criminal record for the rest of your life for not paying a $2.75 fare.”

Vance argued that he supports what he calls “effective deterrence”—the presence of officers in subway stations. “Having more individuals stationed around exit gates and physically around subway stations is going to act as a deterrent to individuals who think that they can walk through because no one is around,” he said. “I think their presence is going to enhance public safety and not necessarily result in more arrests.”

But advocates argue that a more effective solution would be to help make sure that people can afford the transportation costs—not to entangle them in the criminal legal system. “If the intention is to ramp up the stopping or summonsing of people who can’t afford to get on the subway but still need to get around the city, then [adding more police] seems to me to be a serious misuse of resources,” Matt Daloisio, an arraignment attorney with the Neighborhood Defender Service of Harlem, told The Appeal. “The money that’s spent hiring and training all of these officers could be put into a pool of money to subsidize transit access to people who can’t afford it.”

The number of arrests for fare evasion has fallen across all of the boroughs over the last few years, with Manhattan seeing the biggest decline. According to its own data, the NYPD has made 992 arrests citywide through the first quarter of this year. In the same period, NYPD officers issued nearly 19,000 summonses. In Manhattan, the NYPD reports making one arrest for every 46 summonses. Brooklyn reports 264 arrests, the second-highest number behind the Bronx.

Since 2017, when Vance and Gonzalez made their pledges, prosecutions in both boroughs have dropped. In Manhattan, 39 fare evasion cases were referred to the DA’s office last month and 15 in the first half of this month. Last year, there were 59 in June and 50 in July, compared with 689 in June 2017 and 507 that July. According to data that Gonzalez’s office shared with The Appeal, it pursued 23 theft-of-services cases last month, compared with 161 in June 2018 and 340 in June 2017.

“We now only put through cases when we believe the defendant poses a potential risk to public safety,” Oren Yaniv, director of communications for the Brooklyn DA’s office, said in an email. “We continuously re-evaluate our policies to ensure they make a meaningful impact and expect to see further decline as we push more cases out of the criminal justice system.”

But even if the increased enforcement results in prioritizing summonses over arrests, there would still be more people getting tangled up in the criminal legal system simply because they can’t afford the fare. “Someone who can’t afford the subway is now being forced to take time out of looking for work or working … to [go] to a court date where they may or may not have a fine imposed on them that they may or may not be able to afford,” Daloisio said. It only gets worse if they can’t, for whatever reason, make it to court. “Now you have a person with an open warrant,” he said. “Any other contacts they have with the police … it now becomes an arrestable offense. People risk ending up with criminal records or adding to criminal records, which have all sorts of collateral consequences.”

Even a situation that would normally result in a summons can escalate and lead to more serious charges. In one recent case Daloisio witnessed in arraignment, a young woman hopped a turnstile and then was pulled off the train by a police officer. She was charged with resisting arrest and spent the night in jail. “She came through the whole system essentially because she didn’t have the $2.75 she needed to get on the subway,” Daloisio said.

The effects from the focus on fare evasion will not fall evenly across city residents, either. In a report that the Community Service Society of New York released at the end of 2017, the organization found that young Black men made up half of all fare evasion arrests in Brooklyn. The report also shows that arrests were most concentrated at stations near poor, Black neighborhoods.

But the overall lack of data makes it difficult to impossible to know how the enforcement of fare evasion has changed across the city. “We don’t have any way to measure what they’ve done to ramp that up,” said Harold Stolper, senior economist at CSSNY. “We just see the enforcement actions that result.” The City Council passed a law in 2018 requiring the NYPD to report quarterly information on fare evasion enforcement across the city, but the NYPD has only been releasing detailed demographic information for some stations. In addition, the department doesn’t clarify which stations it’s referring to in its data—there are several stops along 125th Street, for example. So there’s no way to systematically track arrests and summonses over time. Lancman has filed a lawsuit against the mayor and police commissioner to release the full data.

But even so, people of color still appear to be disproportionately targeted. “Even as arrests have gone down, the racial disparities among those arrested have not changed at all,” Stolper noted. Looking at the limited NYPD data, he found that 90 percent of those arrested were people of color, as were about three-quarters of those who received summonses.

Lancman said: “I would have liked to have seen a very clear statement [from] the MTA that this new enforcement strategy is going to be focused on deterrence and civil consequences rather than criminal consequences. I think that was left ambiguous.”

In December, the MTA released a report showing a big increase in fare evasions last year, which the agency says amounted to a $215 million loss. “The period of reduced overall enforcement actions corresponds with the rise in fare evasion,” the report said. However, the MTA did not release reliable information on the methodology behind its data. A thorough accounting of fare evasion would have required looking at a representative sample of stations and watching what took place at the same time of the day and same time of the year over time. It’s not clear whether the MTA did that; the slides simply say that its staff visited “several assigned subway stations/bus routes each day” consisting of 180 stations and 140 bus routes each quarter. The agency did not respond to a request for more information on its methodology.

“We’re not in a position to either agree or disagree with that claim based on the information that they’ve put out,” Stolper said. Either way, he added, “I don’t think fare evasion is the first factor that’s holding back the MTA from providing better service.”

Ben Fried, communications director for the public transit advocacy foundation TransitCenter, agreed. “I definitely don’t think fare evasion is the top budget issue,” he said. “Not by a long shot.”

Even though advocates acknowledge that the system lost $215 million to fare evasion, they argue that it’s a relatively small sum. The MTA’s operating budget in 2018 was $16.7 billion, of which about $8.8 billion goes to New York City Transit and the Staten Island Railway. “There are deeper pockets we should be looking to than the pockets of the poor when we talk about balancing our transit budget,” said Danny Pearlstein, policy and communications director at Riders Alliance.

“This is a political fix,” Pearlstein argued. “Fix the subway first, fix the MTA first, and then come back and see whether riders occasionally slip through the cracks.”

Last year, the city passed a budget that included funding for half-priced subway cards for low-income residents, a program known as Fair Fares. Advocates had expected that the 800,000 New Yorkers who live below the federal poverty line would be eligible for the porgram, but only 30,000 people were eligible when the program began in January. Mayor Bill de Blasio and City Council Speaker Corey Johnson have since committed to expanding the program to all New Yorkers living below the poverty line by January 2020. So far, it’s off to a slow start: The city has enrolled only about 60,000 people.

“For almost anybody who jumps a turnstile or doesn’t pay a fare, it’s a poverty issue, not a criminal justice issue,” Lancman said. “We should be fully implementing and expanding the Fair Fares program that the council established last year.”

Advocates also contrast the way the city handles those who fail to pay for public transit with how it handles those who fail to pay for parking or for bridge and tunnel tolls. People who don’t pay for street parking in downtown Manhattan, for example, only face a $65 fine; farther north on the island and in the other boroughs, the fine is just $35. People who can’t pay the toll to enter the city through a bridge or tunnel have 15 days to mail in the amount without additional penalty. Beyond that time, the penalty for nonpayment is a fine of $50 to $100.

“If you don’t pay tolls, you’re basically given the benefit of the doubt,” Stolper said. “You’re allowed to pay after the fact and there’s never any criminal consequences.”

Other cities have taken different approaches to fare evasion. Last year, Portland, Oregon’s transit system TriMet announced a new policy that gives riders 90 days to resolve citations directly with the agency before law enforcement can become involved. In those 90 days, riders have the option of paying a fine—$75 for the first offense—doing at least four hours of community service, or simply enrolling in the city’s reduced fare program if they qualify. A rider may also provide evidence that the citation was given in error and have it dismissed.

San Francisco and Seattle also have civilian fare enforcement, rather than relying on the police. Both cities offer nonmonetary options, such as community service, to resolve a citation.

“The move to decriminalize fare evasion is happening across the country,” said Hayley Richardson, senior communications associate with TransitCenter. “We want to be on the cutting edge of things here in New York.”