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Manhattan D.A. pledges to curtail prosecutions of subway fare jumpers, but it’s complicated

MTA Subway Turnstiles
Wikimeda Commons

Manhattan D.A. pledges to curtail prosecutions of subway fare jumpers, but it’s complicated

For decades people who’ve jumped over the turnstiles in the New York subway system have faced arrest and being charged with criminal “theft of services.”

But New York County District Attorney Cyrus Vance recently announced that his office would no longer pursue criminal charges against most people for fare evasion, and would instead seek to send them to a diversion program, which might include community service in exchange for dismissing the charge. Although the fuller details have not yet been announced, completion of diversion program might still prove to be onerous for some people who can’t afford the $2.75 to get on the subway.

Vance’s office charged over 9,600 people with fare jumping in 2016. Only assaults were prosecuted more frequently in Manhattan.

According to the New York Times: “Instead of being brought from the police station to court, those defendants generally will be diverted into community service or social programs, and if they comply, the fare-beating charge will be dropped, Mr. Vance said. An exception will be made only when the police have strong reason to believe that the defendant is someone who poses a risk to public safety, like a sex offender.”

New York Police Commissioner James P. O’Neill appears to have doubts, expressing concerns about what the new policy would mean for public safety. But if Vance’s office decides not to pursue a prosecution, and instead dismiss the charge, there isn’t much O’Neill can do about it.

As the Times explained, “Fare beating was one of the petty offenses enforced aggressively on the theory that doing so would curb more serious crimes.” That “broken windows” belief became popular in the 1980s and 1990s but has largely been discredited in the 21st Century.

Under former Mayor Rudy Giuliani, New York was one of the leaders in pursuing minor crimes like public urination, fare jumping, and panhandling. These efforts led to a surge in people being locked up in jails and prisons, especially young people of color and the poor.

“For too long, prosecution of fare evasion as a crime has disproportionately impacted people of color, bogged down our courts, and even put immigrants at risk of deportation,” said Councilman Rory I. Lancman of Queens in an interview with the New York Times. ”Diverting fare evasion cases away from the criminal justice system is a smart and sensible policy.”

Acting Brooklyn District Attorney Eric Gonzalez said he intended to implement a similar policy and Queens District Attorney Richard Brown said he’d “monitor” what Manhattan was doing.

But while Vance has received praise for his action, an article in The Village Voice questioned whether the district attorney had missed the most important issue: the fact that many can’t afford the $2.75 for a fare in a city where the subway is usually the most efficient way to travel.

“D.A. Vance’s move is indicative of a growing awareness that we can’t arrest and prosecute our way out of all our social problems,” said Alex Vitale, a Brooklyn College professor who studies criminal justice in an interview with the Village Voice. “But by relying on diversion and other forms of supervision, they’re holding on to the idea that there’s something wrong with people who do things like jump the turnstile, when the problem is that public transit can’t be afforded by large swaths of the public anymore.”

Some of the diversion programs that fare jumpers will be required to go into could be more onerous than being criminally charged, and that won’t solve the existing problem, said Jeffrey Fagan, a professor at Columbia Law School who focuses on criminal justice issues.

Multnomah D.A. quietly imposes significant policy change concerning police use-of-force investigations

Multnomah D.A. quietly imposes significant policy change concerning police use-of-force investigations

Police accountability advocates in Portland, Oregon celebrated a rare victory last October when former mayor Charlie Hales renegotiated the city’s contract with the Portland police union. Though many details of the negotiation were criticized, Hales did succeed in getting the union to strikethe long-held, controversial 48-hour rule that allowed officers involved in fatal shootings to wait two days before making a statement to internal affairs.

DA Rod Underhill
Office of the Multnomah Co. District Attorney

But Hales’s victory was a flash in the pan. On Thursday, current Mayor Ted Wheeler announced that Multnomah County District Attorney Rod Underhill’s office won’t prosecute cases in which an officer was compelled to give their account of a shooting to internal affairs immediately after it happens, according to the Willamette Week. The policy change stems from a memodrafted by Underhill’s office in March that advises the police department not to compel any statements from officers involved in “use of force events” that result in death or serious physical injury until after the criminal investigation has closed — a process that often takes weeks. Underhill’s office concluded that under existing Oregon law, forcing officers to make a statement while the criminal investigation was ongoing would either result in them receiving immunity from prosecution or violate their “right to remain silent” under the Oregon Constitution.

The memo wasn’t made public for months, raising questions about the process used by Underhill’s office to reach this conclusion without any public input.

“As the elected D.A., he should be sensitive to the tensions that exist in Portland between the police and the community,” Alice Lundell, communications director for the Oregon Justice Resource Center told In Justice Today. “We would have liked D.A. Underhill to be more open with his constituents and to have released the memo to the public in March when it was drafted.”

Reform advocates argue that delaying an interview with an officer involved in a fatal shooting may ultimately taint the statement they give. Given a longer time to review the incident and go over it with peers, an officer may be more likely to fabricate parts of their statement or forget critical parts of what happened. Police unions, which generally support the 48-hour rule (which exists in multiple other states), tend to argue that after a traumatic event like a shooting, an officer is more likely to give an inaccurate statement because of the stressful experience if he or she is forced to immediately recount it to internal affairs. The science behind that theory is contested.

Underhill serves a community that is, like many others across the country, at a critical point in police-community relations. Portland police have repeatedly responded to peaceful protests since Trump’s election with riot gear and militarized force, fostering a growing lack of trust between the police force and the community they serve. For years prior to Trump’s election, the police department and criminal justice system more broadly has disproportionately impacted and ensnared black Portlanders. Black people make up just under 6 percent of the county’s population, but they represent 27 percent of the county jail population. The broader community’s apparent hesitance to address the state’s history of state-sanctioned racism, and how that racism reverberates today, has also increased tension.

Amidst these strains on the community, Underhill’s stance on the 48-hour rule—and the fact that his position was seemingly kept from public view for some time — is likely to further dampen the spirits of those pushing for police reform, and engender greater distrust in the local criminal justice system.

“The potential for further damage to relations between the police and the community is very real,” says Lundell. “Portlanders fought hard to end the ‘48-hour rule.”

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In Minneapolis, a fatal police shooting raises important questions about body cameras

Original photo by Flickr user northcharleston. Photo was modified for this article.

In Minneapolis, a fatal police shooting raises important questions about body cameras

Justine Damond called 911 Saturday night because she was concerned about a possible assault in the alleyway behind her home. For reasons that remain unknown, she was shot and killed by police after they arrived to investigate the incident. So far police have offered no explanations for the shooting. The officers’ body cameras were off and the car’s dash camera was not in a position to capture the incident, which allegedly occurred while the officers were still in their car.

Minneapolis implemented a department-wide body camera policy late last year. It requires that officers activate their cameras in a wide range of circumstances including vehicle stops, pursuits, and all critical incidents. Responding to a 911 call regarding an alleged assault should clearly fall within those guidelines. The events leading up to the use of force can be crucial in determining the state of mind of officers and thus the “reasonableness” of their use of force — the crucial legal standard in such cases.

This is not the first time officers failed to have their cameras on in a fatal encounter. Last year police in ChicagoCharlotte, NC, and Washington, DC all failed to have their cameras on in what turned out to be deadly encounters. The ACLU found that since 2014, there have been 14 such incidents. The Minneapolis policy, like most, calls for discipline of officers who fail to properly activate their cameras, but such discipline has been slow to materialize and the consequences have been minimal. In Denver, for instance, officers get only a verbal warning for a first failure, and one officer found guilty of violating the policy a second time was only penalized one vacation day. Meanwhile, a recent audit in Denver, found that only 1 in 4 use of force incidents was captured by an officer’s camera.

Even when we have video of questionable police shootings, it often fails to produce accountability. After Philando Castile was shot and killed in a Minneapolis suburb last year, body camera footage was released. The officer was still acquitted of all charges.

Accountability is supposed to be the primary purpose of body cameras. In practice, however, body cameras are not generally serving that function, having been overtaken by police priorities such as surveillance and evidence collection.

The public has been asked to give up a great deal of their privacy in return for the alleged accountability enhancements provided by the widespread use of these cameras. In many places there are no restrictions on the use of these cameras to gather intelligence, surveil first amendment activity, or share footage with other law enforcement agencies. In addition, a recent report by NPR showed how police routinely release footage that enhances their public image, while refusing to release footage to those who appear in it and have concerns about police actions.

We need to rethink the current balance between surveillance and accountability in the use of these cameras to ensure that the enhancement of police surveillance powers is in fact offset by greater public accountability. If not, then we should call into question whether body cameras should really be a part of any serious police reform agenda.

Alex S. Vitale is Professor of Sociology and Coordinator of the Policing and Social Justice Project at Brooklyn College. He is the author of City of Disorder: How the Quality of Life Campaign Transformed New York Politics and the forthcoming The End of PolicingThe views and opinions expressed in this article are Professor Vitale’s and do not necessarily reflect the views of the Fair Punishment Project.

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