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#SwipeItForward & the Decriminalization of Farebeating in New York City

Activists in New York City are engaging in profound acts of resistance against over-policing in the subways. Politicians are listening, but are they really hearing them?

If you are a New Yorker who commutes by subway, perhaps you have seen them in the last two years: activists gathering at subways stations and offering free Metrocard swipes as people approach the turnstiles. As they “Swipe It Forward” in neighborhoods with high concentrations of people of color and immigrants, these members of a coalition of grassroots groups hand out flyers about broken windows & quality-of-life policing, drawing attention to the widespread use of arrests, summonses, and criminal prosecutions against people of color for turnstile jumping, walking through exit gates, and other methods of taking public transportation without paying the $2.75 fare.

Swiping It Forward is legal. The terms of service of an unlimited Metrocard do not preclude swiping someone else in after your own trip is finished. And therein lies the profound power of the practice: through a legal act of kindness, communities of color engage in direct resistance to New York Police Department (NYPD) practices by removing the legal justification for a police officer to stop, search, ticket, or arrest a poor New Yorker who has entered the subway without paying.

After the declared end of stop-and-frisk in 2014 with the election of Mayor Bill de Blasio, the primary mechanism of police contact with poor and minority New Yorkers is through targeted arrests for low-level quality-of-life offenses like turnstile jumping, or theft of services, a misdemeanor punishable by up to a year in jail. In 2016 alone, there were almost 27,000 NYPD arrests for theft of services, almost 92 percent of which were of people of color. Theft of services is the second-most common charge at both arrest and criminal court arraignment throughout New York City, and can lead not only to up to a year in prison, but also to possible deportation and other collateral consequences.

But even if an arrest does not lead to a ticket or prosecution, the NYPD practice of staking out subways stations (often by hiding behind polls or doors) allows them to stop, frisk, and search people who enter without paying, potentially leading to the use of force as well. According to a report from the Inspector General for the NYPD, quality-of-life summonses and arrests are concentrated in precincts with higher proportions of residents of color, males aged 15–10, and residents of public housing. In short, quality-of-life policing provides constitutional cover to the mass policing of people of color in New York City.

Swiping It Forward takes away this power, if only temporarily. Without probable cause to believe a crime such as theft of services has occurred, a police officer cannot constitutionally stop, frisk, or search someone. I have written about the ways in which such communal acts of intervention can change the power dynamics between the police and poor people of color. Like mass bailouts or organized cop-watching, the practice of Swiping It Forward is a form of democratic intervention in everyday criminal justice from the bottom up. The intention of these movement actors is not simply to help individuals get on the subway without paying, but also to disrupt the normalcy of arrests. The practice lays bare the ways in which those arrests function to perpetuate structural inequalities along lines of race and class. Even the motto of #SwipeItForward — “If you See Someone, Swipe Someone” — reclaims the power of ordinary people to help each other: here, not by reporting suspicious people to the police (the purpose of the MTA’s slogan “If you See Something, Say Something”), but rather by taking away the ability of the police to stop and arrest people in the first place. As one activist explains, “The beauty of this action is that the cops can’t do anything about it . . . it’s still resistance, but it’s within the law, so they’re just stuck.”

Politicians have responded to these acts of resistance. The summer of 2017 has seen a series of mixed reactions to the growing discontent with the criminalization of farebeating in New York City. Manhattan District Attorney Cy Vance and Brooklyn Acting District Attorney Eric Gonzalez have both announced that they will stop prosecuting many theft of services cases in criminal court. And two state lawmakers from Brooklyn have announced their intention to introduce legislation in Albany that will make farebeating a non-criminal offense punishable by a $100 fine. (Specifically, they would remove subways, buses, and railroads from the current theft of services statute, leaving in place the existing civil offense.) As State Senator Jesse Hamilton stated in a report released in conjunction with the announcement, “criminal records and jail time should not be the result of an inability to pay a transit fare.”

But will these responses truly change the criminalization of poverty in New York City? The activists from the Coalition to End Broken Windows, the co-organizers of #SwipeItForward, think not. They are frustrated that the District Attorney proposals would maintain state supervision and punishment of poor people for their inability to pay subway fares, through either civil summonses or “diversion” programs. Under Vance’s plan, for instance, the office will only charge people with theft of services if “there is a demonstrated public safety reason to do so,” and otherwise will offer those arrested for theft of services “pre-arraignment intervention opportunities,” including arts-based programs for youth. What local District Attorneys have not proposed, though, is simply declining to prosecute such arrests without required programs, fines, or interventions.

Activists also feel that the proposed state legislation to decriminalize farebeating does not go far enough. In a press release following the announcement from State Senator Hamilton, the Coalition to End Broken Windows said, “While ‘decriminalization’ is a sounder step than what city officials have offered, the Coalition rejects the notion that summonses or other non-arrest alternatives are an acceptable outcome to the issues that plague working people: thousands of us literally cannot afford public transportation.” (The Community Service Society of New York recently documented the struggles of the working poor to afford rising subway fares.) These grassroots groups who #SwipeItForward wonder: why not simply stop arresting poor people for their inability to pay?

Indeed, the proposed partial decriminalization of misdemeanors envisioned by District Attorney Vance, State Senator Hamilton, and others has a dark side: as Professor Alexandra Natapoff has argued, it can lead to a net-widening effect in which police feel free to arrest more poor people of color because they know that those arrests will not lead to jail or a criminal conviction. According to Natapoff, “decriminalization offers ways of maintaining, even expanding, the criminal system as a governance mechanism for a wide range of social behaviors and environments.” Of course, neither the state senate nor local district attorneys control the NYPD. And Mayor de Blasio, for his part, has doubled down on the criminalization of farebeating, declaring that “there’s no way in hell anyone should be evading the fare.” But in neither the proposed state legislation nor the new district attorney policies is even the suggestion that New York City should not use city resources to stop, detain, and process individuals for taking the subway without paying.

There is another approach, one that grassroots groups such as those that make up the Coalition to End Broken Windows are helping make visible. Instead of spending city dollars on stakeouts at subways entrances, we could instead invest in the futures of these same neighborhoods through other government services: free Metrocards for low-income New Yorkers, more public housing, better public education. This “Invest/Divest” strategy is echoed throughout the country by grassroots groups led by people of color demanding a transformation in how local governments prioritize spending in their neighborhoods. And meanwhile, in New York City, activists continue to #SwipeItForward, pushing us all that much closer to hearing their call to end the criminalization of poverty in New York City.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.