Washington DC’s City Council recently voted 11 to 2 to remove criminal penalties for fare evasion on transit, and reduce the maximum fine from $300 to $100. This makes the penalty for failing to pay a transit fare comparable to that of a parking ticket rather than a robbery. The legislation arose in response to research showing that stops and citations in DC have increased steeply in recent years, and that 91% of those cited are African American. Several Council members and WMATA itself disagreed with the decision, arguing that fare evasion is rightfully classified as a “theft of services,” and warning of lawlessness, increased evasion and revenue loss.

New York City Transit President Andy Byford revealed a similar line of thinking when he hypothesized that falling MTA ridership numbers could be due to a reduced criminal penalties for fare evasion. Last year, Manhattan’s district attorney Cy Vance stopped prosecuting most “theft of services” arrests, the single most common charge in Manhattan criminal courts at the time. According to a recent report from the Community Service Society, this has led to a 70 percent decline in Manhattan subway fare evasion arrests between the end of 2017 and mid 2018. This means less unnecessary incarceration and its accompanying loss of employment, housing and heightened risk of deportation for what many consider to be a “crime of poverty.”

Though speculation abounds, there is no evidence showing that lighter penalties for evasion will incentivize less payment or lead to greater revenue loss for transit agencies. On the other hand, there is plenty of evidence that criminal penalties for fare evasion make taking transit riskier for many riders, are expensive to enforce, and may discourage ridership.

An increasing number of agencies like San Francisco’s MTA, TriMet in Portland, and Seattle’s King County Metro are ushering a new paradigm by decriminalizing fare evasion and developing equitable fare enforcement strategies. Here’s why (and how) they did it:

Fare enforcement is likely to be discriminatory by race.

Studies in Washington DC, New York City, Portland, Minneapolis, Seattle, Los Angeles, and Cleveland have shown that fare enforcement disproportionately targets black and brown people, and that people of color face harsher penalties when they are stopped. The Community Service Society reported that in New York, people of color represent almost 94% of fare evasion arrests in the past year. Additionally, African Americans who were stopped in Brooklyn were 30 times more likely to be arrested for the infraction than white riders in Manhattan. In Washington, D.C., where roughly half of residents are black, a report found that 91% of citations and summonses were issued to black people. The report found that an astounding 46% of all citations were handed out to African American riders under the age of 25, including at least one seven year old. There is no evidence that black people evade fares at higher rates, but in both New York and DC cities, citations disproportionately occur at stations in black neighborhoods.  

The burden is higher for transit riders than drivers.

Public transit is often the gateway to opportunity, especially for those without drivers’ licenses, immigrants, and low-income residents. But for riders who struggle to make ends meet, evading a fare can present an enormous financial setback. In New York City, the penalty for fare evasion is arrest or a $100 ticket, while endangering the public by blowing through a camera-enforced red light only sets drivers back $50. If arrested and convicted for fare beating, riders can be charged with a misdemeanor. Riders who struggle to pay the fare are likely to avoid payment more than once and may accumulate multiple charges. One NYC judge decried the consequences thus:

“In many cases, the enforcement of low-level crimes sweeps New Yorkers into the system who have never been arrested before, giving a potentially life-altering criminal justice record to someone for a minor offense. Criminal charges can have serious consequences on employment, housing and potentially immigration status—particularly for those who are already poor. Offenses such as theft of services are also driven by deeper cycles of homelessness and mental illness that are only exacerbated by criminal charges and jail time.”

Conversely, when’s the last time you heard of someone going to jail for parking tickets, driving without a license or hitting a pedestrian (the latter happens but is very rare)?

Fare enforcement can be expensive, and does not decrease evasion.

Fare evasion generally ranges from around 1-7 percent of daily transit ridership. An abiding question is how much money transit agencies should spend to try to be at the low end of this range.

The Seattle-area King County Auditor’s Office released a report on King County Metro’s fare evasion tactics and stated in part that “Fare enforcement is an important and highly visible part of Transit’s RapidRide system, but Transit is not able to determine if it is effective. The direct costs of the current fare enforcement model are about $1.7 million per year. This includes over $300,000 in court costs to process evasion fines, the vast majority of which go unpaid.”

Strict fare enforcement also comes with other costs. Last year, a crackdown on fare evasion in Washington DC resulted in heightened assaults on bus operators over the fare. City Lab has found found that increases in bus operator assaults is one of the main reasons why hiring drivers has become so difficult for transit agencies across the country.

It puts immigrants at risk of deportation.

Cities, counties, and states across the country are increasingly declaring themselves “sanctuaries” now totaling over 200 cities and counties and seven states. This ideal means the jurisdiction promises to stop or limit cooperation with federal Immigration and Custom Enforcement (ICE) Agents regarding residents’ immigration status. Despite the trend, some transit agencies continue to place riders at risk of contact with ICE and eventual deportation. California’s BART is an exception, recently approving an agency-wide “Safe Transit” policy to mirror its’ local communities’ sanctuary city policies. Although ICE states that they don’t board public transportation unless they are in pursuit of a specific suspect, by arresting riders for fare evasion, transit agency police place suspects in court where ICE has legal standing to question riders’ immigration status. In 2017, a case unfolded in Minneapolis where an arrest from evading a $1.75 fare led to a 23-year old’s eventual deportation.

The good news is that enforcement *can* be conducted in an equitable manner.

Through a combination of incentives and penalties, transit agencies should create an expectation that riders will pay. But unlike enforcement of traffic rules, policing in transit systems has developed into a strategy that vastly exceeds the need to sustain an incentive to pay transit fares.

It’s critical that transit agencies make it as easy as possible to pay. Adopting a legible and transparent fare structure, with tickets and passes that can be purchased on a mobile phone or an easy-to-use and working machine, is paramount.  Bus systems should embrace proof of payment, with routine fare checks on board.

Fare inspectors on transit should undergo extensive, regular anti-bias and discrimination training. Sound Transit has a set route for inspectors in each car to prevent discrimination; SFMTA has trained its operators in de-escalation tactics. External accountability measures, like body cameras, should be in place for all fare inspectors and transit police, and police departments must be required to release data about arrests and citations (New York’s Police Dept faces such a requirement but is refusing to comply.)

And finally, the penalties for fare evasion should be set at rates commensurate with the crime. In Portland, TriMet offers community service as an alternative to paying fines. Agencies should develop discounted fare programs for low-income riders, and use interactions with non-paying riders as a chance to enroll them in the program, as TriMet does.