The D.C. Council is considering a bill that would decriminalize fare evasion on Metro. (Photo by Kate Patterson for The Washington Post)

Prompted in part by a disturbing recent study finding that nearly everyone being cited for fare evasion by Metro is African American, D.C. Council members are considering reducing the penalty for those who try to ride without paying.

Council members backing the bill, such as Charles Allen (D-Ward 8), are also concerned that treating fare evasion as a criminal offense is overly harsh. In theory, offenders could be left with criminal records, making it difficult to find a job or a get a place to live — over a $2-something fare, he said.

“I want the consequences of fare evasion to match the action itself,” Allen said in a recent interview.

But Metro worries that weakening the penalties for fare evasion will just lead to more people trying to ride for free.

“It is very safe to assume that without fear of any meaningful penalty, [fare evasion] would increase significantly,” Metro spokesman Dan Stessel said via email.

Under the bill, fare evasion would no longer be treated as a criminal offense, but as a civil infraction punishable by a fine, like littering.

Instead off facing up to 10 days in jail, a fine of up to $300, and a potential criminal record, as is the case now, fare evaders would face a maximum $50 fine.

The bill passed the council’s Judiciary and Public Safety committee unanimously on Oct. 4 and is expected to come to a full council vote by the end of the year, possibly as soon as this month.

One question, however, is whether people who evade fares would skip out on paying the fine as well.

Without the threat of jail, 75 percent of fines for civil infractions go into default, Deputy Mayor Kevin Donahue wrote in written testimony to the council last year, raising concerns about the bill.

The city’s treasury department does try to collect, said spokesman David Umansky. The city will not renew the driver’s licenses of people who owe fines, even if it’s for offenses that do not involve driving, like littering. Unpaid fines can be taken out of any city tax refunds.

And the city will also garnish wages — but only if the person who owes money asks it to do so, he said.

“The idea isn’t to send anyone to debtor’s prison,” Umansky said. “The goal is to get them to ‘yes.’"

But right now, there’s a simple incentive to pay the fine: You could go to jail if you don’t.

According to Metro’s website: “Failure to deposit collateral within 15 days from the date you received your citation will cause this matter to be presented to the DC Superior Court and will result in the issuance of a warrant for your arrest.”

Allen acknowledged Donahue’s concerns. “There may be issues to work through with citations and how it’s implemented,” he said. “But it’s not a reason to keep criminalizing fare evasion."

Indeed, he and other supporters of the bill cite a number of problems with treating fare evasion as a crime.

On Sept. 19, for instance, some bystanders at the NoMa-Gallaudet U station reported on Twitter that a group of teens were handcuffed and pepper sprayed by police after being stopped apparently for not paying.

And the reason police are amped up over fare evasion, ACLU of the District of Columbia policy director Nassim Moshiree said in an interview, is that it is a considered a crime. If it were considered a minor infraction, there would be fewer confrontations between police and riders, she said.

Heightening concerns further is that Metro has been cracking down on fare evaders. Citations and arrests for not paying fares have risen almost fivefold from 3,662 in 2014 to 15,348 last year.

Through September of this year, Metro reports 9,840 enforcement actions for fare evasion. That’s down from the 11,974 at the same point last year, but still on pace to quadruple the number from 2014.

Even more concerning is a report by the Washington Lawyers Committee Committee for Civil Rights and Urban Affairs in September, based on data obtained from Metro through public disclosure requests. It found that transit police stopped 30,000 people for fare evasion between January 2016 and Feb. 5, 2018. Ninety-one percent of the people given citations were African American.

Additionally, a disproportionate percentage of citations were issued in stations heavily used by young people of color, the report said. Though boardings at Gallery Place account for only 3.5 percent of all weekday boardings, according to Metro figures, the report said 15 percent of citations were given out at the station. The Anacostia station accounts for only 1 percent of all weekday boardings but 14 percent of fare evasion citations.

There are other things that Metro could do to reduce fare evasion — including some that it is already doing, says Greg Montross, policy director of the Stop Police Terror Project D.C., who testified at the October hearing.

For example, the swinging emergency gates next to the fare gates until recently did not secure. So in addition to people doubling up to get through the fare gate, or climbing over the gates, fare evaders would just go through the swinging gate.

In June, 2017, Metro tested securing the swinging gates at Gallery Place and Fort Totten. After finding that it reduced the number of people going through them, Metro has secured the gates at 44 other stations and added alarms in the station manager booths to indicate when a gate is not secure at a cost of $65,000 per station. Metro will be securing the gates at 37 other stations over the next year.

Stopping people for not paying their fares can lead to arrests for more serious crimes if there happens to be a warrant for a fare evader’s arrest, Metro transit police chief Ron Pavlik told the council at the hearing.

In an interview last week, Pavlik denied that police are emphasizing catching fare evaders at stations used by large numbers of minorities. He also said police are not targeting minorities. Unlike traffic stops, where there have been reports of police targeting drivers of color, transit police can only stop people they actually see not paying a fare.

Other ideas for enforcing fare collections, like randomly asking riders for proof they paid, have even more potential for racial targeting, he said.

A group of Superior Court of the District of Columbia defense attorneys, meanwhile, contests the idea that it’s important to enforce fare collection to catch people wanted for more serious crimes. They said in a letter to the council they see plenty of people who were arrested only for not paying their fare.

How many is unclear. Metro, in response to the Washington Lawyers’ Committee disclosure request, said there were 2,000 arrests between January 2016 and February 5, 2018 stemming from fare evasion stops, which can include other crimes.

“The experience of [Superior Court] attorneys is that direct fare evasions arrests are not unusual,” wrote the Superior Court Trial Lawyers Association in a letter to the council. “Quite the opposite, fare evasion is frequently the only basis for an arrest and the only offense charged.”

Metro’s fare increases have also made it harder for lower-income people, the bill’s proponents argue.

“We really need to address as a district how we are going make sure people can get to the grocery store or the doctor if you don’t have the luxury of taking an Uber or a Lyft,” the ACLU’s Moshiree said

Pavlik agrees that lower-income people have a harder time paying fares. But he said the solution is for cities served by Metro to subsidize fares based on income. Not to lower the penalties for not paying.

Stessel agreed: “If someone can’t afford groceries, we treat them with dignity and give them an EBT card [for food stamps] so that they can purchase the food they need at the checkout counter, like everyone else

“We don’t, on the other hand, tell them to just go ahead and shoplift because we won’t charge you with a crime,” he said.

Got a story about riding Metro or have a question? Send it to kery.murakami@washpost.com or @theDCrider.

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