The D.C. Council gave final approval this week to a measure decriminalizing Metro fare evasion, paving the way for fare-jumping to become a civil offense punishable by a $50 fine in the District.
The measure passed amid staunch opposition from Metro and its board, which argued the transit agency loses more than $25 million a year to fare evasion and that lessening the penalties would only exacerbate the problem and lead to more crime. Council members and activists rejected that argument, saying decriminalization was an important step toward addressing disproportionate policing of African Americans who use the transit system.
Much of the debate centered on questions of race and class, pitting key city officials and Metro leaders against civil rights activists and advocates for police reform, who argued too many D.C. residents are saddled with criminal records — and thus deprived of opportunities for jobs, housing and loans — for neglecting to pay a $2 fare.
The criminal penalty for fare evasion includes arrest, a fine up to $300 and up to 10 days in jail. The bill’s backers argued that the arrest records and penalties — whether on the lower end usually issued by Metro or up to the maximum — carry reporting burdens that can limit opportunities for those who receive them.
“There are real life consequences that we cannot gloss over, we cannot brush aside, and this law aims to fix that,” said Council Member Charles Allen (D-Ward 6), who championed the bill introduced by Council Member Trayon White Sr. (D-Ward 8). “I want a high-functioning Metro system but I want a fair system.”
D.C. Council member Jack Evans (D-Ward 2), who also is Metro board chairman, and Council Chairman Phil Mendelson (D) were the lone dissenting votes.
“We are extremely disappointed with the Council’s vote to decriminalize fare evasion, which we believe will have significant safety and financial consequences for the region,” Metro spokesman Dan Stessel said in a statement. “We hope the Council will revisit this issue once these impacts are understood."
The agency indicated the decision would not immediately affect how Metro Transit Police enforce fare rules, saying that in the interim police will “continue to do everything within their legal authority to protect our customers and employees.”
The office of Mayor Muriel E. Bowser (D) did not endorse the council’s action, but said it didn’t expect to levy a veto either. “We have not received the final legislation from the Council nor do we anticipate a veto,” the office said in a statement. “We do not believe the legislation makes us safer or stronger and hope the Council will immediately act on items that will, such as Sexual Assault Victims' Rights Amendment Act 2.0 and the Second Chance Amendment Act of 2017.”
Proponents of the bill, the Metro Fare Evasion Decriminalization Amendment Act of 2018, pointed to a recent report from the Washington Lawyers' Committee for Civil Rights and Urban Affairs that found between January 2016 and February 2018, 91 percent of Metro Transit Police citations and summons for fare evasion were issued to African Americans. The report found that fare evasion enforcement has been on the rise in recent years, and argued the locations where enforcement was most frequent — such as the Gallery Place and Anacostia stations — served a high proportion of African Americans, suggesting targeted policing.
“That is a problem,” Council member Robert C. White Jr. (D-At Large) said, referring to the 91 percent figure. “I’m sad that’s Metro’s losing money, but I’m more sad about what’s happening to black people.”
Metro argues the stations cited are simply busier and higher crime areas that require increased enforcement. The transit agency provided data this week showing its highest enforcement areas are Gallery Place, Anacostia, Columbia Heights, Pentagon City and Southern Avenue stations. Bus routes with the highest proportion of fare evasion include the W4, X2, 92, B2 and 70; the W4, the worst offender, has had 560,000 incidents of fare evasion since January, nearly 37 percent of its 1.5 million trips.
(Metro says fare evasion data is more readily available for buses because drivers have a button to log every instance where passengers fail to pay.)
Allen argued the penalty is disproportionate for the offense, and could have a lifetime impact for those who are cited, the vast majority of whom are black. He noted Metrobus riders, who he said routinely evade paying the fare by scanning SmarTrip cards with insufficient funds but are not cited.
“It would be easy to criminalize very bad behavior we don’t like because we know we don’t do it, but what if it happened to you?” he said. “There are serious real life consequences that come with misdemeanors and just because I don’t have that burden doesn’t mean that law is just.”
Meanwhile, data cited by council members show fare evasion arrests, citations and warnings have surged in recent years — from 4,000 in 2013 to 15,000 by 2017. The crackdown coincided with steep revenue shortfalls that left Metro dipping into capital funds to support its operating budget. The Lawyers' Committee report said those stopped for fare evasion included children as young as age 7.
The Metro Board cited revenue as a key reason fare evasion should not be decriminalized in a letter to the D.C. Council arguing against the measure, noting 80 percent of those losses stem from the District.
“The Board is interested to know how the Council would propose to offset the tens of millions of dollars of projected additional expense for Metro in FY2020 without shifting the burden of subsidy increases to jurisdictions outside the District of Columbia.”
Fare jumping is a problem in many transit systems and there are similar debates that enforcement has a disproportionate impact on low-income communities and people of color. The District’s decriminalization bill coincides with a push to crack down on fare-beating in New York City, where, according to a report in the New York Times this week, nearly four percent of subway riders fail to pay their fares. Combined, fare evasion on the city’s subway and buses costs about $215 million a year, according to transit agency leaders cited by the Times. New York leaders have resisted calls to decriminalize fare evasion, though the city attorneys office said this year it would stop prosecuting fare-jumpers in the most cases.
Metro posits that increased enforcement against fare evasion has led to a reduction in more serious offenses, owing to the police presence and the proportion of fare evasion stops leading police to more severe offenders.
For example, the board argued, while 8 percent of fare evasion stops lead to arrests according to current figures, most of those arrests resulted not from the initial fare evasion charge but rather from existing warrants for other offenses — a further crime such as assault on a police officer, or failure to produce identification. Activists argued that the police argument is a flawed line of thinking.
“#WMATA insists keeping fare evasion a crime will prevent more serious crime,” tweeted the D.C. chapter of Black Lives Matter, sharing a link to a Frontline report on the subject. “This is the essence of ‘broken windows policing,’ and here’s why it doesn’t work.”
Evans said a civil citation akin to a parking ticket would be essentially unenforceable, because there is no mechanism — such as an inability to register a vehicle for unpaid parking tickets — mandating payment. Allen has said the majority of people do pay and in cases where they do not, the courts can mandate payment.
“This is the problem we have. We have a big problem with fare evasion at Metro. And when it is understood that you will just get a civil citation that is largely unenforceable, you have a higher incidence,” Evans said.
Mendelson offered an amendment that would keep the offense a criminal charge, but limit the fine to $50 and prohibit arrest; payment would not result in a conviction. It was roundly defeated — by the same margin as the final vote.
Council Member Mary M. Cheh (D-Ward 3) said labeling the offense “criminal” was not a necessary to ensure fare payment. She said Metro could better secure its fare gates or erect barriers to prevent fare-jumping, a suggestion Evans rejected and likened to “making Metro look like a prison.”
“If you want to be able to stop, if you want to be able to frisk, then own up to it," Cheh said of Metro. "But if that’s not it, then you don’t have a case.”
Groups that supported decriminalization, which also included the American Civil Liberties Union, cited “Broken Windows” which relied on the argument that enforcement of minor offenses could reduce instances of major crime, instead resulted in a disproportionately criminalized population and failed to increase overall safety.
The D.C. chapter of the American Civil Liberties Union applauded the Council’s action and criticized Metro’s arguments that decriminalization would make the system more dangerous.
The group’s policy director, Nassim Moshiree, called the council’s vote “a significant victory for criminal justice reform here in the District.”
The group also said it was troubled by Metro’s contention that a criminal penalty for fare evasion was a necessary pretext to police stops.
"This is a naked admission that our transit agency relies on pretextual stops and racially profiles riders, something that should trouble everyone, not just government officials,” the group said in a statement.