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D.C. takes major step toward decriminalizing Metro fare evasion

But the transit agency opposes the move and critics say it is unclear how civil fines would be enforced

A Metro station
Lux Blue/Shutterstock

In the first of two required votes, a supermajority of the D.C. Council moved to decriminalize fare evasion within the Metro system last week. The 11–2 vote followed a contentious debate among lawmakers over whether it is fair that people who allegedly sneak past subway gates or onto buses may end up with criminal records. The debate also addressed issues of racial equity and policing, and in part revolved around whether fare evasion constitutes stealing.

Under the proposal that the Council initially approved, dodging Metro fares would become a civil offense with a maximum $50 fine in the District. While Metro claims it does not arrest people for fare evasion alone—often arrests in the transit system happen when a person has an outstanding warrant or commits a more serious misdeed, Metro says—current law allows for criminal charges for fare evasion that may result in 10 days of jail and $300 in penalties.

Proponents of decriminalization say those potential outcomes are out of proportion to the failure to pay to ride public transportation, and do not deter undesirable behavior. “There’s simply no evidence that criminalizing minor behavior we just don’t like, such as fare evasion, actually prevents future fare evasion,” said Ward 6 Councilmember Charles Allen, who chairs the Council’s judiciary committee, during lawmakers’ discussion on the measure on Nov. 13.

“An arrest, even if it’s not charged by the prosecutor, can turn someone’s life upside,” Allen added, citing the “collateral consequences” of having a criminal record, like discrimination in employment and housing. He said the vast majority of citations and arrests for fare evasion, including instances where stops escalated into police use of force, have affected black people.

Ward 2 Councilmember Jack Evans, who also chairs Metro’s board, and Council Chairman Phil Mendelson voted against the bill. Evans said Metro loses between $25 million and $50 million a year because of fare evasion, based on reports by bus drivers and estimates about incidents in the rail system. He also said civil fines would lack an enforcement mechanism.

“If you can just walk through the Metro gate, and we give you a civil citation, and there’s no method of us collecting, I am concerned—as is Metro—that as people realize they don’t have to pay their fares, more and more people just aren’t going to pay their fares,” Evans argued.

He compared fare evasion to petty theft. “If I go into the CVS right down the street and...I pick up a soda that costs $2, and I walk out the door, what am I doing? I just stoled [sic] a soda...and I could be arrested, I would be arrested for that,” Evans said. “Can you imagine if I stole something from CVS and I got a civil citation for that? That’s absurd.” (Of fare evasion, he said: “You might as well have reached over and grabbed my wallet and took $2 out of it.”)

At-Large Councilmember Robert White, who voted for decriminalization, stressed data on Metro fare evasion that Allen had brought up earlier. “Ninety-one percent of citations are issued to black people. If that doesn’t point to a real problem, then I don’t know what does,” he said. “We do have a social issue we have to confront, even if it’s not convenient.” Ward 1 Councilmember Brianne Nadeau echoed this concern and suggested that Metro “would do better to study why [fare evasion] is happening” than to “doubl[e] down” on a harsh policy.

Data on Metro transit police enforcement for alleged fare evasion, per D.C. Council judiciary committee report
D.C. Council

But Mendelson, the Council chairman, said he could not support decriminalization. “Fare evasion is theft, plain and simple,” he noted. “And we don’t or we shouldn’t decriminalize theft.” He added that, unlike consuming marijuana, which D.C. decriminalized a few years ago, fare evasion has a victim: the Metro system itself. The chairman said he preferred to keep treating fare evasion as a crime but reduce penalties to $50 at most with no jail time.

“‘People of color’ cannot be an argument,” Mendelson said. “[With] most of [the] criminal offenses in the District of Columbia, disproportionately people of color are arrested. That can’t be the argument because then we would have to look at [reclassifying] other crimes.” He called the bill “well-intentioned” but said it would not “prevent excessive enforcement” and recommended that Allen, as judiciary committee chair, mull options for record-sealing.

Ward 3 Councilmember Mary Cheh, who ultimately voted for the measure, agreed that the bill would not stop interactions between Metro transit police and alleged fare evaders from sometimes evolving into physical conflicts. “If there’s refusal to cooperate, the same kind of tension and engagement that has led to problems with a criminal citation will ensue with a civil citation,” she said. “It’s the encounter more than it is” the type of offense being alleged.

Ward 8’s Trayon White introduced the original version of the legislation last year. On Nov. 13, he mentioned a “high-profile” incident at the Congress Heights Metro stop where a man accompanied by his 1-year-old baby “was accused of fare evasion and in turn was arrested.”

Data on legal outcomes for alleged fare evasion, per D.C. Council judiciary committee report

Metro remains opposed to the measure, tweeting on Monday that from January to October 2018, there were more than 9 million instances of fare evasion on its buses, or roughly $25 million in uncollected fares when projected for the full year. Asked about the possibility of enforcement issues if the legislation becomes law, a spokesman for Allen says the Council may tweak the bill before second reading, and that the executive branch has discretion on how to implement it. Civil fines could be handled by the Office of Administrative Hearings.

The Council is expected to hold another vote on the legislation before the end of December. After that stage, it would head to Mayor Muriel Bowser’s office and to Congress for review.

Update, Nov. 29: The executive committee of Metro’s board has sent a letter to the Council expressing concerns about the decriminalization proposal, NBC4’s Adam Tuss reports. The letter, which comes days before District lawmakers could vote on the legislation for the final time, during a meeting scheduled for Dec. 4, argues that decriminalizing fare evasion “would be unfair to the overwhelming majority of Metro riders, including those of limited means, who pay their fares.” Evans, the chair of Metro’s board and the councilmember for Ward 2, is a signatory.

“Any increase in fare evasion as a result of a change in law in the District would create additional requirements for subsidy increases or fare hikes to support Metro’s operating budget,” the four-member executive committee writes. “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 [its fiscal year] 2020 without shifting the burden of subsidy increases to jurisdictions outside the District of Columbia.” (That fiscal year commences on July 1, 2019.)

The letter adds that Metro Transit police rely on fare-evasion stops to keep the system safe, and that if the D.C. bill becomes law, “it would create disparate consequences for the same action in the District, Maryland, and Virginia.” The letter also states that the transit agency is willing to work with D.C. officials on creating subsidized fare cards for low-income residents.