Will New York Stop Arresting People for Evading Subway Fares?

New York could be backing away from a key tool used in the “broken windows” strategy of policing: arresting people who jump subway turnstiles.

Two state legislators from Brooklyn recently proposed a law that would decriminalize the offense, the latest in a growing wave of local officials who argue that evading a $2.75 subway fare is no reason to land behind bars. Turnstile-jumping, or fare-beating, is currently considered a Class A misdemeanor, punishable by up to a year in jail. “No one should face the nightmare of arrest, a criminal record, loss of housing, or deportation over fare evasion,” said one of the bill’s sponsors, State Senator Jesse Hamilton, at a press conference announcing it last week.

Under the law, evasion would be considered a civil offense. Those caught would be charged up to $100, but their criminal records would not be affected; neither would their immigration status if they are undocumented.

It’s too soon to gauge the bill’s prospects, but it aligns with the policies of some city prosecutors: Last month, Manhattan District Attorney Cy Vance announced his office would stop prosecuting fare-beating, offering alternatives like community service instead of criminal charges. Acting Brooklyn DA Eric Gonzalez has said he will implement a similar policy. Those shifts follow the recommendation of an independent commission studying criminal-justice and incarceration reform in New York City, which argued that multiple minor crimes, including this one, should be treated as civil offenses.

Arresting fare-beaters has long been part of the broken-windows approach, where officers aggressively crack down on low-level, “quality of life” crimes in order to deter more serious offenses in the future. Put another way, police “emphasize the maintenance of order rather than the piecemeal pursuit of rapists, murderers, and carjackers.” That’s how The New York Times once described the theory, which was first detailed in this magazine in 1982. This style of policing was spearheaded in New York City by then-Mayor Rudy Giuliani in the early 1990s, and arresting fare-beaters has since been considered an important tool. Falling crime rates in the city have, in part, been attributed to broken windows, though those claims are widely contested.

The strategy’s critics are many. They’ve called for the New York City Police Department to deemphasize it, citing the disproportionate impact on low-income communities of color. Between January and late June, nearly 90 percent of the people arrested for fare-beating were black and Latino. And it’s often teenagers who don’t pay: According to Hamilton, 16- and 17-year-olds represented about 70 percent of arrestees last year. Detractors point out that while reduced fare is available to seniors and students of all income levels, no such discount exists for those living in poverty. “Access to public transportation means the opportunity for basic rights such as health, education, and employment,” said Scott Hechinger, a senior public defender at Brooklyn Defender Services.

Beyond the social-justice arguments advocates have used, there are pragmatic ones, too. For Vance and other prosecutors, eliminating evasion cases can help alleviate court backlogs and free staff to work on more pressing matters. Stopping the practice could improve city-police relations. And cases are also costly. Studiesestimate that the police and court expenses for each misdemeanor arrest come to over $1,000, which Hechinger said could be turned into transportation subsidies. “Instead of making the fiscally sound and just decision to help enhance access through reduced-fare Metro Cards or free Metro Cards, we do the opposite: We arrest; we lock people up,” he said.

Notably absent from calls for reform is Mayor Bill de Blasio, who in his 2013 campaign promised to mend police-community relations while at the same time criticizing NYPD practices. Some have since suggested he’s too eager to “get cozy” with the police, while others have said the relationship isn’t cozy enough.

De Blasio has taken some steps to rein in broken windows. For example, he signed legislation that went into effect in June requiring officers to use civil summons as a default approach for first-time quality-of-life offenders. But overall he has remained committed to the strategy, including arrests for turnstile-jumping. “There’s no way in hell anyone should be evading the fare,” he said at a press conference soon after Vance’s announcement, rebuking his policy change. “That would create chaos.”

According to the Times, three-quarters of turnstile-jumping cases in 2016 were resolved by civil summonses issued at officers’ discretion. Still, the infraction is so common that nearly 25,000 people were arrested citywide last year. In Manhattan, where turnstile-jumping is the most common charge in criminal court, nearly 10,000 people were taken to a precinct and booked. Those charged had a history of similar arrests, thus deemed a public threat by officers, or lacked a valid ID. According to a statement sent to me by the NYPD public-information office, the department is “actively exploring ways to address enforcement of low-level infractions through a variety of approaches including the issuance of summonses instead of arrests.”

Asked via email for the mayor’s reaction to the state legislators’ proposal, Press Secretary Eric Phillips replied: “When it comes to subways and turnstile-jumping, we think the NYPD’s extremely forgiving standard does a good job at this. As sympathetic as some defendants undoubtedly are, turnstile-jumping isn’t fair to hard-working New Yorkers who pay for the subway every day, and it isn’t conducive to running a safe, orderly transit system.”

The mayor, who is up for reelection this year, has come under increased scrutiny for his support of broken windows in the age of Trump, when federal immigration authorities have been empowered to send undocumented immigrants to deportation proceedings for even minor arrests. De Blasio has declared New York City a “sanctuary” for immigrants, but journalists, immigrants themselves, and advocacy groups have argued this status is in name only so long as low-level infractions are considered crimes.  

Bernard Harcourt, a Columbia University law professor and the author of Illusion of Order: The False Promise of Broken Windows Policing, said the proposed law to decriminalize fare-beating could function as a workaround. He was frank in his criticism of de Blasio: “Obviously, the mayor doesn’t have the spine to prevent the NYPD from enforcing the misdemeanor laws in this way,” he said. “It requires a change to the criminal statutes of New York.”