Statement on behalf of the
American Civil Liberties Union of the District of Columbia
DC Council Committee on Judiciary and Public Safety
Public Hearing on Bill 22-408, the "Fare Evasion Decriminalization Act of 2017"
Thursday, October 19, 2017
Nassim Moshiree, Policy Director
Good afternoon, Councilmember Allen and members of the Committee. My name is Nassim Moshiree and I am the Policy Director of the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our more than 20,000 members in the District of Columbia.
The ACLU-DC is committed to working to reverse the tide of over-incarceration, safeguard fundamental liberties, eliminate racial disparities, and advocate for sensible, evidence-based reforms of criminal justice policies. Today, I am testifying in support of Bill 22-408 the “Fare Evasion Decriminalization Act of 2017.”
Bill 22-408 “Fare Evasion Decriminalization Act of 2017
Bill 22-408 amends the “Act to Regulate Public Conduct on Public Passenger Vehicles” in the DC Code to makes violations of fare evasion a civil offense punishable by a fine of not more than $100. In doing so, the bill removes criminal penalties for fare evasion that currently subject violators to fines of up to $300, arrest, and imprisonment for up to 10 days. The ACLU-DC strongly supports Bill 22-408 as a smart, sensible, and necessary reform of transit fare and enforcement policies.
Recently, the DC Council introduced a resolution seeking to advance fundamental practices for equity and social justice in District-wide decision-making efforts by recognizing that this inequity exists with regards to race, economic class, and gender and by encouraging District leaders to take proactive steps to address this inequity.  We believe that the proposed legislation is in line with the goals of that resolution, and we support it for the following reasons:
I. Criminalization of fare evasion is significantly linked to criminalization of poverty.
Over the past several years, with declining ridership and significant service issues, fares for both Metro-rail and Metro-buses have continued to rise. Meanwhile, homelessness and income inequality have also continued to rise in the District and the continuing erosion of affordable housing has pushed many longtime residents further away from the center of commerce and services, increasing their travel costs and time. 
Many low-income DC residents who rely on transit as their primary source of transportation have been priced out of rail, and are being priced out of buses as well.
Forced to rely on public transportation, they are the hardest hit by fare increases and often cannot afford the cost of traveling to a job, to the doctor, or to education programs.
Poor residents, especially poor residents of color, face far greater risks of being fined, arrested, and jailed for violations of minor offenses like fare evasion. And those who have been prosecuted for fare evasion repeatedly are caught in a cycle of fines and court obligations that leave them in an even worse situation financially, are difficult to overcome, and which can lead to disproportionately high rates of incarceration.
II. Enforcement of fare evasion laws disproportionately impact communities of color and immigrant communities.
We know there are significant racial disparities in who is targeted for enforcement of fare evasion laws. It is no secret that black and brown communities are stopped at greater numbers and face disproportionate interactions with law enforcement and the justice system. Evidence of racist enforcement of fare evasion specifically can be found from several other jurisdictions around the country.
- A 2010 study by the ACLU of Ohio analyzing data from the Cleveland transit system on which riders were subject to random searches for fare evasion, found that nine out of ten riders who were given citations were Black.
- A 2015 study by Minnesota’s Metro Transit agency measured racial disparities in enforcement of its fare evasion laws and found that people of color (Black and American Indian residents) were far more likely to be arrested or receive citations, as opposed to just warnings, for fare evasion than their White counterparts. 
- A 2016 study conducted by Portland State University’s Criminal Justice Policy Research Institute at the behest of the Tri-Met transit system, revealed that Black riders were penalized far more often than White riders.
- On October 16, 2017, the Community Service Society (CSS) in New York published a study that found that, even when accounting for poverty and crime, poor Black communities have significantly higher arrest rates for fare evasion than White communities. 
But we don’t need to look elsewhere to find that both explicit and implicit bias play a role in policing and enforcement of our criminal laws. A large portion of arrests annually in the District are for non-violent low-level offenses like fare evasion, and while these arrests may not directly lead to incarceration, they do saddle primarily Black and Brown DC residents with criminal records. According to WMATA blotter reports, the vast majority of arrests for fare evasion (81% of arrests for the period between September 2016 and July 2017) take place in the District. The collateral consequences of these arrests, especially for young people of color, follow them well into adulthood.
The criminalization of fare evasion also undermines the District’s commitment to being a Sanctuary City. The Trump administration has emphasized that federal agents should target for deportation any undocumented person if they are convicted of any crime, regardless of severity. An arrest for fare evasion can make an undocumented District resident more vulnerable to federal ICE agents and fear of arrest can drive undocumented residents underground, cutting them off from accessing basic needs and resources, and having a negative effect on public safety.
At a time of increased federal targeting of immigrants, poor communities, and communities of color, DC should work to counter these discriminatory efforts by reforming its own policies and practices that contribute to increased risks of incarceration and for some DC residents, to deportation. Making fare evasion a civil offense is one step in the right direction.
III. Making fare evasion a civil offense can reduce the number of negative confrontations between law enforcement and DC residents.
The Metro Transit Police Department’s zero-tolerance enforcement of low-level offenses including eating, drinking, littering, and fare evasion embodies a failed broken-windows approach that does not serve the interests of public safety and can lead to dangerous situations resulting in significant violations of riders’ rights.
Aggressive enforcement of these low-level offenses by Metro Transit Police officers has led to unnecessarily confrontational interactions between officers and riders, especially juveniles, that too often result in use of force and serve only to further erode community trust in law enforcement.  Making fare evasion a civil, rather than criminal offense can help decrease occasions for confrontations between Metro officers and riders, and avoid escalation of situations that can be much more reasonably and effectively resolved with a civil fine.
IV. There are significant costs associated with enforcing a low-level offense like fare evasion.
According to Metro’s Security Report, it has stepped up its enforcement of fare evasion offenses over the last year, employing one approach called High Intensity Target Enforcement (HITEs), in which officers pour into an intersection, consult with bus operators and nab fare evaders aboard buses. When we are talking about cost savings to metro, we should be asking how much it costs to operate these HITEs?
We should also ask ourselves as a community if this is the best use of resources and whether this hyper-policed “high intensity” environment is one that we want to encourage for something as minor as fare evasion. Beyond the initial police enforcement, there are also significant justice system costs in jailing individuals, in court costs, etc. that take both time and resources away from addressing more serious crimes.
And that is to say nothing of the costs incurred by saddling thousands of DC residents with arrest records and misdemeanor convictions that will follow them around and serve as barriers to jobs and housing.
Instead of spending money on enforcement of fare evasion, DC could address the lack of affordable housing, jobs, and community supports that are pricing many DC residents out of their only means of transportation.
V. Making fare evasion a civil offense is an emerging best practice.
Around the country, cities and states with significant public transit systems have in recent years begun reevaluating their fare evasion policies, and many have either fully decriminalized fare evasion or stopped enforcing fare evasion laws. The National Association of City Transportation Officials, whose mission is to “build cities with places for people, with safe, sustainable, accessible and equitable transportation” has also publicly opposed criminal enforcement of fare evasion.”
As Councilmember T. White stated in his remarks during introduction of this bill, “criminalizing riders will not result in an equitable transit system.” Far from it, criminalization leads to harmful collateral consequences for DC residents who already face significant economic barriers and disparate treatment in accessing DC resources.
We applaud Councilmember T. White for leading the charge in introducing this important piece of legislation and to all of the Councilmembers who are co-introducers and co-sponsors. We hope to see it move through the committee and voted into law.
 Sense of the Council on Establishing Race, Equity, and Social Justice Resolution of 2017 http://lims.dccouncil.us/Download/38922/PR22-0524-Introduction.pdf
 http://www.startribune.com/study-native-americans-and-blacks-more-likely... “Data collected from January 2014 through August involving 7,136 arrests and citations indicate that American Indians are 152 percent more likely and black adults are 26 percent more likely to be cited for first-time fare evasion than their white counterparts. Indians are 93 percent more likely to be arrested rather than warned for all incidents than white adults. And black adults were 38 percent more likely to be arrested.”
 http://www.cssny.org/news/entry/css-report-details-targeting-of-high-poverty-black-communities-for-fare-eva “In the first three months of 2017, the NYPD has arrested 4,600 people for fare evasion, an overwhelming 90 percent of them black or Hispanic. In Brooklyn in 2016, young black men (ages 16-36) made up half of all fare evasion arrests, but represent only 13.1 percent of poor adults”
 “On buses, MTPD worked with bus operations to target specific bus routes and times of day for fare evasions. In the first six months of 2017, MTPD issued 6,961 citations for fare evasion, doubling the number of citations issued in 2016 for the same period of time. MTPD officers also recorded 780 arrests for fare evasion which accounted for 52% of all arrests in the Metro System.” https://www.wmata.com/about/board/meetings/board-pdfs/upload/4A-MTPD-Security-Report-TO-POST.pdf
 “Crime Statistics | WMATA” taken from monthly blotter reports from September 2016-July 2016
 There is a particularly troubling story this past summer from Minnesota, in which a transit officer confronted a man about fare evasion and asked him his immigration status, despite the police department’s policy against doing so, escalated the situation to using a stun gun, and that man is now facing deportation. https://www.nytimes.com/2017/05/30/us/minnesota-deported-fare.html
 See, e.g., http://dcist.com/2016/10/metro_gm_calls_for_review_of_transi.php 2016 incident of Metro police officer took excessive use of force in detaining a girl with a lollipop at the Columbia Heights metro station.
 As on example, in May of 2013, the ACLU-DC filed suit for Stacy Winslow on behalf of her minor daughter A.K., whose head was slammed against a bus shelter, resulting in a concussion, by a MTPD officer who believed she was violating the D.C. curfew law when she was going home on the subway after a movie one night. This is one of several cases the ACLU has filed against MTPD since 2010. https://www.acludc.org/en/node/43294 and https://www.washingtonpost.com/local/aclu-lawsuits-metro-transit-police-officers-assaulted-dc-teens-made-up-charges/2013/05/08/f0b82028-b7ef-11e2-92f3-f291801936b8_story.html?utm_term=.d8e3d03d6784
 San Francisco decriminalized fare evasion for adults in 2008, and other cities like Los Angeles and Seattle have taken steps in that direction by decriminalizing fare evasion for youth; prosecutors in Portland have stopped pursuing charges for fare evasion, and New York City, where fare evasion is the most common criminal charge (at 10,000 arrests a year) has recently ceased prosecuting these cases. https://www.marketplace.org/2017/08/31/economy/new-york-wont-arrest-you-stealing-subway-ride-anymore
 “‘For transit agencies, whose mission should be to help people access their city, punitive approaches to fare collection don’t make sense,’ said Alex Engel of the National Association of City Transportation Officials. ‘A sensitive, sensible approach to inspection is key to creating an equitable system,’…‘Transit systems can train and deploy proof-of payment fare inspectors to ensure consistent inspection across routes and time of day. Fairness and the safety of both inspectors and riders is paramount; criminalizing riders will not result in an equitable transit system.’” found at https://usa.streetsblog.org/2017/03/08/why-cities-are-starting-to-decrim...