More than six months after fare evasion was decriminalized in the District, Metro is still clashing with the D.C. Council over the policy.

The transit agency contends that fare evasion is spiking since the bill was passed, and an administrative oversight in the council’s decriminalization legislation made it impossible for the transit system’s police to enforce any penalties for fare jumping in the District.

But some D.C. lawmakers say that Metro is presenting misleading numbers to create a false narrative around the dangers of decriminalization. Compared to last year, the largest increase in fare evasion has actually taken place in Maryland, where turnstile jumping is still a criminal infraction.

“Fare evasion is a serious issue with a significant overall cost to the Metro system. But for whatever reason, WMATA seems to be trying to hold up decriminalization as a bogeyman,” says Ward 6 Councilmember Charles Allen, the head of the Committee on the Judiciary and Public Safety who shepherded the decriminalization bill through the council. “We’re not the only jurisdiction to move this to a civil penalty.”

Fare evasion became a civil penalty in D.C. in May 2019. Before that, Metro Transit Police could issue criminal citations up to $300 and even jail people for 10 days for evading fares on a bus or the rail system. Now, the maximum possible penalty is a civil citation of $50, per legislation passed by the D.C. Council.

Except right now, there’s actually no penalty at all within city limits.

The law took effect more than six months ago despite forceful opposition from Metro, which wanted to keep the offense criminalized, and a veto attempt from Mayor Muriel Bowser. Since then, Metro police have completely stopped issuing citations for fare evasion in the District, the agency says.

“This is not about MTPD declining to or refusing to issue tickets,” Metro spokesperson Dan Stessel tells DCist. “There’s no process in place right now that even allows for it.”

Per Stessel, the D.C. Council’s bill decriminalizing fare evasion failed to create an administrative process for the new civil citations. Officers don’t even have a citation form they could hand out to fare evaders, he says.

DCist reported in May about these issues, just days after MTPD Chief Ron Pavlik issued a May 8 directive to halt all citations and arrests for fare evasion. “Because in their original legislation D.C. Council did not provide any process for adjudication, there is currently no mechanism for issuing a civil citation if we wanted to,” Stessel wrote in an email to DCist at the time.

About a week after the agency stopped citing people, the D.C. Council moved emergency legislation to fix the problem, explicitly giving MTPD the authority to hand out civil citations to fare evaders and granting the Office of Administrative Hearings the authority to create an adjudication and appeals process for the new citations. (The OAH is an independent city entity that holds hearings and decides cases involving more that 40 D.C. agencies, including cases involving unemployment benefits, Medicaid, rent control, and fire code violations.)

But more than six months later, that process still hasn’t been completed.

“We’ve been working with the Office of Administrative Hearings, because we still have to design the citation itself,” Pavlik told Ward 6 Councilmember Charles Allen, who chairs the Judiciary and Public Safety Committee, in a hearing about MTPD on Tuesday. “I don’t have a logical reason for it, but I guess the wheels of justice move slow. I don’t know what to tell you, sir.”

Pavlik said MTPD’s last conversation with OAH regarding this process happened in the last month, and Metro officials not been given a date for when the agency will be finished creating the citation and appeals process.

Louis Neal, deputy general counsel at OAH, said that the agency has just begun working with Metro to create an appeals process. But it is nowhere near finished, and he could not give a timeline estimate. Lawyers at the agency are trying to determine a fee schedule and fine and penalty structure, according to Neal.

Another big problem, Stessel says, is that the D.C. Council’s bill does not explicitly make it necessary for people to provide their true name and address to police when they’re being issued a civil citation for fare evasion.

“That effectively makes the citation useless,” he says. “Our number one chronic fare evader could well be SpongeBob SquarePants, and there’s nothing that the police can do to stop that.”

Allen, for his part, says introducing such a provision would have defeated the purpose of the bill. “In the middle of a bill trying to change criminal consequences, WMATA wanted to add a new criminal consequence,” he says. Allen also contends that MTPD officer still have—and have always had—the ability to refuse service to people who evade their fares. “Metro is spending time and money fighting a fight that was over a year ago,” he says.

Metro’s concerns won’t go away when the administrative process is in place. The agency also contends that decriminalization could lead to an increase in other crimes across the system.

“Many crimes that occur on Metro have a fare evasion component, and when you have strong enforcement, you actually drive down crime in other ways,” Stessel says. “Some people would call that a broken windows strategy of policing and that’s gotten a negative connotation because of an association with stop and frisk … there’s no stop-and-frisk component to this because there’s no right to frisk someone when you just stop them for fare evasion.”

But decriminalization supporters have argued that criminal enforcement has a racial bias—a report from the Washington Lawyers’ Committee for Civil Rights and Urban Affairs found last year that 91 percent of people stopped for fare evasion between 2016 and 2018 on Metro are black.

MTPD officers have also been criticized for the actions of some officers enforcing fare evasion laws: In February 2018, police slammed a young mother to the ground in front of her two small children after she declined to pay her bus fare, chipping four of her teeth and fracturing her knee. In another incident at a rail station, police pinned a woman down after she tried to evade her fare, struggling with her on the ground and threatening her with a taser. The woman’s top came down, exposing her breasts to passersby.

In a report to the WMATA board this week, Metro officials said that fare jumping appears to be increasing. But Allen contested the idea that there was a relationship between D.C.’s decriminalization of fare evasion and the increase in fare jumping. He pointed out at Tuesday’s hearing that fare jumping has been increasing for the past two years—long before D.C. implemented its law—and rose at a faster rate when fare jumping was still a crime. 

Allen says he also has other reasons to distrust Metro’s numbers. At Tuesday’s hearing, Pavlik testified that children who fail to tap their “Kids Ride Free” cards are counted as fare evaders, even though up to 15,000 kids still hadn’t received their cards as of September 30.

“I think [this] speaks to the wrong ways we talk about fare evasion. We have thousands of students that do not actually have their Kids Ride Free Card. We obviously expect them to get to school … We know that they need to get there, and they have no other way to do it, but we’re counting them in our fare evasion numbers,” Allen said at the hearing. “I think that’s problematic.”

The transit agency is testing out new fare gates with sensors to help track fare evaders on Metrorail. It will be testing out the sensors on 13 mezzanines by January 2020, per Metro. Similar systems are already in place on Metrobus.