Manhattan District Attorney Cyrus Vance Jr. announced last week that beginning in September, his office will no longer prosecute most people arrested for theft of services, the class A misdemeanor attached to jumping subway turnstiles. It’s a policy shift that could have significant implications for Manhattan’s criminal courts, where theft of services is the single most prosecuted charge, accounting for nearly 10,000 cases last year alone.
Under the new policy, Vance’s office will encourage police to issue summonses and desk appearance tickets to people who don’t pay the subway fare. Those who the police do arrest will be given a choice: They can face prosecution, or they can take part in a diversion program.
The announcement was greeted enthusiastically in the press and some quarters of the criminal justice reform community. City Councilmember Rory Lancman, a dogged critic of much of New York’s criminal justice policy, praised Vance’s move as a “smart and sensible policy.” Tina Luongo, attorney in charge of the criminal practice at the Legal Aid Society, released a statement urging New York City’s other district attorneys to follow Vance’s lead. Acting Brooklyn D.A. Eric Gonzalez announced that his office would soon be doing just that.
But not everyone is convinced that the Manhattan D.A.’s initiative is really the best he can do.
“D.A. Vance’s move is indicative of a growing awareness that we can’t arrest and prosecute our way out of all our social problems,” said Alex Vitale, a Brooklyn College professor who studies criminal justice. “But by relying on diversion and other forms of supervision, they’re holding on to the idea that there’s something wrong with people who do things like jump the turnstile, when the problem is that public transit can’t be afforded by large swaths of the public anymore.”
Of course, as district attorney, Vance isn’t in a position to roll back the decades of underfunding that drove the MTA to borrow so much money that nearly a fifth of its revenue now goes to servicing its debt and ongoing fare hikes are projected out to the horizon. That very real problem is outside of his control.
Using money from its settlements with banks that violated U.S. sanctions, the D.A.’s office is funding three diversion programs.
One program, run by the Center for Court Innovation, will cater to young adults and adults from midtown Manhattan and adults from Lower Manhattan, and will offer workshops on “topics such as public health, legal resources, community service, education, and workforce,” as well as counseling and a restorative justice program, according to the district attorney’s office.
Another program, run by the Osborne Association, will focus on residents of northern Manhattan, who will be offered “one of four core interventions: a trauma-coping intervention, a restorative justice intervention, a Naloxone treatment training program, and community benefit projects.”
The third program, run by Young New Yorkers, will serve young adults in Lower Manhattan and will be composed of “an arts-based restorative justice intervention that engages participants in taking responsibility for their actions through storytelling, utilizing video, photography, and collage.”
But the decision to subject New Yorkers whose crime is riding a subway they’re too poor to afford to diversion programs might still have adverse consequences.
“We’ve been here before,” says Jeffrey Fagan, a professor at Columbia Law School who focuses on criminal justice issues, and who notes that diversion programs are already a feature of specialized courts for drug offenders and sex workers. “The bargain with diversion programs is, ‘Get in this programmatic setting and comply with this set of rules, and we won’t prosecute you.’ That’s fine, but it could be the case that the terms of these diversion programs are actually more onerous than copping a plea, having a judge tell you not to get arrested again for six months, and walking out the door. So the question about diversion is, diversion compared to what?”
If the requirements of the diversion programs are too onerous, some participants will fail to meet them, Fagan said. “What happens then? If they don’t comply with it, then they’re back in court. And the judge may say, ‘Hey, you had your chance and you screwed up, so now you’re going to have to face the music.’ They can end up worse off than if they had just taken the plea and been let go with a warning to stay out of trouble.”
There’s also the question of whether the diversion programs are intended to punish fare beaters, educate them about the consequences of their crime, provide them services to address underlying conditions that led to their behavior, or some combination of the three. Not all people riding the subway for free require treatment for drug addiction or coping with trauma. “There’s a danger with diversion programs that it can become a matter of hammers and nails — they have a hammer and they see everything as a nail,” Fagan said.
Nor is he convinced that a restorative justice process — in which wrongdoers reconcile with their victims and confront the consequences of their actions — is necessarily a good fit for fare beaters. “I’m not sure that someone who’s in desperate straits and hops a turnstile needs a restorative justice program to tell them they’ve torn up the social contract. That might be overkill,” Fagan said.
How the Manhattan district attorney’s office and its contractors will navigate these complicated issues remains to be seen. The D.A.’s office declined to comment on the record about its new initiative beyond its public announcement. The diversion programs will still be under development for months before the first turnstile jumpers enter them.
But Vitale wonders if Vance isn’t missing a much simpler solution: “Instead of trying to divert people into a program, he could just refuse to prosecute them, period.”