The Portland region's top prosecutors are ringing in the new year with an interesting message: The justice system is too harsh on people who repeatedly skip out on their MAX fares.
So Multnomah County District Attorney Rod Underhill, Clackamas County District Attorney John Foote, and Washington County District Attorney Bob Hermann have just announced something months in the making. In a joint "statement of agreement," the three DAs are pledging to largely discontinue enforcement of the state's Interfering with Public Transportation law, the go-to charge when chronic fare skippers are charged with a crime.
The crime is a level A misdemeanor, on par with a DUII or low-level assault offense. The DAs say that's out of step with not paying a $2.50 train fare (the vast majority of fare offenses occur on MAX).
Instead, they say their offices will largely opt for less serious C-level misdemeanors for flagrant fare dodgers—when a crime even has to be charged at all. Underhill tells the Mercury he'd prefer TriMet handle the issues administratively rather than pushing people into the court system.
"We feel using Class C Misdemeanor charges to address chronic fare evasion offenders on Tri-Met balances Tri-Met’s need to maintain order on its system, while simultaneously equating the level of harm with the appropriate charge in the criminal justice system," the statement from the three district attorneys says. (A story in Street Roots last year presented public defenders' long-held concerns with the Interfering with Public Transportation law.)
The decision comes less than a month after a Portland State University study commissioned by TriMet showed African Americans who are caught riding without paying a fare are more likely to receive exclusions from the transit system than other groups (people who disregard those exclusions become prime candidates for a criminal charge). It's also rooted in the release last year of a study from the MacArthur Foundation that suggested black people are mixed up in the Multnomah County criminal justice system at disproportionate and concerning rates.
"When deciding whether to initiate prosecution it is important to consider, among other things, fairness, equity and proportional consequences," the statement says. "Our offices share a concern that the racial disparity confirmed in the PSU study could lead to unjust results in the criminal justice system."
According to Underhill, his office files roughly 500 cases for Interfering with Public Transportation (known as IPT) each year. About 100 of those are for criminal behavior on the bus or train, which Underhill believes is a valid use of the law (the other two DAs agree). The rest are for fare evasion.
"Should that be a class A misdemeanor?" he asks. "We instead want to have nearly all of these cases addressed in a different fashion."
Under the statement signed today by Underhill, Foote, and Hermann, their offices will now consider stepped-down charges of criminal trespass or third-degree theft in the case of chronic fare dodgers—crimes which carry far fewer potential penalties.
"We have determined that in all but the most chronic or exceptional circumstances applying [the IPT] law to any previously excluded fare evader is not a proportional consequence, and for African Americans it compounds a disproportionately higher rate of exclusion from Tri-Met for African Americans," the document reads.
On one hand, the ultimate outcome of lower-level criminal cases might not be all that different than the past system—at least in Multnomah County. Underhill says his office frequently offers offenders a shot at community court, in which defendants can have their charge scrubbed in exchange for community service or other conditions. That will still be the case.
Still, not everyone gets off with a slap on the wrist. The Street Roots piece cited above reports that people who saw jail time as a result of their IPT conviction in Washington County spent an average of 28 days in jail. In Multnomah County, they faced an average 15-day span, and prosecutors dismissed just 31 percent of IPT cases.
Beyond lessening potential penalties, Underhill says taking a class A misdemeanor off the table might reduce the likelihood a chronic fare-jumper will be arrested for their offense. Warnings and tickets are issued before a criminal case is filed.
"We hope that most of these will be looking at citations" rather than arrest, he says.
The conversation around fare enforcement began months ago. Following the MacArthur study, Underhill says he looked at data the suggested IPT cases in his were being filed disproportionately against black people. In response, he reached out to Foote and Hermann to talk about possible tweaks.
TriMet, by the way, welcomes the news.
"The district attorneys, through many discussions, have come to an agreement about how this law is enforced across the three counties, which is in line with what TriMet believes to be fair," the agency said in a statement, adding that it's mulling changes to ensure fare enforcement is "equitably applied and not overly punitive."
But the agency adds: "IPT remains a vital element for law enforcement efforts to regulate disorderly conduct that threatens the safety of our riders and our employees. TriMet continues to support the use of this Class A misdemeanor in such cases as we work to provide safe transit service."
Here's the full statement from the DAs [PDF].