Nearly half of New York City’s two million bus passengers have fare-dodged in the past three months. This pattern helps explain why the MTA reportedly lost over $300 million to free riders last year.
Law-abiding New Yorkers will pay for such lost revenue in the form of fare and tax increases.
But simply deploying additional New York Police Department officers and fare inspectors to combat fare fraud – as the transit agency announced last month – will not solve the problem.
Unless Albany changes the 2020 Discovery Law, the actual consequences of fare evasion will not be enough to convince riders to pay the $2.90 per ride.
In New York State, disclosure reform has made it impossible to prosecute “minor” crimes such as fare evasion, often giving offenders an insurmountable advantage.
Importantly, this decision is independent of the explicit policies declining to prosecute fare evasion that district attorneys in Manhattan, Brooklyn and the Bronx have issued since 2017.
The Disclosure Act does not limit the strict prosecution of fare evasion. Instead, it imposes such a compliance burden that prosecutors simply unable to pursue such cases consistently – even if they want to.
A perfect example of this is the case of Zayan Shar, who was charged with “theft of services,” a Class A misdemeanor, in Staten Island last November after he was caught fare-dodging on a bus.
Prosecutors submitted all the material now required as evidence under the Public Disclosure Act: body-worn camera recordings, a fare evasion fact sheet, an affidavit supporting fare evasion, video surveillance from the bus, a notebook entry by MTA Special Inspector Thomas Femia, who witnessed Shar’s fare evasion – and more.
But Shar’s defense attorney was able to get his case dismissed by taking advantage of the limitless rigor of the 2020 discovery law combined with New York’s “speedy trial” law, which requires prosecutors to be ready for trial within a set number of days.
Shar’s lawyer hesitated for two weeks before bringing a matter as the time for prosecution continued to shrink.
She then claimed that prosecutors had failed to provide “the name and sufficient contact information” for two additionally MTA employees who were seen at the moment for video surveillance and body cam recordings.
The lawyer also requested the notebook and camera logs of one of these officers, Special Inspector Christopher Piegari.
In the weeks that followed, prosecutors eagerly searched for and shared all of these materials.
Nevertheless, the defense was able to insist that the prosecution took too long to collect these – meaningless – additional snippets of information.
How insignificant? Piegari neither witnessed Shar’s alleged fare evasion nor informed the NYPD about it. In fact, he was in the defendant’s presence for “only a few seconds.”
Prosecutors argued that none of this new information was “discoverable” – material required as evidence – because they did not intend to call Piegari as a witness. Moreover, Piegari’s notebook “contained no information about the alleged incident.”
And yet the case was dismissed.
The fact that Shar is participating for free is no one-off coincidence: In the first eleven months of last year alone, the Staten Island District Attorney’s Office rejected around 300 requests for “speedy trials” – that’s five percent of the total caseload.
Compare this to the time before Discovery reform, when the Office was essentially zero Cases based on requests for a “fast track procedure”.
In addition to the rejection of “fast-track procedures”, the burden of proof has led to an increase in all Case dismissals in Staten Island – from less than a quarter of cases in 2019 to almost half of cases in 2023.
And for offenses like Shar’s stolen bus ride, the district saw over a thousand more layoffs last year than in 2019, before disclosure reform.
And that’s just one district.
Citywide, the number of “speedy process” dismissals rose from less than 5% of cases in 2019 to more than 22% last year.
That’s a staggering increase from 23,564 cases like Shar’s that were dismissed because prosecutors were unable to assemble every possible piece of “evidence” defense attorneys could cobble together before the allowable time limit for prosecution expired.
This absurdity will continue until the disclosure reform is changed to only allow the collection of relevant or to decouple the taking of evidence from the deadline for a “fast track” procedure.
Yes, increased police presence on buses and more proactive enforcement are important to encourage the 25% of bus riders who stopped paying fares after 2019 to start again. But it will not bring the number of ridership crashes back to 2019 levels.
As long as prosecutors do not have the ability to vigorously prosecute misdemeanors, police will understandably be less motivated to take any enforcement action beyond ineffective subpoenas.
And half the city’s bus riders will not be deterred by fear of prosecution and will continue to ride at the expense of the suckers who pay for their ride.
Hannah E. Meyers is a fellow and director of policing and public safety at the Manhattan Institute.
