Jeffrey Zeldman

Proponents of a ban argue that the subway is a unique space, where potential victims have little means to escape.

At an MTA board meeting in June, NYPD Chief of Transit Edward Delatorre recited the rap sheets of “Mr. G” and “Mr. F,” two men he says have been arrested repeatedly in the transit system. Mr. F has racked up 65 prior arrests over the years, stands 6-foot-3 and uses a razor to cut people’s pockets to steal from them on the train, according to Delatorre. Mr. G, he says, is a sex offender who’s likewise been arrested several times for attempted subway robberies, including an incident in March where he also sexually offended a 30-year-old woman.

“You ask yourself, well, when is he going to stop? Mr. G is over 70 years old, and he’s been arrested 27 times, 24 times in transit,”Delatorre told board members. “These are people who’ve made a career out of victimizing our ridership.”

He gave this testimony at an MTA board committee meeting, where members debated if the transit agency should be allowed to ban people who’ve repeatedly committed crimes in the system from riding its subways and buses. Though the board can’t institute such a policy itself, lawmakers in recent months have proposed legislation to do so, and Gov. Cuomo released a statement at the end of June in support of a transit ban for serial offenders, calling it a “common sense issue” and pushing for elected officials and the courts to “enact the strictest penalties possible” against repeat perpetrators.

Defense attorneys and others who work in criminal justice, however, argue that banning people from using public transit for crimes they previously committed—crimes they’ve already presumably been penalized for—amounts to “punishment in anticipation that a crime might occur,” says JoAnne Page, president and CEO of The Fortune Society, a nonprofit that works with formerly incarcerated people around re-entry.

“We don’t do that in this country,” she says. “We have laws on the books to deal with these crimes, and we should use them. But the idea of punishing people before a crime is committed—I think it’s just bad law.”

Additionally, advocates worry a ban could unfairly impact already-marginalized people—including the homeless and the mentally ill, who sometimes seek refuge in the subways—and be used against defendants who are innocent of their accused crimes, but plead guilty to avoid jail time. They fear it could disproportionately impact people of color, as has been the case with the NYPD’s fare evasion enforcement.

“The whole idea of banning people from riding the subway or using buses for transportation is hugely problematic,” says Yung-Mi Lee, a supervising attorney with Brooklyn Defenders.

Restricting formerly incarcerated people from the most affordable mode of transportation can impede their access to jobs, school, medical and mental health services—the very things experts say are beneficial to avoiding another offense.

“Banning them outright is just going to completely contradict any policy toward rehabilitation,” Lee says.

What other cities do

Proponents of a ban, though, see it as a tool to protect riders against career criminals and ensure safety on buses and subways, which can be ripe hunting grounds for certain kinds of criminals.

“Mass transit is an excellent environment for both pickpockets and groping,” says Polly Hanson, director of security and emergency management for the American Public Transportation Association. “You have people very close together, people are being bumped and they’re having their feet stepped on.”

Transit systems in other cities make use of bans and suspensions as a policing measure: In Houston’s METRO, police can suspend riders who violate the transit system’s code of conduct for varying lengths of time, depending on the offense; committing a violent crime or crime with a weapon can get riders banned permanently, according to the METRO’s policy. Atlanta’s MARTA also expels and suspends rule breakers for different lengths of time, commensurate with the severity of the violation; since 2013, more than 10,000 riders have received suspensions, something officials say helped reduce overall crime in the system, according to the Atlantic Journal Constitution.

In 2013, California state law granted San Francisco’s BART the ability to issue “prohibition orders” against riders who commit crimes or repeatedly violate other rules, banning them for as long as 30 days to up to a year. In 2017, most of the people who’d received the temporary bans complied, with less than six percent that year violating their orders, according to a San Francisco Weekly report. But other data from the same year shows that a majority of the prohibition orders were issued to riders of color: two-thirds of those banned in 2017 were black, despite the fact that black riders make up just 12 percent of BART’s weekday customers, the San Francisco Chronicle reported.

Hanson says agencies that use ban policies typically add safeguards intended to prevent misuse: Many have appeal policies that allow riders to challenge their suspensions, while some have an external body or committee to review and evaluate enforcement. Suspensions can be tailored to allow the banned person to use transit for essential trips, like to and from work, but restrict them from the system otherwise.

“I think agencies take the suspension of service of an individual very seriously,” Hanson says. “This is about providing a safe and secure environment to riders.”

What it could look like in New York

MTA board members who support a ban or suspension policy have made a similar case. Last month, the board approved a resolution calling on the state legislature and the courts to, in part, “take decisive action regarding the issue of serial criminal recidivists who seek to prey on workers and/or members of the riding public, such as by authorizing courts to ban them from the transit system for some amount of time.”

Sarah Feinberg, who chairs the MTA Board’s Transit committee, told fellow board members they were “careful” in their wording of the resolution, stressing they want a narrow ban policy that targets repeat offenders or those who commit more serious crimes, not “someone who has reformed themselves, or a kid who makes a mistake.”

“We have to start treating the transit system differently,” Feinberg said during the committee’s meeting at the end of June. “When you are stuck on a moving railcar, when someone who is attacking you, assaulting you, robbing you, there is nowhere to go…and these guys [offenders] obviously know that.”

The NYPD and MTA track arrests of so-called “transit recidivists,” people who are either on parole or probation, were arrested for a major felony crime in the city in the last four years, were arrested for a felony or misdemeanor in the transit system within the last two years, racked up three or more transit violation arrests in the last five years, or have three or more unanswered Transit Adjudication Bureau summonses (issued to those who violate NYC Transit’s code of conduct), according to NYPD documents. NYPD Transit Police made 67 arrests of transit recidivists during the first three months of 2019, down from 78 such arrests during the same period last year, MTA board materials show.

At least two local lawmakers have ideas for what a potential subway ban could look like, including Brooklyn Councilmember Chaim Deutsch, who’s said he supports permanently barring repeat sex offenders from transit. State Sen. Diane Savino, who’s pushed for years to toughen penalties for subway sex assaults, introduced a bill this spring that would allow the MTA to “prevent entry and usage of its services” to people convicted of more serious crimes in the transit system, including assault, robbery and sex offenses. The bill passed in the State Senate, but the Assembly failed to vote on it before legislature wrapped up for the year.

Vincent Del Castillo, an associate professor at John Jay College and former department chief at NYPD Transit Police, says a ban policy could be a “useful tool,” for law enforcement, particularly if it came in the form of a restraining order or some other court order, to give it “teeth.”

But actually executing and enforcing such a policy could be difficult.

“As far as identifying them, I guess you would have to have some posters or something alerting the police officers of who these people are,” he says, adding that subway offenders “tend to be creatures of habit” who return to the same crimes in the same areas, which would make it easier to spot banned riders.

But if the list of those barred from the system is a long one, the resources required to effectively enforce a ban could outweigh its benefits, Del Castillo says.

“I think it would be more trouble to try to administer a thing like this.”

Fear of a ‘slippery slope’

Criminal justice advocates say that even a policy that’s intended to target only those who repeatedly commit serious crimes could have collateral damage. Some public defenders worry about the potential use of facial recognition technology to enforce suspensions and bans, raising concerns about privacy and possible racial profiling.

“Police profiling, assisted by technology or not, will continue to target our clients and falsely accuse people who are black and brown men usually, and who are sometimes homeless, and target them for those reasons,” says Cynthia Conti-Cook, a staff attorney with Legal Aid Society.

Others say that while bans might be effective in other cities’ transit systems, they might not work here, since “no other American city relies on public transportation as heavily as New York,” says Mary Haviland, executive director of the New York City Alliance Against Sexual Assault, a nonprofit that works to combat sexual violence.

“Opportunistic sex crimes on public transportation are a constant issue in New York City, and often involve repeat offenders – and disincentives are a necessary response mechanism. However; we feel that the problem requires a more nuanced approach than a blanket two-offense ban,” Haviland told City Limits in a statement.

To be successful in stopping criminal behavior, a punitive policy must consider the circumstances of each individual case, including “the perpetrators’ motives and circumstances,” any possible mental health issues and “the scope and history of the crime,” she added.

“Lastly, for many New Yorkers the subway is the only available form of transportation and to cut someone off from their ability to earn a living could perpetuate or worsen the problem,” Haviland says.

Banning people from spaces where they previously committed a crime opens up a “slippery slope,” says Page, of The Fortune Society.

“If you started making a list of the offenses that people tend to repeat and then bar them from the places where those crimes happen, you would end up in society you wouldn’t want to live in,” she says, adding that the resources put toward implementing and policing a transit ban could be better spent on initiatives that address the frequent root causes of criminal behavior.

“I would rather see the funding go into creating decent emergency and transitional [housing] options for people who are homeless, and increasing the capacity to serve mentally-ill people,” Page says. “This isn’t a solution. This is a performance.”