Farebox cheating was costing Metro a lot of money. Metro management estimates that as many as one-seventh of rail trips were going unpaid, denying the system about $40 million a year. Equally important, there was a growing sense that decriminalized fare evasion was an insult to the majority of riders who willingly obeyed the law.
But money wasn’t the only issue behind the newly strengthened law. There were complaints that fare jumping was leading to a whole array of other minor crimes. More than 60 percent of the crimes committed on Metro came from people jumping over or around the fare gates. The City Council, which had enacted decriminalization over Mayor Muriel Bowser’s veto, admitted its mistake and rewrote the law.
Minor crimes are becoming an issue again in places that don’t have fare gates to jump over. In March, the Vermont House passed a bill that would make life tougher for retail thieves by allowing prosecutors to convert multiple shoplifting misdemeanors into a single felony, encouraging much stiffer penalties. Oregon, meanwhile, has ended its three-year-old decriminalization of drug possession. It enacted legislation imposing sentences of up to six months in jail for those caught with even small amounts of heroin, methamphetamines or cocaine. The Legislature saw a connection between drug possession and more serious offenses.
All of this, as you probably realize, is part of the anti-crime crackdown around the country that is reacting against the broad-based easing of minor-crime penalties that followed the murder of George Floyd by Minneapolis police in 2020.
You might assume that it stems from a nationwide increase in crime rates, but actually that’s not the case, especially for violent crime, which declined across the country in 2023 (although a few cities — D.C., Memphis and Seattle among them — saw significant increases). The incidence of property crime in the United States has held about steady over the past decade, and is far below what it was in the 1990s.
Nevertheless, a Gallup Poll in November found that 77 percent of respondents believed national crime rates rose in 2023, and 63 percent felt that crime was a very serious or extremely serious problem. Oregon, like D.C. and a few states, is experiencing a crime increase worthy of concern: It has the nation’s fourth-highest property-crime rate and a growing incidence of violent crime. But most states don’t face that. Vermont definitely doesn’t. Its rate of property crimes, including retail theft, is among the lowest in the nation.
THE NEWLY HEATED CRIME DEBATE, including the renewed resentment over offenses such as fare jumping and shoplifting, raises much larger questions about what transgressions we should be punishing, how tough we should be and what sorts of offenses we ought to hold people responsible for in the first place.
In decriminalizing farebox jumpers six years ago, D.C.’s more-progressive city councilmembers argued that most of these violators were among the city’s poor and minority population, and that many were breaking the rules because they simply didn’t have the money to pay for rides. The implicit point was that tough farebox laws could be seen as a brand of racism. The broader implication was that this was an activity for which the perpetrators could not be held morally responsible.
But what kind of criminal offenses dictate a judgment of moral responsibility? This is a question that social scientists, as well as law enforcement officials, have been debating for at least the past century. Pardon me for offering an impossibly brief overview.
Most scholars have conceded that there are four fundamental reasons to punish people for the crimes they commit. The simplest is retribution: You steal something, or hurt someone, society is entitled to get even with you. The idea of deterrence is almost as simple. If we crack down on shoplifting — or murder — potential offenders will be discouraged from doing it. The difficulty there is that most reputable studies have shown little or no deterrent effect on crime. The states that impose capital punishment can’t claim that it reduces the murder rate. Most of them have more murders than the states where execution has been eliminated.
The third justification is rehabilitation. There are few examples of where it has worked. Most criminals emerge from confinement about as likely to offend as they were before they were caught. This is especially true when we offer little in the way of employment for newly released convicts.
That leaves incapacitation, the argument that nearly everyone supports to one degree or another. When we lock someone up, we at least keep them from re-offending while they are behind bars. But how long is enough? Over the past 30 years we have been imposing multi-decade sentences for relatively minor drug offenses and single-episode teenage mistakes that involve guns. Incapacitation makes sense, and has contributed to the overall decline in violent crime in the past 30 years. But overlong incarceration presents all the moral difficulties of which its critics accuse it.
SOME OF THE MOST PROMINENT SOCIAL-SCIENCE SCHOLARS, such as Steven Pinker of Harvard and Alan Page Fiske of UCLA, reject most of the arguments for punishment and stress a purely utilitarian approach to the issue: We should mete out strict punishment in order to create a safer, fairer, more orderly society. If we can’t show evidence that we are doing that, then perhaps we should treat offenders more gently, no matter how illogical it may seem to the majority of Americans. Getting even, these scholars would argue, is not a sufficient reason for punishing someone.
Underlying all of this, however, is the presumed connection between punishment and free will. Criminals are liable for punishment if they had the intention to commit a crime, possessed the ability to restrain themselves and went ahead with the offense anyway. But how can we tell when an offender was acting in the presence of free will? That is a question that makes a highly complex subject even more difficult. It also takes us a very long distance from quotidian problems like farebox cheating and shoplifting.
In particular, it leads to the bracing work of the neuroscientist Robert Sapolsky of Stanford University. Sapolsky, the author of Determined: a Science of Life Without Free Will, not only argues that criminals can’t be held responsible for their offenses, he believes none of us are really responsible for anything we do, from robbing a bank or jumping a turnstile to even the most innocent behavior. All human actions, he argues, are governed by the interaction of neurons in the brain, and the work of those neurons has been determined by everything that has eventuated in our lives — the happenings of the past few minutes, our experiences of last week, the events of our childhood, the genes that we were born with, the way we were treated in the womb. In Sapolsky’s view, nothing we do can be treated as an act of pure intention, and free will is a concept that bears no relation to reality. All human actions are determined.
Sapolsky makes a remarkably compelling case for much of what he believes. But his ideas are a lot for most of us to swallow, especially when it comes to crime and punishment. In his view, fare jumpers have no choice but to act as they do. Neither do bank robbers. Nor, if one dares say it, do psychopaths. On the positive side of the case, seven-footers who lead the NBA in scoring didn’t get that way through any intention of their own.
THE OBVIOUS DILEMMA, if you accept some or all of this, is how we should treat crimes, both minor offenses and larger ones. The social scientist Kathleen Vohs of the University of Minnesota argues that free-will skeptics become more anti-social in their behavior. Addicts can plead for sympathy on the grounds that their addiction was inevitable. We might all be tempted to run amok.
Sapolsky understands these arguments, but doesn’t concede their validity. “I haven’t been seriously tempted to run amok very often,” he suggests playfully. “It seems kind of tiring and you get all sweaty.” He points out that atheists who reject conventional theories of free will are not more inclined to criminality than other people; in fact, some studies show, they are less inclined. Sapolsky isn’t against punishment, only most of the justifications for it. He believes criminals should be quarantined, just as dangerous automobiles are taken off the road. He calls for improved conditions in the nation’s prison system.
Sapolsky is worth reading, as are the social scientists who generally agree with him. But they will never convince a majority of Americans that all of our common punishments are misguided. Even if we stop believing in retribution and deterrence, we will continue to believe in fairness. When somebody busts through a subway gate and gets away without paying, he is unfair to the rest of us who obey the law. Shoplifters are an affront to law-abiding consumers. It doesn’t matter if they were fated to break the law by their childhoods or their genetic endowment. If we want to have a society that believes in order and civility, and we do, we are obligated to punish them. That is something governments around the country are coming to remember after a fortunately brief period of forgetfulness.
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