By Sara a. Doody , Akin Akinjiola and David Ourlicht
June 27, 2019
Latest in the parade of misguided policies coming from the Metropolitan Transportation Authority is a new proposal to impose a lifetime ban on our transit system for New Yorkers who have been convicted of certain felonies, including sexual crimes.
Let’s be clear: No one supports unwanted sexual touching on the subway. But this proposal will disproportionately affect black and brown men who have been profiled by police and further marginalize them for life from access to jobs, government services, educational opportunities and treatment programs.
Additionally, while no strategy for enforcing these bans has been announced, controversial facial recognition technology is already being piloted by the MTA. If this is how the system tries to keep these people out of the subway system, we should all worry deeply that enforcing a ban on the few will violate everyone’s privacy. While supporters emphasize that the ban will target only “serial” offenders who have been convicted more than once, the proposed policy fails to safeguard against police profiling. As public defenders, we have won acquittals for our black and Latino clients who were targeted for these arrests.
In the past few months, we have won three acquittals on behalf of men police profiled in the subway as gropers based on their race, socioeconomic and non-domiciled statuses.
Unfortunately, many of our innocent clients can’t withstand the delays, routine court appearances, and personal costs of returning again and again to court for a trial, so they plead guilty. And given the biased and predatory policing of alleged “subway gropers,” it is highly likely that individuals targeted for these types of arrests would be rearrested and ultimately banned if convicted, or if the they plea given the pressures previously mentioned.
Yet no detailed strategy for enforcing this lifetime ban has been publicly revealed; reporting has described officers memorizing faces and chasing people through the subway to surveil them. Such a system is dangerously flawed and fraught with the risk of error and bias.
Things could get even worse. Soon, if not already, the vast network of cameras in the subways will scan everyone’s face and be able to identify face prints as people enter and move through the system.
This past April, a reporter tweeted a picture of a monitor facing turnstiles in a subway station that was capturing people’s faces, with a warning across the monitor telling commuters that it was recording and reminding them to pay their fare. The MTA assured the public that this was a “trick” meant merely to deter fare evasion, but it’s not a far reach to believe that, if anyone was banned from the subway, whether for serial sex offenses or serial fare evasion, the MTA would use their digital face prints to scan the system for banned riders.
Some commuters may not mind that. But like police profiling, facial recognition also produces racially biased outcomes and it has already been banned in San Francisco. Its machine training has historically been done primarily on non-black skin, making its results less accurate when asked to match a black person’s face. That means there is a higher chance of black commuters being wrongly identified as banned subway gropers when they are not.
Even for those duly convicted of subway groping, is eliminating their ability to move about New York City appropriate punishment or sound public policy? These individuals will never be able to travel to a job, to medical providers, to educational or training programs, to libraries, to family, friends or anywhere else. Moreover, the proposed ban makes rehabilitation a virtual impossibility. In the end, it will make New York and New Yorkers less, not more, safe. Doody, Akinjiola and Ourlicht are staff attorneys with the Manhattan Criminal Trial Office at The Legal Aid Society.