On one hand is a man who goes to jail at will without hurting anyone, who steals only expensive New York restaurant food. Instead of throwing a rock through a window, he orders a T-bone.

On the other hand is a man who seems to have abandoned hope of ever having anything better, who prefers society's idea of punishment to his place in the society, said Ms. Swarns. In the past two years, he has seldom been free more than a few days before enjoying an illegal entree. Not Too Cheap

He has patronized the American Festival Cafe and the Taj Mahal in Manhattan, and Tony Roma's in two boroughs. He chooses restaurants that are not too cheap, not too expensive. If a restaurant is too pretentious, it might not seat him. If it is too cheap, he might not be arrested for stealing its food.

"If they really wanted to punish him," said Ms. Swarns, "they would stand outside Rikers and say, 'You go away.' "

Instead, Mr. Mahes does 90 days for stealing fish.

It costs taxpayers $162 a day to feed, clothe and house Mr. Mahes at Rikers Island. His 90-day sentence will cost them $14,580, to punish him for refusing to pay the $51.31 check. In five years he has cost them more than $250,000.

Louis Fasulo, a supervising lawyer at Legal Aid, said the real shame was that Mr. Mahes was returned to jail over and over before anyone questioned if it was the right thing.

"No one took the time," he said.

His lawyers have asked for alternative sentencing, including counseling, but prosecutors denied it. If Mr. Mahes wants to live in prison, the City of New York will let him.