License To Kill

Last week it was the cyclists, dying on the fender of the devil car. This week, it’s the children.  Why does the New York Times hate cars?

Cooper was holding my husband’s hand as they crossed 97th Street and West End Avenue. They were in the crosswalk, with the light. By law, they had the right of way. The taxi driver failed to yield while making a left turn.

According to the mayor’s office, driver error is a factor in 70 percent of pedestrian deaths in New York City, yet motorists are rarely held accountable. The Department of Motor Vehicles reports that motorists are cited for careless driving in less than 1 percent of crashes. Even fewer drivers are charged with a crime. How can drivers who kill innocent pedestrians go free?

Seventy percent?  How is that possible?  It must be that the balance of pedestrian deaths comes from being run down by Chinese food delivery bikes and people walking head first into the ubiquitous scaffolding poles while deeply engrossed with Facebook updates. I would have expected 90% or better.

But Bill de Blasio has a tragedy, a child killed in a crosswalk, and it cannot go to waste.

IN June, Mayor Bill de Blasio signed 11 bills related to Vision Zero, the city’s initiative to eliminate traffic deaths and serious injuries over the next decade. One was Cooper’s Law, named for my 9-year-old son, Cooper Stock, who was struck and killed by a cab on Jan. 10.

That a child died matters.  But that does not give rise to the next step in the reasoning.

There was videotape evidence that the man who killed Cooper did not yield. Witnesses corroborated that the driver was not paying attention.

I soon learned, however, that the Manhattan district attorney’s office would most likely not charge the driver who killed my son with criminal negligence. A New York State case law precedent known as the “rule of two” stipulates that there must be two misdemeanors for a charge of criminal negligence to be brought against a driver who kills.

Not quite, but as the writer, Dana Lerner, is a psychotherapist and a mother who has suffered the loss of her child, she can be forgiven her imprecision.  What the “rule of two” does is distinguish between mere negligence and criminality.  It can be speeding plus, or recklessness plus, or any traffic infraction plus, but it requires that a driver go beyond a mere infraction before a tragic outcome is elevated from an unintended accident to a crime.  Even the rule of two allows mundane conduct to be criminalized.  There are a lot of traffic laws.

Indeed, pretty much any time a car strikes a pedestrian, it is inherently reckless. Drivers are required to both drive safely and allow pedestrians the right of way. There is no authorization to drive carelessly, recklessly, negligently.  These are people in control of 2000 lb. missiles that can take the life of another human being in an instant. It’s really not too much to ask that they drive them with the utmost care.

But to err is human.

The wrongfulness of human conduct is not, contrary to the belief of New York’s new mayor, determined solely by outcome.  Any failure to pay close and fastidious attention while driving could result in someone being harmed, even killed.  And the pedestrian killed is, by definition, innocent. And the needless loss of life is tragic.

That doesn’t make for a crime, and doesn’t make the driver a criminal. I get that a mother who has lost her child needs some sense of revenge, some degree of comfort in knowing that the person who did this to her, to her baby, will pay for what he did.  Much as we can explain how that won’t bring Cooper back, no one who hasn’t lost a child has the right to deprive a mother of her feelings.

The criminal law, however, isn’t a means of vindicating feelings, no matter how deep and awful the loss.  Even the best of drivers, the most diligent and attentive person behind the wheel, will have a momentary lapse.  Perhaps the problem is cars themselves, which demand much from their drivers to be used safely.  Perhaps the problem is our attention span, or our rushed society, or traffic boredom and anger, or stress.

New York City is an awkward place for cars.  While roads are clogged beyond belief, most New Yorkers (meaning the real ones, who live and work in Manhattan, not the poseurs who live next to cow fields upstate)  don’t drive in the city. Many don’t even have drivers licenses.  We use public transportation to get around, and hold no great love for the idiots who block the box in their Porsche Boxsters and Chrysler-built Maseratis.

But no matter how little regard you have for those pretentious foreign car owning, exhaust-fume spewing, drivers, or American-car-driving-foreigners in the case of medallion cabs like the one that struck down Cooper, they are not criminals because they drive like foolish humans.

Like Lerner, I too am deeply concerned about what I perceive to be the growing lack of attention by drivers,  the selfishness as reflected by people’s doing whatever is good for them at the expense of the lives of everyone else on the road, the apparent inability to care enough about adhering to the norms of the road so you don’t needlessly risk harm to others.  The others include me and my children, so yeah, I care.

Is the solution to create more crimes, to criminalize neglect, to turn everyone who suffers from human foibles plus a tragic unanticipated outcome into a prisoner?  As furious as I was at the gal in the car next to me on the Long Island Expressway yesterday for veering in and out of lane as she held her smartphone close to her face, laughing uproariously at something, I don’t want her imprisoned. I just want her to get her head out of her ass.  That makes her a person, not a criminal.

23 thoughts on “License To Kill

  1. Patrick Maupin

    > Is the solution to … criminalize neglect? … I don’t want her imprisoned.

    If she knew she was going to be imprisoned, even if only for a few days, if she had an accident while on the cell phone, would that favorably alter her behavior?

    On the one hand, it does seem to create a slippery slope. OTOH, the evidence is overwhelming that talking on the phone (even using a hands-free system) while driving is as bad as, if not worse than, driving drunk.

    Cell phones and alcohol are both legal and both widely used (including by me), so if the likely outcomes of mixing one with driving are about the same as the likely outcomes of mixing the other with driving, I (not being a smart lawyer) have a hard time understanding why we criminalize one behavior and not the other.

    1. SHG Post author

      Is the evidence overwhelming, or have you been told repeatedly that the evidence is overwhelming so that you’ve adopted the belief despite your having no actual clue? Comparing the rates of drunk driving prosecutions with accidents caused by drunk driving, one would expect 10 times, 100 times, the number of drunk driving fatalities, but that’s not so.

      Yet, this isn’t about drunk driving (which doesn’t fall under the “rule of two,” but is enough to warrant a homicide prosecution on its own). Nor do I disagree about cellphone or texting use, which some, mostly in more rural states, argue makes me a traitor to the cause, as they argue it shouldn’t be unlawful at all. I really don’t have any problem with laws that require drivers to put their entire focus into driving.

      What this seeks is a homicide prosecution for negligent conduct, which has completely eluded you. Not a few days in jail, even though the length of sentence isn’t the point either. It’s criminalizing accidents. I gather this distinction might be lost on non-lawyers, but consider the next time you make a mistake, not out of malice, or deliberate choice, but just a plain old stupid error, and get prosecuted for a variant of murder. That’s the point. You can’t deter accidents, which is why they’re accidents and not crimes. And be very careful about making absurdly assumptive connections between cause and effect.

  2. tim

    The taxi driver failed to yield while making a left turn.

    Shouldn’t that be Uber driver? Because as we well know regular taxi drivers are too well trained and regulated to allow anything like this to happen.

  3. Patrick Maupin

    @SHG:

    [ Thanks for the link. Although, IMO, the link you posted is just as biased as the ones it attempts to correct, and the methodology is severely flawed (more lies with statistics), it did lead me to do more research. Here is a link I think is more nuanced: Ed. Note: Link deleted per rules.]

    > What this seeks is a homicide prosecution for negligent conduct, which has completely eluded you.

    No, I got that. I’ll admit, maybe I don’t get all the nuance.

    > the length of sentence isn’t the point either.

    I understand you appear certain it should not be a criminal matter.

    > consider the next time you make a mistake … and get prosecuted for a variant of murder.

    Even if I went out tonight and got completely ripped and then accidentally ran someone over, I don’t think I personally know anybody who would consider my rightly earned vehicular manslaughter conviction to be a “variant of murder,” so it seems unlikely that would be a consideration if I weren’t drinking.

    > You can’t deter accidents, which is why they’re accidents and not crimes.

    There is no question that, in general, accidents can be deterred — that is, there are actions that can be taken that vary the accident rate. There is also no question that there are some specific accidents that couldn’t have easily been deterred (absent a working crystal ball).

    There are certainly valid questions about whether ex post outcome-based punishment would be either efficacious in reducing the number of bad outcomes, or fair to the punishee. But as one who suffered numerous speeding tickets on remote sections of I-10 with no traffic in the 70s (how does a cop hide behind a single tumbleweed? It’s uncanny.) I also have my doubts about the usefulness and fairness of many ex ante punishments.

    1. SHG Post author

      You’re stuck on the drunk driving point, which I’ve already explained doesn’t fall into the rule of two. Think speeding, illegal left turn, changing lanes without a signal, etc. Focus. I know it’s hard when you’re stuck on a point, but if you do, it will enable you to realize why you aren’t getting it.

      The conduct engaged in is already all unlawful, but it’s not the conduct of speeding, but the conduct of hitting someone while speeding that gives rise to the demand for aggravated crimes and penalties. So we have an incentive for not speeding as we can get a ticket for doing so. It works to the extent it works. But we don’t hit someone while speeding on purpose, such that the conduct can be additionally changed by incentive. We may be able to prevent speeding, but we can’t prevent the accident caused while speeding independent of the speeding by punishing it as a homicide. This is a hard concept.

      1. delurking

        “So we have an incentive for not speeding as we can get a ticket for doing so. It works to the extent it works. But we don’t hit someone while speeding on purpose, such that the conduct can be additionally changed by incentive. ”

        I suspect you underestimate the complexity of people’s judgments about risk. There have been quite a few studies that shed a lot of light on this, both by traffic engineers and by psychologists. It is very very likely that additional incentives, like greater punishments for hitting pedestrians, would affect the risks they take while driving, including things like speeding, talking on the phone, and texting.

        1. SHG Post author

          I appreciate the potential that enhanced incentives offer. The flip side is the punishment for fortuitous outcomes despite the incentives. The incentives usually fail because people don’t believe it will ever happen to them, thus making the incentives inapplicable. But when they do apply, the result is grossly disproportionate punishment for conduct (the running down a pedestrian, though the wrongful conduct is speeding) that lacks the moral culpability to warrant such extreme punishment.

          1. delurking

            “The incentives usually fail because people don’t believe it will ever happen to them, thus making the incentives inapplicable.”

            This is the view that I am arguing is too simplistic. People do not actually think in that all-or-nothing way. They know they have a finite chance of hitting someone at any time, and their perception of that probability and the consequences that would follow affect their decisions.

            “But when they do apply, the result is grossly disproportionate punishment for conduct (the running down a pedestrian, though the wrongful conduct is speeding) that lacks the moral culpability to warrant such extreme punishment.”

            I think this is probably true.

            1. SHG Post author

              Economists tend toward a utilitarian theory of human behavior, and people know of, rationally assess, incentives. They must hang out with different people than I do. I know of very few people who know or care about actual legislative or judicial incentives. It’s not all or nothing, but the allocation of scarce resources. They can only wrap their head around things that matter to them at any given moment. If they’re in a rush, they drive fast. Yes, it’s simplistic. Have you met any people lately?

  4. Andrew

    Thank you for your thoughts in this post. I read the original nytimes piece when it was published and sympathized with it greatly. Nothing you wrote made me change my mind.

    This is the exact same issue we discussed a couple weeks ago about biking – creating some accountability and punishment for drivers so thy have a vested interested in not killing people. Think about how we control over dangerous driving habits. To the extent that people don’t speed, they do so because they are afraid of getting a ticket. To the extent that people don’t drink and drive, they do so because they are afraid of getting a Dui. I’m like that too, it’s just human nature.

    We need real punishments so drivers feel personally at risk. It’s fine if you don’t want criminal liability. We could make a civil remedy, where pedestrians and bicyclists (or their families) can bypass the insurance company and hold these people accountable in court.

    This should make people pay attention. Once we set an example with a couple big wins in civil court, people will start to pay more attention.

    1. SHG Post author

      I think you should go to the homes of each and every bad driver and neuter them. Let me know how that works out.

      1. Andrew

        That would actually work too. Some sort of vigilante pedestrian avenger striking at random and putting fear into the hearts of bad drivers everywhere. You wouldn’t have to go after every bad driver, just a couple high profile random cases. Sounds like a wicked comic book premise.

    2. Dragoness Eclectic

      Y’know, some of us don’t drink and drive because drinking makes up stupid and clumsy and we don’t want to bend our car around a tree. Some of us are careful around bikers and pedestrians and small children playing on neighboring lawns who might rush into the street because we care about other human beings and the idea of us accidentally killing someone is horrifying. Human law and its penalties are a tiny, distant consideration, if considered at all–the laws of physics and biology impose far deadlier penalties.

      1. SHG Post author

        Some people, like Andrew, believe that the only cure for humanity’s problems is legislative, usually criminal, as we can’t be trusted to do right for its own sake, and whatever the problems with criminalizing conduct, it’s always a better solution than not. And that’s why we have differing political perspectives.

        1. Andrew

          Not true about criminal liability. We’ve discussed many other options at our disposal, from civil torts to vigilante justice. Multiple means towards the same ends.

          1. SHG Post author

            First, read more carefully. Second, what sort of hubris makes you think that it’s up to you (or “we,” whoever we may be) to fix every problem that mankind creates?

        2. Dragoness Eclectic

          That’s a very old idea. (see: Chinese Legalism). It didn’t work very well back then, either.

    3. Anna

      Quite a dangerous thinking. Guilty before proven innocent? And in this case, guilty even when proven innocent (the guy in Emma S. case). Throw innocent people under the bus just to scare others?

  5. William

    I see people strolling hard out into the street all the time, like some pedestrian right-of-way statute is going to protect them from harm. I see people jogging so far away from the curb that there’s maybe a yard between them and the flow of traffic. People should recognize that being in the street is dangerous regardless of what the law says or how much they believe they ought have the right of way.
    Maybe the solution is for drivers and pedestrians to drive and walk knowing that everyone else behind the wheel is a human being whose hands could simply slide off the wheel at the wrong moment and cause a collision.

    1. SHG Post author

      As with the cyclists, pedestrians can be a bit too bold at times as well given that they won’t fare well in a fair fight with a car.

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