The Times Blows a Chance to Tackle America’s Broken Traffic Justice System

In the United States, it’s pretty much legal to drive into and kill a cyclist, as long as you’re sober and stay at the scene. Writer Daniel Duane made that point last weekend in a New York Times op-ed titled, “Is it O.K. to Kill Cyclists?

The New York Times weighs in on the issue of traffic justice, with a largely laudable but imperfect story that has inspired some thoughtful responses. Image: ##http://www.nytimes.com/2013/11/10/opinion/sunday/is-it-ok-to-kill-cyclists.html?_r=0## New York Times##
The image of a devil-red fixie rider with knuckle tattoos was one sign that something was off-kilter in a recent piece about traffic justice in the New York Times. Image: New York Times

The question mark in the headline was the first sign that the piece wasn’t going to take a firm stand, even though Duane sets up the essay with some good insight:

When two cars crash, everybody agrees that one of the two drivers may well be to blame; cops consider it their job to gather evidence toward that determination. But when a car hits a bike, it’s like there’s a collective cultural impulse to say, “Oh, well, accidents happen.”

If that was the high point of the article, the low points come when Duane equivocates, suggesting that “everybody’s a little right” despite the fact that people are capable of far more harm when they’re behind the wheel than when they’re in the saddle.

Bike Snob (a.k.a. Eben Weiss) called Duane out for concluding that the response to reckless drivers who bear no consequences should be for cyclists to “obey the letter of the law”:

We deserve respect for being human, and it ends there. Yet we’re supposed to be good little boy scouts and girl scouts–even when it’s more dangerous for us to do so–to prove we’re deserving of not being killed? That’s just stupid and insulting.

Where Duane and the Times failed, the Economist nailed it, pointing to the differences between an American justice system that imposes little or no consequences on deadly driving, and the Dutch system of strict liability. In the Netherlands, writes the Economist, “if a motor vehicle hits a cyclist, the accident is always assumed to have been the driver’s fault.” Even in cases where a cyclist is breaking a rule, the onus is on the motorist to explain why the collision could not have been avoided. As a consequence, American bike fatality rates per mile are five to nine times higher than in this famously bike-friendly country.

And, far from being victimized, motorists in the Netherlands also reap the safety benefits from this legal system:

Does this result in rampant injustice to drivers when accidents occur? No. It results in far fewer accidents.

In the end, writes the Economist, people’s willingness to accept a strict liability system “depends on how much one values human life, as against the inconvenience of having to look in the rearview mirror more often.” Will such a clear case for reforming America’s broken traffic justice system ever appear in the Times?

  • Jonathan Krall

    I loved the Bike Snob critique, but agree that
    a central point missed (not discussed) in the article (blog): Here in the USA we don’t have a program
    to discourage simple, fatal, negligent driving. We instead either grant
    absolution
    (a token ticket) or impose punishment (life-ruining jail time). We need
    a middle ground, such as an automatic six-month license suspension in
    cases involving death (with exceptions for extraordinary circumstances).
    Such a program would actually change behavior.

  • Duane had me interested until the “everyone is a little right” comment, at which point I spat coffee on the computer screen. Cyclists SHOULD be outraged at inattentive or dangerous drivers and cops who don’t seem to care. But motorists “…furious at cyclists for clogging roads and flouting traffic laws” are not seeing reality and Duane is spouting the same old false propaganda. First of all, there are so few cyclists on our roads that we simply cannot clog them even if we wanted to (the occasional Critical Mass ride notwithstanding). An even half-assed student of traffic can point out what is clogging major roads and highways such as the Long Island Expressway (NY), Kalanianaole Highway (Hawaii) or countless other arterials, highways, and expressways: single occupant motor vehicles. Then comes the question of flouting traffic laws. Again, a casual student of traffic need only stand by any road with a speed gun, or any traffic signal where right on red is allowed, and tally up the statistics, as I have, on motorist misbehavior, and find it often approaches 50%. Cyclists, like motorists, do what they can get away with in the name of self-interest. So spare me the self-flagellation exhibited in the Times piece as though we are lawbreakers in a sea of compliance.

    Duane makes a good point. How do we break the prejudicial barriers that every cyclist faces who goes to court to recover damages, testify to a criminal act by a motorist, or lobby his or her legislative bodies for an enhanced penalty/enhanced motorist responsibility bill more in line with the Dutch model? Perhaps we do need to go the extra mile by not behaving badly, since we are pretty obvious out there due to our being the exception rather than the rule. Votes count, and a 1% mode share doesn’t add up to many votes in the transportation elections.

    Thanks to the Economist for giving a dispassionate outsider’s opinion on how screwed up the American Traffic Injustice system really is. Perhaps the Economist has more leverage than those of us in the trenches. Question is, what can we do to fix it?

  • Six month seems light, six months should be the minimum, given only in cases where the driver can demonstrate that he/she was not speeding or breaking any other traffic laws.

  • Stiff sentences don’t make a difference if they are never imposed. Some of the enhanced penalty laws being proposed do what Mr. Krall suggests: provide sentences that WILL be imposed, and therefore WILL deter dangerous or negligent behavior.

  • Kevin Love

    Someone whose criminal negligence KILLED someone should face life-ruining jail time. Maybe that would deter criminal negligence. At least while the killer car driver is in jail, the driver will not kill anyone else.

  • The comments on the economist piece are utterly depressing. Makes me want to move to Europe or some place where the average person holds reasonable views regarding what is acceptable behavior on the road.

    On the other hand, the comments here are virtually the exact opposite. More people need to go over to the economist and contribute some balance to that comments section.

  • Yeah, agreed, six months would be a good start, but just a start.

  • Agreed. Barely a start, but we do have to start.

  • Joe R.

    Cases involving death or serious injury where the driver is at fault should result in permanent license revocation. One way we can win is by decreasing the number of drivers so they’re less effective as a voting block. Permanently revoking driving privileges in the case of death or serious injury is certainly a good start. Add DWI to that list, and in a decade probably half the adults in the country will be banned from driving for life. Once that’s the case, you will have broad public support for cycling and public transit.

  • Geoff Bowles

    “if a motor vehicle hits a cyclist, the accident is always assumed to have been the driver’s fault.”

    Seems like dangerous ground. Most western legal systems require causation to be proven.

    This was why Florida did not charge Dontae Stallworth with DUI manslaughter. The pedestrian he hit was jaywalking, ergo the pedestrian caused the accient

  • Kevin Love

    In New York, driving is a privilege, not a right. Suspending someone’s driver’s licence is therefore not a punishment. It can be done administratively by the state.
    I suggest an automatic six-month driver’s licence suspension for any car driver that caused death or life-changing injuries. At the end of the six months, the driver must prove to an administrative panel that he was not negligent or else the suspension becomes permanent.

    Criminal charges would proceed through the courts independently.

  • Determining who was at fault is mostly a civil, not criminal matter. In a criminal case, Western systems begin with the assumption of innocence, but in a civil case someone has to pay for the damages. Even in the case of license revocation, a driver license is a privilege, not a right, so it is not necessary to presume innocence.

    I don’t know the specifics of the case you mention, but even if a pedestrian were jaywalking, that does not mean the motorist was not speeding or distracted by a text message or engaging in some other unlawful behavior that would put the motorist at fault.

  • Kevin Love

    We don’t even have to go to Europe to find Strict Liability examples in action. Just gaze over the New York border into Ontario. Where car drivers are automatically deemed negligent and responsible for any crash until they prove otherwise. Here is the law there:

    “When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.”

    Source:
    http://www.elaws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#BK286

    This is one reason why the government of Ontario brags about having the safest roads in North America.

  • On the other hand, they have Rob Ford.

  • Kevin Love

    That’s Toronto. There goes their reputation for being boring and polite!

    More seriously, Mr. Ford is an excellent argument for an Australian-style preferential ballot. That would prevent the sensible candidates from splitting the vote, allowing the right-wing crazy to win.

  • A so-called “level playing field” might work better if not for the overwhelming prejudicial nature of these traffic investigations. The “there but for the luck of the draw go I” mentality that lets motorists off the hook makes the notion of reconstructing a fair causation history and holding motorists accountable a monumental joke. I increasingly think an administrative revocation or suspension as a preemptive measure, which can be contested to prove one was not negligent, should be examined.

    A better model than the current legalized murder system might be along the lines of those investigations that occur after a plane crash and the certification that goes into flying in public space. An independent body moves in, takes possession of black boxes and other information, and investigates, looking for human or mechanical error or system error, i.e., something called “normal accidents”. If human error is found, it is held accountable. We certify airline pilots to a high standard. We also certify motor vehicle operators, but set the bar so low one cannot crawl under it. The basic problem is the acceptance of universal vehicle operation. No one assumes any half-wit can fly a 737 or even a Cessna in public space, but we accept that any half-wit should be allowed to drive. That, perforce, means the bar is low enough for Cletus Spuckler to drive.

  • WoodyinNYC

    Cute? Not so much. When you grow up, read about Marion Barry, the twice Mayor and current City Council Member of Washington, D.C., and then throw your stones.

  • FLYINGCHOPSTIK

    I say revoke their license for 10 years. Then require them to seek a learner’s permit, take driver’s education courses and re-take the driver’s test all over again. —It would also be good to throw some 300 hours of community service if the motorist caused a death.

  • Larry Littlefield

    I’ll say it again: in NYC I see a correlation between cyclist deaths and press coverage demonstrating hostility to people who ride bicycles.

    Since Citibike has been a success that could no longer be lied about, press coverage justifying hostility has gone down, and so have cyclist deaths.

  • Mr. Ford is an even better argument for instituting recall.

  • Kirby

    Sadly, I don’t think we’re going to see much change in the current legal views on cycling accidents in the next year or so. While I think this is a critical debate, improved infrastructure to protect cyclists seems like the best route to safety, increasing driver awareness while providing a truly safe space – sharrows just don’t cut it. That said, Mr. Duane has a strong point in saying that cyclists should obey the law, al least a bit more thoughtfully. Here in San Francisco weekly police stake outs have been initiated not by rabid drivers, but local pedestrians who are simply afraid of us. The most disheartening part is that as soon as the police disappear, everyone is back to flying through busy crosswalks, further provoking a bad name and negative media to feed people’s distrust and potential road rage.

    As a friend of Josh Alper, who we lost to an undoubtedly reckless driver last week, I feel that a lifetime revocation of a driver’s license is reasonable, if not a moderate punishment for a life. Hopefully politicians will soon see that the lives lost are not simply a fact of life but something we can fix. I’d like to see bicycle and pedestrian awareness implemented in all driving education, a sense of responsibility instilled in drivers, and ANY kind of repayment for their carelessness.

  • Just about any situation where I’m in control of some dangerous contraption and someone gets hurt or property is damaged by my (in)actions the responsibility is assumed to be mine. Please explain why only the automobile driver is assumed not responsible for the danger they are controlling?

    And referencing a single legal case (especially one involving FloridaMan) may be helpful in some tiny court, but not in a discussion of what is right and appropriate.

  • Kevin Love

    Driving is a privilege, NOT a right. Revocation of a driver’s licence is not a punishment!

  • EricBoucher

    300 hours of training before getting that liscence back would be good too.

  • EricBoucher

    This would solve a number of problems with the current system of no penalty’s ever. I think part of the reason no gets long sentences or life sentences for vehicular crimes is if you take the driver out of the vehicle most people would agree they likely pose little threat to society so its hard to justify imprisonment. Revoking a license permanently would be easier to get behind. If the driver is a danger only as a driver, then take away their privilege to drive. It would be an easier sentence to get, it doesn’t completely ruin their life (as much as some may want that it gains nothing) and it removes the risk.
    Edit: not that I think jail time should be off the table. But their should be options before jail specifically designed to make streets safer.

  • Joe R.

    I’ve said the same thing at times when advocating for permanent license suspension-namely that the majority of drivers who kill or injure people are only dangerous to society behind the wheel of a motor vehicle. Legally, since driving is a privilege, not a right, there is no legal right of appeal or other hurdle we need to cross. Indeed, if the state suddenly wanted to revoke everyone’s license for no reason at all it could, and people would have zero recourse because driving is seen as a privilege.

    I have mixed feelings about jail time. On the one hand, society likes to see people who kill or maim punished. On the other, it’s very costly to incarcerate people, you need to jump steep legal hurdles to do so, and in this case you’re basically making an otherwise productive member of society a permanent ward of the state because they’ll likely be unemployable once they have a felony conviction. I think permanent license revocation represents a good way to balance all these issues.

  • Andy

    I struggle with the thought of permanent suspension. While drivers always need to be alert, and always need to be expecting someone to jump out into the street, there is the possibility that something truly accidental could happen. Kids do run out into streets, and even driving along at 15mph, a sudden ball-chasing kid popping out from a line of parked cars could be a tragic accident. Putting an otherwise productive person out of a car forever would be harsh in this case.

    HOWEVER, the true “accidents” are few and far between. The majority of the issues seem to be from inattentive drivers, assuming that as long as they are driving less than double the speed limit and not too drunk, that all is fine and anything in their way is to blame. Those drivers should certainly get punished severely with community service hours for a very long time and license revocation for a few years.

    In any case, when a person dies as result of a motor vehicle collision, it should 100% be listed as vehicular manslaughter. It should be up to a judge as to how severe the punishment is, but setting legal minimums seems to be necessary since nearly all cases seem to get off with nothing more than a small fee (if that!).

  • Joe R.

    The way I phrased it the license revocation would only take effect if the driver was at fault. Yes, we need to recognize that there are sometimes circumstances where a motorist literally couldn’t do anything different to avoid a collision, although those times are usually pretty rare. So long as they take reasonable precautions (and driving at 15 mph in an area with pedestrians qualifies as a reasonable precaution) they would have a valid defense against license revocation.

  • People are not very good at assessing the true risks to themselves.

    Look at how many people are more afraid of their child being kidnapped than of their child being harmed while in the back seat of a motor vehicle. How many people are more afraid to go in the ocean b/c of sharks than drowning? How many people fear flying but have no similar fear of long car trips?

    Same goes for pedestrians and cycling. Perceived harm is much greater than actual harm from cyclists, and reverse from motorists.

    Police should be above this bullshit and need to make enforcement decisions based on real risks, not public perception.

  • Jonathan Krall

    The point is to change behavior, not to mete out punishment.

  • Jonathan Krall

    Someday someone will write a dissertation on the pathological ways people converse or write about driving (maybe several have already been written). Much of the conversation (“everybody drives like an idiot and no one can fix it”) seems to have the purpose of collectively excusing or even justifying automotive violence.

    That is, I agree.

  • Geoff Bowles

    its an example of the broader legal premise…a court must find someone to have caused an action in order for them to be liable for it

  • Kenny Easwaran

    I think there’s a tendency to overestimate the deterrent effect of criminal punishment. The supposed deterrent effect of jail time is used to justify three strikes laws, and mandatory minimum sentences for drug use, and now here. But I suspect that in all these cases, the person who is committing the crime is almost unaware of the particular jail sentence, and thus can’t be deterred by it. The only purpose actually served by the jail time is emotional revenge by victims of crime. But as a result we get whole neighborhoods decimated by the criminal justice system.

    We need adequate legal recourse to prevent criminals from repeatedly harming others. But jail time just isn’t actually worthwhile in most cases, and causes too many side effects to the person and the community.

  • Funny how suddenly we’re in a court of law. Driver of car hits something, cop shows up and says no fault. I guess missed the cross-examination phase in there.

    Swinging sword around oblivious to my surroundings: obviously endangering others. Driving car around oblivious to my surroundings: could get in an accident.

    Maybe I’d better reword that:
    “Just about any situation where I’m in control of some dangerous contraption and someone gets hurt or property is damaged by my (in)actions the responsibility is assumed to be mine. Please explain
    why _ONLY_ the automobile driver is assumed not responsible for the danger they are controlling?”

    ‘Innocent until proven guilty’ doesn’t apply if it’s not applied evenly, nor does it apply at the point of citation.

  • PC

    “In the Netherlands, writes the Economist, “if a motor vehicle hits a
    cyclist, the accident is always assumed to have been the driver’s
    fault.” Even in cases where a cyclist is breaking a rule, the onus is on
    the motorist to explain why the collision could not have been avoided.
    As a consequence, American bike fatality rates per mile are five to nine
    times higher than in this famously bike-friendly country.”

    As a *consequence*? That’s a pretty extraordinary claim, presented with absolutely no evidence whatsoever to back it up. I would want to see at least something resembling evidence that the Dutch system of presuming some road users guilty until proven innocent actually has something–anything–to do with the lower fatality rates in that country before even considering introducing something here in the US that is so radically at odds with the way most of us conceive of justice.

  • PC

    Please establish that “_ONLY_ the automobile driver is assumed not responsible for the danger they are controlling” rather than simply asserting it without substantiation.

  • You have read the streetsblog article, the NYTidmes article, and the commentary here, right?

    Try the first quoted section at the top of the page.

  • MBDElf

    Not going to get into an argument here, since evidence WOULD be nice to see — but the “strict liability” legal concept they speak of here IS in effect, and IS effective. BTW, it’s not “guilt”, so much as “responsibility”, a legal hair-split, but it’s there….

    Strict liability is geared for financial accountability, rather than legal guilt, which is the ONLY way it’d work here in the USA.

ALSO ON STREETSBLOG

Vancouver Gives a Bridge Lane to Bikes

|
New York isn’t the only city that’s experimenting with closing roads to improve traffic and create better conditions for pedestrians and cyclists. Today, from Streetsblog Network member Human Transit, we hear of a bridge in Vancouver where a lane of car traffic has been given over to cyclists: Happy cyclists coming off the Burrard Bridge […]

Refereeing the Raging Debate Over the “Specialness” of Cyclists

|
There’s a tussle going on right now about how cyclists should ride on city streets. Yesterday’s Streetsblog Network post took a snapshot of this debate, excerpting the WashCycle’s response to a Sarah Goodyear piece in Atlantic Cities. Sarah wrote that cycling is no longer a mode for daredevils and mavericks weaving through traffic. Some cities now […]

WSJ Invites More Ignorant Anti-Bike Zealots to Sully Its Pages

|
Law professor Frank H. Buckley seems to want to be the next Dororthy Rabinowitz. That is, he wants to gain notoriety by clinging to old and unsafe street designs while, simultaneously, shoring up the Wall Street Journal’s reputation as a bastion of change-averse curmudgeons. Done and done. Buckley wrote an op-ed in Friday’s Journal about […]

Oklahoma City Weighs 3-Foot Passing Rule — For Cyclists, Not Drivers

|
Lots of places have three-foot passing laws requiring motorists to give cyclists a safe buffer while overtaking them. Now one Oklahoma City legislator, Eighth Ward City Council Member Pat Ryan, has come up with a new, passive-aggressive spin on the passing law. Local elected officials will soon consider a piece of “safety” legislation that would require cyclists to […]