Safe streets advocates are understandably excited by the prospect of a Manhattan district attorney with an interest in holding dangerous drivers accountable for the death and destruction they impose upon the city every day. But few, if any, expect radical change right away. As attendees at Tuesday’s legal symposium on vehicular crime learned, even prosecutors who pursue the cause of traffic justice are often stymied by weak laws and courts that tend to be forgiving of motorists who maim and kill.
Maureen McCormick has specialized in prosecuting reckless drivers for 14 years. She led the Kings County Vehicular Crimes Bureau in Brooklyn, and now works for Nassau County DA Kathleen Rice. On Tuesday, McCormick said she believes the state’s criminally negligent homicide statute, by virtue of its status as a Class E felony — the least severe of all felony categories — is "illogical on its face." Further, McCormick said, courts often go soft on killer drivers by twisting the language of the statute in ways unintended by the state.
McCormick cited a 2008 case as an example. Here is her account from a March Streetsblog interview:
As recently as May 2008, New York’s highest court held that a 17-year-old driver who violated his junior license by driving with four unrelated passengers, without seatbelts, and who also was speeding at 70-72 mph through a curve with a posted caution speed of 40 mph, and who lost control sending the car over an embankment and killing three of his passengers, could not be held criminally liable (People v. Cabrera, 10 NY3d 370 ). This decision alone has resulted in numerous defense motions to have cases dismissed claiming that "speed alone" or any traffic infraction "alone" is not sufficient to sustain criminal negligence. Our position is that this is nonsense.
McCormick wants state legislators to tell the courts they are misinterpreting the law. Another panelist, Oregon civil attorney and bike lawyer Ray Thomas, suggested that instead of trying to read defendants’ minds — the Cabrera case turned on the driver’s perception of risk — states should rely on objective, definable criteria. In Alabama, to cause a death while violating a traffic law is to commit homicide, regardless of intent. In Alabama, Georgia, Idaho and North Carolina, the severity of the charge stemming from a non-fatal crash depends on the extent of the victim’s physical injuries. These approaches have worked well, Thomas said. Another way to remove subjectivity from court decisions, and to reduce the chance of reversal on appeal, said Thomas, is to assign penalties to certain acts undertaken while driving, like texting.
Thomas was instrumental in the successful push for Oregon’s "vulnerable user" law. Focusing on road workers and school kids is a good way to win over police and appeal to the "protective impulses" of legislators, Thomas said. While acknowledging that Oregon, too, has a long way to go in the traffic justice arena, its vulnerable user law has singled out anyone not "encased in a steel exoskeleton," as Thomas put it, as worthy of extra care. A driver convicted of causing death or serious physical injury to a vulnerable user in Oregon must complete a traffic safety course and 100 to 200 hours of community service, or else pay a fine of up to $12,500 and lose his or her license for one year.
New York has its own vulnerable user law in the works, named after Hayley Ng and Diego Martinez, two pre-schoolers who died when an unattended, idling van backed onto a sidewalk in Chinatown. But given the horrific consequences of driver-on-pedestrian violence, such measures are abysmally inadequate. As McCormick said Tuesday, to truly be punished in New York State for killing someone with your vehicle, you almost have to be intoxicated.
Not that weak laws are 100 percent to blame. The only charge that applies to either a vehicular assault or homicide that does not require the presence of alcohol or drugs, said Peter Goldwasser of Transportation Alternatives, is criminally negligent homicide. Between 1994 and 2008, there were only 29 indictments for this crime in all of New York State, according to Goldwasser. During that period, about 10,000 people died on New York State roadways.
The third symposium panelist, Brooklyn-based criminal defense attorney Scott Cerbin, believes New York prosecutors have the tools at their disposal to dispense justice, but lack fiscal resources. Due to overwhelming case loads, Cerbin said, the majority end in pleas, which result in lighter sentences. In fact, Cerbin is skeptical that Cy Vance will be able to substantially beef up Manhattan’s vehicular crimes unit as promised, especially if the city experiences a surge in other violent crimes. McCormick agreed — to a point — likening traffic safety efforts to school art and music programs: the first to be cut when budgets get tight.
Cerbin also said that NYPD officers virtually never charge motorists with reckless driving, and prefer to issue summonses rather than make arrests. This breakdown at the point where a traffic offense occurs, be it a fender-bender or a gruesome death, illustrates what could have been the theme of the day: in the words of Ray Thomas, "perspective imposes outcome." Every level of lawmaking and enforcement — from the cop to the assistant district attorney, the state court judge to the state legislator — is populated by people who identify as much or more so with fellow drivers as with victims of vehicular violence.
Thomas argued that, since a vehicle can do catastrophic damage even with no intent to harm, a new paradigm is needed wherein driving a car is considered a privilege requiring a considerable amount of care, with commensurate consequences for recklessness. What we have instead is a system so infused by car culture that anyone outside a vehicle is considered to be tempting fate. As for other drivers or passengers who lose their lives, well, accidents happen.
Whether a cultural shift is needed to bring about changes in laws and enforcement, or vice versa, one thing is clear. To paraphrase Maureen McCormick: We have a lot of work to do.