Why New York Needs Strict Criminal Liability for Traffic Violence

In the last ten days, nine New Yorkers were killed by traffic violence. In each case where the driver responsible was sober and stayed at the scene, NYPD has announced, often within hours, that there was “no criminality suspected.” How can the deaths of so many fall completely outside the scope of the criminal laws?  The answer lies in the traditional emphasis in criminal law of punishing the “evil mind.” Meaningful driver accountability requires that we move past “evil minds” and implement strict criminal liability for traffic violence.

Most criminal laws require a finding of both a wrongful act and a blameworthy state of mind on the defendant’s part.  This reflects reasonable concerns that innocents not be punished as criminals. As technology has made it possible to cause widespread harm unintentionally, reckless and even negligent wrongdoing has in some cases come to be treated as criminal. But the traditional emphasis on a blameworthy state of mind continues to disfavor the prosecution of drivers for traffic violence.

Even the least blameworthy mental state that can support a criminal charge, that of criminal negligence, requires proof that a defendant’s failure to perceive a risk constituted a “gross deviation” from what a reasonable person would have perceived in the same circumstances. Given the risky conduct so common in traffic — such as speeding and failure to yield — it is difficult to convince jurors, who may do these things themselves, that such acts constitute a “gross deviation” from what is reasonable.

While “criminality” in a traffic context requires finding a “gross deviation” from what is “reasonable,” the average juror’s definition of “reasonable” is the baseline level of risk-taking in everyday traffic. That baseline risk-taking results in hundreds of deaths and thousands of serious injuries each year, but effectively serves as a norm against which only the most egregious cases of traffic violence can raise a suspicion of “criminality.”

How can our criminal justice system rise above this acquiescence to traffic violence? We all have a role to play, bringing a higher notion of street justice to our service as jurors, and sharing it with others. Prosecutors have a special role in framing and applying social norms in determining which cases are prosecuted, and in persuasively articulating those norms to juries. And prosecutors must rely heavily on the investigation work of police officers, some of whom too readily give up the search for evidence of criminality on the philosophy that “accidents happen.”

But a more direct exit from the misery-go-round of socially accepted traffic violence lies in the enactment of “strict liability” criminal statutes that do not require proof of a blameworthy state of mind. The reason police do not announce “no criminality suspected” in cases involving drunk drivers is that vehicular manslaughter and vehicular assault are strict liability crimes that apply whenever a driver kills or injures another while impaired by drugs or alcohol. The liability is not entirely strict — the driver is given the opportunity to prove that the crash would have occurred even in the absence of impairment — but there is no need to prove that the driver intended harm, was aware of a risk of causing harm, or “grossly deviated” in failing to perceive the risk of harm.

The need for more strict liability crimes to deter traffic violence is apparent from the many tragic deaths in recent days. A strict liability criminal statute could be enacted for drivers who injure or kill pedestrians on the sidewalk, such as Martha Atwater or Mansoor Day. Such a statute would presume criminality, without any need to prove that the driver’s mental state “grossly deviated” from what is “reasonable.” The driver should be allowed a chance to rebut the presumption of criminality, for example, by proving that the vehicle was knocked onto the sidewalk by a second vehicle without fault by the driver of the first. But claims that the driver mysteriously “lost control,” or “didn’t see” the curb or the pedestrian victim, would provide no defense.

The strict liability approach was proposed yesterday in connection with the case of Raizy and Nathan Glauber, a young couple who were killed in a high speed-crash by a driver who fled the scene by foot, evading timely evaluation for drug or alcohol impairment. In response, State Senator Eric Adams yesterday proposed legislation under which such a driver is presumed to have been impaired. This presumption would trigger strict liability under the vehicular manslaughter and assault statutes, meaning that there would be no need to prove that the driver who killed the Glaubers was aware of or even disregarded any risks. In Adams’ words, “An accident scene would become a crime scene once a person departs after the incident.”

Would strict criminal liability for striking pedestrians with the right of way in the crosswalk be fair? The tragic death of 6-year-old Amar Diarrassouba, who was killed in the crosswalk by the driver of an 18-wheeler while he walking to school in East Harlem, demands that we ask this question. Such a law would create a presumption of criminal fault against a turning driver who strikes a pedestrian with the right of way. The key question raised by such a measure is, would it result in the criminal prosecution and conviction of too many people for conduct that our society does not consider blameworthy enough to be labeled “criminal”?

This question is easily answered, in light of the conduct which New Yorkers have long considered worthy of a presumption of criminal fault. These include public urination, using a park after the 1 a.m. curfew, or bicycling dangerously on the sidewalk – all of which are misdemeanors that can permanently blemish an offender’s criminal record. How can it be that a cyclist endangering pedestrians on the sidewalk may be presumed a criminal, but there is “no criminality suspected” when a motorist actually strikes and kills on the sidewalk or in the crosswalk? An expansion of strict liability criminal statutes for drivers is exactly what New York City needs to stem the tide of traffic violence.

Steve Vaccaro is an attorney with the Law Office of Vaccaro & White.

  • Anonymous

    Eloquent writing. I hope our legislators read it! (And better yet, heed it.)

  • Streetsman

    Please tell me where to go to sign the petition

  • Ari

    Finally, someone is talking about the “criminality” issue with some sense.  Very good points and well written.

    Unfortunately, Vaccaro’s last paragraph falls apart a bit.  He asks the following question rhetorically: “How can it be that a cyclist endangering pedestrians on the sidewalk may
    be presumed a criminal, but there is “no criminality suspected” when a
    motorist actually strikes and kills on the sidewalk or in the crosswalk?”  That question was answered very clearly in the third paragraph: “Given the risky conduct so common in traffic — such as speeding and
    failure to yield — it is difficult to convince jurors, who may do these
    things themselves, that such acts constitute a “gross deviation” from
    what is reasonable.”

    Most people drive (at some point).  And most people drive negligently (at some point).  Most people do NOT piss in public or bike on the sidewalk.

    Yes, strict criminal liability may help.  But I think safety infrastructure, red light cameras, speed cameras, and general enforcement of traffic laws would be better.

  • Mark Walker

    An excellent and thought provoking piece. But when I started reading it, I somehow assumed the author would be discussing civil liability as an alternative to criminal liability. What options do victims or their survivors have in civil court? Could civil suits act as a deterrent to dangerous drivers if a broadly based movement makes a lawsuit inevitable when someone dies or is badly injured? And how would this affect the role of the police, who might be called on to give evidence in large number of civil suits? Again, great piece, but I wonder if there’s a follow-up.

  • Ari,

    Thanks for your comments.  I agree that infrastructure and automated enforcement is the #1 priority. 

    I take your point that bicycling on the sidewalk is more easily characterized as a “gross deviation” from the norm than a driver failing to yield to, and striking, a pedestrian.  But that’s the point.  We are ineffective in deterring or punishing traffic violence as criminal negligence, because the test is “gross deviation from normal,” but traffic violence is, essentially, “normal.” I believe that in certain clearly delineated situations, acts of traffic violence should be presumptively criminal–no matter how prevalent incidents of such violence may at present be–with an opportunity for the driver to rebut the presumption. 

  • Mark,

    There are a number of advantages for crash victims when there is a criminal prosecution.  The state takes the lead and bears the expense in proving liability.  If the defendant pleads or is found guilty in the criminal action, then liability is conclusively presumed in the companion civil action, and the only issue for a jury is the amount of damages that must be paid. Crash victims and their survivors also have an interest, though less tangible, in an adjudication of guilt, which is a more authoritative pronouncement of fault that a civil verdict, and can result in punishment as well as fines. Retribution, deterrence and vindication of the public interest in seeing justice done are all more effectively accomplished with a criminal prosecution.

    In contrast, a civil suit may mean nothing more than a payout of the minimum liability amounts of $25,000 for an injury, or $50,000 in the case of death.  There is little or no deterrence value, because typically the insurer pays the entire liability and the malefactor pays nothing and faces no penalty.

  • KillMoto

    I bet if you put an average person in one of those real time MRI machines and make them watch videos of a typical commute, you would see a lot of anger and rage – something akin to an evil mind.

  • Anonymous

    So, in other words, if enough people shot others dead, it would become normal, right?

  • Anonymous

    Holland already has strict liability (in civil actions) for accidents involving motorized vehicles and peds/bikers. 

    Steve,

    To what extent does the State’s general refusal to investigate accidents and issue violations hurt victims’ (or their estate’s) ability to collect in supreme court (civil branch)  under the doctrine of negligence per se?

  • The whole “evil mind” thing seems very foolish to me.  How can a juror or anyone else possibly know?  I have zero skills at mind reading or mental telepathy.

    On the other hand, most people have excellent skills at seeing human actions and behavior.  These are the things that can, and should, be punished by the criminal law.

  • Jarek,

    Where the police and/or prosecutors establish violations or criminal liability, the plaintiff in a civil suit can rely on those as conclusive evidence of negligence. Even if police simply gather and preserve evidence at the crash scene, they provide invaluable assistance. But in many cases, the police role is limited to making an erroneous or even biased transcription of that the crash participants claim. Which are as much a hindrance as a help. Nonetheless, a crash victim has extreme difficulty obtaining any compensation for medical costs or other basics, unless the police are summoned to the scene and issue a report.
    In my view, it would be far better to have civilian crash investigators from an agency like DoT gather and preserve evidence at scenes, with the ability to involve police where appropriate. Sent from my BlackBerry® by Boost Mobile

  • Ben Kintisch

    JarekAF is right. Holland has strict liability laws. In Germany, any motorist who injures a vulnerable road user (cyclist or pedestrian) is arrested and prosecuted. It is up to the driver to prove their innocence in the crime they have perpetrated. For any Streetsblog readers who have ridden a bike in Germany, Holland, or Denmark, you probably noticed as I did that in addition to there being great bike infrastructure, the drivers are cautious and always yield to cyclists and pedestrians – because, among other reasons, they know that if they hurt someone, they will be prosecuted.

    My question for Mr. Vaccaro – how and why did so many Western European countries get to this place with laws that are so strongly crafted to protect vulnerable users and hold drivers accountable?

  • New Yorker

    You are doing incredibly important work here, Steve. Keep it up. Just as Ralph Nader did for safety inside the motor vehicle, you can do for safety outside the motor vehicle. 

  • Anonymous

    I’ve given this some more thought.  Perhaps we need a middle category in between “no criminality” and “strict liability.” 

    On one side, there are true “accidents,” when there is no fault, or the fault lies with the victim.  On the other side, there are cases of criminal negligence, such as DWI.  But most crashes are in the middle and simply involve a driver screwing up.  Unfortunately, a screw up while navigating a 2-ton vehicle can kill someone else.  I’ll call this middle category “strict non criminal
    liability,” which could result in: loss of license, community service, perhaps short jail time, and automatic insurance liability.  This would result in more thorough NYPD crash investigations and – eventually – higher insurance premiums, due to the increased exposure to payouts.  Higher insurance premiums would bring the personal costs of driving more in line with the societal costs.

    Politically, we can punish this middle type of fault as harshly as the “strict liability” variety.  The general public won’t allow that for the same reason Vaccaro pointed out – everyone knows that they are capable of doing the same thing “by accident.”

  • Anonymous

    Sorry, I meant:
    Politically, we CAN’T punish this middle type of fault as harshly as the “strict liability” variety.  

  • New Yorker

    I think Ari_F_S is really on to something there. I wonder if Steve Vaccaro knows of any other examples or cases or categories of law where a “strict non-criminal liabiltiy” has been created? 

  • Where to go to sign the petition? Right here: http://signon.org/sign/nypd-ticket-deadly-drivers?source=s.tw&r_by=362557

    And better yet, get out in the streets. Join our Criminality Suspected Ride: http://times-up.org/index.php?page=free-rides-and-events-for-march-and-april

    Steve will be there…

  • Ben,

    At the risk of gross oversimplification, there is a fundamental concern of abuse of process by government in the US legal system (some of which was inherited from the UK); the legal traditions on the Continent may be different. The requirements of proof beyond a reasonable doubt, jury trial, the rule against compulsory self-incrimination, proof of culpable mental state, and other rights of criminal defendants make prosecutions difficult in the US. There are many virtues to this system, but it does not work very well to punish and deter traffic violence.
    Finding people guilty of crimes and putting them in cages is not my favorite fix to the problem, although it has its place in appropriate cases. I would put greater emphasis on infrastructure fixes, automated enforcement, and, perhaps the most neglected approach, driver’s license suspension/revocation with meaningful follow-up that actually keeps unlicensed drivers from driving.
    Sent from my BlackBerry® by Boost Mobile

  • Joe R.

    @Ari_F_S:disqus I think you have a pretty good idea here, although I think the only punishment should be loss of license, preferably for good in cases of death or serious injury. I’ve said many times regarding these types of incidents that I’m more concerned if the driver is allowed to drive again than with any other types of punishment. Indeed, we should punish reckless or even incompetent driving mainly by suspending or revoking license privileges. In the case of suspension after an incident, you would have to pass a much harder driving test before getting your license back. Also, suspensions should be reserved only for incidents where there was no death or serious injury. I think the threat of permanent license revocation would be a big stick which might push the worst drivers to either clean up their act before they kill people, or just turn in their license if they know they can’t. And we also need to start a database for those with medical conditions which make them unfit to drive. If you have any condition where you can suddenly black out or get seizures, that should mean an end to your driving privileges. Same thing is you have conditions which physically prevent you from being able to control a vehicle, such as slowed reflexes or bad eyesight. Society needs to lose the idea of driving being near universal. That’s really what perpetuates the mess we’re in. Upwards of 75% of adults in my opinion can’t safely operate a motor vehicle regardless of how much training they receive. The roads would be a lot emptier also if we got rid of three-quarters of licensed drivers, making things safer for everyone else. It’s not just the numbers of bad drivers on the road which are an issue, but the huge numbers of vehicles, period.

  • Ari,

    Thanks for your comments. The question of whether wrongful conduct should be considered criminal or merely tortious (remediable by a civil suit only) is separate from the question of what the redress should be. I agree that meaningful, enforced license suspension or revocation is in many cases the best redress against drivers who kill or injure through serious negligence. The potential harshness of the criminalization of negligent driving can also be softened by creating presumptions that the driver can rebut, by affirmatively proving they were blameless. There are many ways to fine-tune the fix. Sent from my BlackBerry® by Boost Mobile

  • Thanks for the article, but criminal convictions aren’t likely to deter most of these car accidents. Maybe they will get the person responsible locked up — but that is not really a solution I don’t think

  • Gneiss

    Nick – calling car crashes ‘accidents’ implies that blame cannot be assigned and the people involved were essentially powerless to prevent the event from taking place.  We need to change the discussion in this country to get people to understand that their car is not a moving living room, but a dangerous piece of heavy machinery. Changing laws is one way we can do that.  If people understood they’d be criminally liable for breaking traffic law and killing or injuring someone, don’t you think they’d be more careful on our streets?

  • swifty

    If a manmade system kills and gravely injures people there is something very wrong with the system unless of course that is its purpose.

  • Zach

    Bravo.

  • Nick,

    Thanks for your comment.  The relationship between criminal punishment and deterrence is complex and open to debate.  Ben suggests that prosecution influences driver behavior in other countries, but I can’t say for sure it would in the US.

    I would add that a criminal conviction, even for a relatively trivial offense like public urination or bicycling on the sidewalk, can have serious consequences in the US.  Many institutional employers and other organizations screen for and automatically disqualify applicants with criminal records.  It may be that temporary or permanent loss of driving privileges is the more socially desirable consequence to visit upon drivers who injure or kill with serious (if not egregious) negligence, rather than criminal conviction.

    Something to explore in future Street Justice posts!

  • jrab

    Counselor Vaccaro, thank you for laying out this important point so clearly and succinctly. I for one was not aware that the “strict liability” standard applied for DUIs, or that it could be applied selectively to sidewalk crashes.

    I like to go back to New York City’s approach to kids falling out of windows. This was recognized as a problem in the 1970s, and eventually a solution was reached: require landlords to put bars in windows so that kids couldn’t fall out. What I like about this is that it allowed safe infrastructure to be put into place without blaming anyone, not the reckless children, not the inattentive caregivers and not the greedy landlords. Another positive thing is that it is obvious and self-reinforcing. It is obvious what the bars are there for and because they are pervasive in NYC, the standard is set; if your kid is in a room without bars on the windows, there is something wrong.

    One thing that the Street Justice series has helped me become more aware of is that motoring is a system, and there are all kinds of reinforcing aspects in the system, from advertising to overpowered motor vehicles to highway building to workers’ compensation insurance. Changing the infrastructure to rule out violent and lethal crashes is something that local authorities can start doing, something that doesn’t involve changing laws or public attitudes.

  • I agree that strict liability is worth pursuing (for me is the only worthwhile legislative action, on the penalty side) but the author overstates the case: “The reason police do not announce “no criminality suspected” in cases involving drunk drivers is that vehicular manslaughter and vehicular assault are strict liability crimes that apply whenever a driver kills or injures another while impaired by drugs or alcohol”.

    The potential to convict is one factor, but there are less technical factors that matter as much. Opponents of drinking and driving took their case to the public as they took it to lawmakers, and successfully convinced many people to see intent to kill in the decision to drink and drive. This is even though many of the same people still drink and drive, in quantities that typical detection equipment may measure as criminal. We’re not very technical in our thinking really, and neither are our cops.

    I think the public can only rediscover vehicular negligence through the same messy thought process: that the decision to speed, to run a light, or to turn through crosswalks that you can not see, can be seen as intent to kill the same as the decision to drink and drive. I recall watching emotionally manipulative television advertising about drinking and driving in the 90s. Where’s our ad campaign against negligent vehicular killing?

    When the public is convinced that vehicular negligence is as deadly and avoidable as drunk driving — and especially when appropriate resentment is felt after such a killing — that is when the automatic blather about “no criminality” will cease. It will also lead to better laws that make convictions easier, and I’m not sure which comes first, but simply changing the story that is told every time someone is killed is crucial.

    Thanks goes to Streetsblog, and now Gothamist as well, for starting to change that story. If any advocacy groups want to step it up with advertising campaigns that don’t mince words about the fatal costs of negligent driving in New York, I’m ready to donate.

  • Daniel Winks

    @n8han:disqus The problem is that driving, period, kills.  Whether negligent or the most attentive and conscientious driver possible.  Conservative estimates of the number of people killed, in the US, by the pollution from driving show numbers in the hundreds of thousands, per year, and that’s at the low end of the estimations I’ve seen.  One doesn’t need to run someone down in the streets to be guilty of murder, simply turning the key is enough.  If you’re truly interested in helping stop the motor vehicle murder, the only acceptable way is to simply be against motor vehicles, period.  Negligent or not, driving kills. 

  • swifty

    There is a saying:

    “To a hammer everything looks like a nail.”

    The same thing applies to lawyers.

    In fact, it pretty much applies to us all: we work with what we know.

    This is why this discussion here is skewed in the wrong direction and is off the critical path to achieving a real solution; though a couple people seem to understand the crux of the problem.

  • swifty

    Daniel Winks is absolutely correct.

  • swifty

    Daniel Winks is absolutely correct.

  • Hassan

    No terrible idea.

  • David Otunga

    The written piece is truly fruitful for me personally; continue posting these types of articles.
    attorney herndon

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