The Daily News Makes the Case for Legal Vehicular Killings (Again)

Should there be misdemeanor charges for careless drivers who injure or kill New Yorkers legally crossing the street? For the second time in a month, the Daily News editorial board says "No."

A brief recap: Last year, the city enacted the Right of Way Law, making it an unclassified misdemeanor to drive into a pedestrian or bicyclist who has the right of way. The law carries a fine of up $250 and a maximum sentence of 30 days in jail. In practice, nearly all unclassified misdemeanors get pled down to traffic violations.

Before the law took effect, NYPD would not file charges in such cases unless the victim was dead or likely to die, or an officer personally witnessed a crash. For all intents and purposes, there were no consequences for drivers who struck someone in a crosswalk but only maimed, dismembered, or otherwise injured the victim instead of ending a life. Even in fatal failure-to-yield crashes, charges were not always applied.

What has the Daily News so worked up is that, as a result of the Right of Way Law, police can now respond to failure-to-yield collisions like so:

The injustice, according to the Daily News, is that Smotritsky was charged with a misdemeanor after his negligence caused the death of another person. The rest of the piece argues, in so many words, that police should have just let Smotritsky go about his business even though he killed Yue.

So what's wrong with misdemeanor charges for careless driving that hurts people who were following all the rules? According to the Daily News:

Hello, circular argument. Driving habits like mowing down other people in a crosswalk are "generally tolerated" because traffic law was incapable of penalizing such behavior in the vast majority of cases. Enacting the Right of Way Law is what happened when New York City government decided to stop tolerating preventable injuries caused by careless drivers.

Garden-variety, non-injurious failure-to-yield violations are too rarely enforced, sure, but doing nothing when drivers ram people with the right of way doesn't fix that problem. It just reinforces the idea that failing to yield is tolerable.

Next up -- arguing that the perfect should be the enemy of the good:

This is a neat rhetorical trick. The authors keep citing the Right of Way Law's maximum 30-day sentence, not the actual penalties meted out in real cases. Meanwhile, the punishments cited to make the Right of Way Law seem out of place are not the max sentences, but penalties in the real world of plea deals, flawed police investigations, and timid prosecutors.

State law can, in fact, send someone to prison for killing another person through reckless or negligent driving. Second-degree vehicular manslaughter is a class D felony carrying a maximum sentence of seven years. The max sentence for criminally negligent homicide is four years. But those sentences are almost never applied.

By the same token, first-time Right of Way charges are highly likely to be pled down to traffic violations with no jail time.

The basic question is, does the Right of Way Law improve our flawed system of traffic justice? I think the answer is pretty clear: Creating a minimal penalty for negligent driving, where there was none before, makes the system more rational and fair, not less.

But will it deter careless driving and prevent people from getting hurt? The Daily News doesn't think so:

By all means, bring on more failure-to-yield tickets, and let's have greater certainty that there will be repercussions for aggressive or careless driving. "Sporadic" arrests are not the goal -- consistent application of the law is.

Let's also be clear that the Right of Way Law is not about "stiffening punishments" -- it's about going from zero penalty to some penalty in cases where people are actually struck. Drunk driving didn't become a socially stigmatized behavior by ticketing intoxicated motorists at sobriety checkpoints and letting them off the hook when they hurt someone.