Between 2008 and 2017, US drivers killed 49,340 pedestrians – 13 people per day, about one person every 1 hour and 46 minutes. While the amount of walking and driving hasn’t significantly increased over that time period, and while driving has actually gotten safer, the pedestrian body count has increased by 35 percent.
Massachusetts isn’t much better. Two-hundred thirty-four pedestrians and bicyclists have been killed on Massachusetts’ roads over the three past years. Because of poor record-keeping we have no idea how many more have been injured. Bicyclists suffer repeated close calls – doorings, right hooks and left turns across the cyclists’ paths, and harassment by horn-blasts at close range. And yet, most of the time, no charges were brought against the responsible driver – including the nine bicycle cases in which the death came at the wheels of a truck driven by a professional driver with a Commercial License who, one would have thought, would be held to a higher standard.
Rather, in almost every case, the starting assumption of the investigating police and the District Attorneys was that it was an unfortunately “accident,” that the driver did nothing wrong, that the pedestrian or bicyclist simply wasn’t visible or was in the wrong place. This bias wasn’t just imbedded in the professional system -- in one case where a charge was brought by Norfolk DA Michael Morrisey against a person with a record of dangerous driving violations, a skeptical jury found the driver not guilty.
A person who has unintentionally killed someone probably will suffer a lifetime of regret. There is no social value in adding jail time, although a guilty finding leading to training and community service would send an important public message. (Drivers with a history of drunk driving or injury-causing crashes may deserve harsher treatment.) However, the absence of serious scrutiny from the criminal justice system into these cases has had rippling bad effects. It reduces the public awareness that could improve drivers’ behavior and increase support for better road infrastructure and truck sideguards – which are the most effective preventive measures available. It makes it harder for the injured or their surviving families to sue for civil penalties – which also reduces the incentive for insurance companies to pressure commercial truck-delivery firms to better train their staff. And it leaves the injured, their families, and friends out on a limb of uncertainty and grief.
There are some signs of change. A group of reforming District Attorneys have been elected across the country, including in Massachusetts. The Vision Zero movement is slowly moving from an advocacy campaign to public policy in several cities. Complete Street designs are becoming more common. But as we move forward, we have to remember that the goal isn’t revenge; the goal is accountability that leads to prevention.
In the American justice system, the police investigate and do the initial evaluation of causes and potential legal violations, including on-the-spot arrests. In potential criminal situations, the District Attorneys decide whether there is enough evidence to prosecute, what laws should be invoked, and if a conviction is won what penalties to ask for. (The DA’s office may also decide which courts to file in and what judges to try to appear before.) Typically, an Assistant DA handles the case, including negotiating plea-bargain deals. The relationship between the police and the DA is not always friendly – each side may feel that the other isn’t doing its job correctly or putting enough priority on supporting the other’s efforts. And there are few institutional methods for getting them in sync beyond personal relationships.
About traffic accidents, for the most part, both sides have had a similar perspective. When Dr. Anita Kurmann was killed by the driver of an 18-wheeler truck turning illegally from the center lane after leaving the Mass Ave bridge, the police determined that the driver had no responsibility because the “cyclist was in the blind spot” despite the fact that she had been visible for the previous 16 seconds and had legal “right of way” in the intersection. The local DA’s office agreed. When Joe Lavins was run over by the driver of another big rig in Porter Square the police and DA refused to seek charges for the same reason, even though he, too, must have been visible for an extended amount of time before the driver hit him.
These attitudes are more about professional cultures than legal inadequacies. Police and DAs still hold on to the attitude that cyclists and pedestrians have the larger responsibility to watch out for themselves – which may be practically true but is not legally true. Our laws are less explicit than in Europe, where those who are capable of inflicting the most damage are assumed to bear the most responsibility for preventing injury. But US law does require that people use the road in a manner than doesn’t injure others. And there are numerous laws that do explicitly give pedestrians and cyclists rights to be on the road.
The pedestrian and bicycling communities have tried pushing back by putting together a series of short training outlines for use by police that reviews the laws and regulations concerning bicycling – something few officers know much about. There are several packages of laws now pending in the Legislature that would close loopholes and clarify responsibilities. The Vision Zero Coalition is supporting three bills:
>>Legislation requiring the hands-free use of mobile telephones while driving, submitted by Senator Mark Montigny (SD1383), Representative Joseph Wagner and Representative Paul Donato (HD1534). Assuming that ways can be found to keep this from becoming yet another way for police to harass non-white drivers, it has an excellent chance of passing.
>> An Act to reduce traffic fatalities Senator William Brownsberger (SD847) Representative Jonathan Hecht and Representative Mike Rogers (HD1653). This package contains several important measures, all of which almost passed in the last session:
- Lowering the default speed limit on state highways and parkways in thickly settled areas from 30 mph to 25 mph
- Equipping state and state-contracted trucks with safety side-guards and additional mirrors to minimize blind spots and reduce fatalities of people walking and biking
- Requiring that drivers stay 3 feet away from ‘vulnerable road users’, defined to include people walking and biking; roadside workers like tow-truck drivers and State Troopers; people using wheelchairs, scooters, skateboards, roller skates, etc.
- Setting a safe passing distance of vulnerable road users of at least three feet
- Developing a standardized analysis tool to be used to report crashes and incidents involving a person biking or walking
>>Automated enforcement -- this bill will allow municipalities to place red light cameras and speed cameras in high-crash locations with careful data-privacy safeguards and regulations preventing their mis-use as speed-traps.
Governor Baker has also submitted a multi-component bill covering similar points and adding ignition interlocks for “Operating Under the Influence” (OUI) violators applying for a hardship license, making seatbelts a primary offense, and clarifying the current regulatory confusion about scooters and other new mobility devices.
In Boston, Mayor Walsh has set up a Vision Zero team and submitted his own automated enforcement bill in the Legislature that includes prohibitions on “blocking the box” in designated areas and passing a stopped school bus.
There is some discussion at the municipal levels of banning overly large trucks from being on streets they are physically too large to safely turn into. (Montreal and Brussels, among other cities, already have these kinds of safety rules.) Similarly, discussions are continuing on Beacon Hill about ways to give cyclists legal protection when crossing roads via designated crossings connected to multi-use paths. Perhaps, if more police departments began requiring their officers to spend time riding a bicycle – a good addition to their physical fitness regimen! – they would have a deeper understanding of how roads look from that perspective.
Better laws are good. Interpreting those laws in context of actual road-injury situations is another, and that is mostly shaped by professional standards among police and prosecutors. When I go to the barbershop I regularly ask for a trim on the sides and “just a tiny drop off” the top. I say that I want to keep it a bit long. And it is invariably cut short. It’s clear that no matter what I say, they hear “crew cut.”
When police break up a fight and see someone holding a bloody knife, they are likely to jump to several incriminating conclusions. But when they come to a road crash, with an injured pedestrian or cyclist lying in front of them and a driver standing next to a potentially lethal weapon, the standard starting point is to wonder what the hurt person did wrong to cause their own injury.
This biased default has some similarities to the propensity of law enforcement to assume that African-American males are potentially dangerous assailants needing to be subdued, or that young people hanging out have done something wrong. And so it is good news that a new breed of District Attorneys are being elected. Their common theme is the need to reduce the horrible inequity of our justice system and its patterns of racially- and income-biased harassment, prosecution, and mass incarcerations. They oppose the focus on “petty” crimes as the standard for policing in non-white neighborhoods or as ways to crack down on the mentally ill or drug addicted. They will end the cash-bail-and-forfeiture cycle that keeps the poor in jail. They think that restorative justice and strengthening community ties is more helpful than simple punishment. They want to expand the role of the DA’s office from support-the-police prosecution to a broader range of justice-promoting community involvement.
In Suffolk Country (Boston and Chelsea), newly elected DA, Rachael Rollins, is one of those reformers. Pedestrian and bicyclist advocates and lawyers are hoping that her vision is broad enough to recognize vulnerable road users as part of the constituency deserving protection. As a DA, Ms. Rollins has no direct influence on civil matters; the police report to the Mayor, not to the DA. However, her concerns about eliminating rather than providing opportunities to increase the racial disparities in the application of the law are widely shared. And there is great hope that she will increase the attention paid to driver-caused injuries since the investigation is triggered by a person having already been injured rather than any discretionary (and therefore potentially biased) decision.
And it seems like she will. She has met with advocates, pledged collaboration with Vision Zero coalition events, appointed a liaison to the bicycling community, and is open to letting advocates provide insights in crash investigations where there are serious injuries or death.
This is an amazing start. It can only be hoped that there are more steps to come. Perhaps the DA’s office can be more transparent about why a “no charge” decision was made in cases involving pedestrian and cyclist victims, make sure that there are a few Assistant DAs trained and available to handle these cases, perhaps assign a victim/witness advocate to work with the injured or surviving families, and (delicately) use her influence to improve the way police investigations are conducted to eliminate the default assumption that the non-motorized person was at fault.
Once we’ve begun dealing with these body-wrecking incidents we can then turn to the mind-wrecking incidents of near misses and deliberate harassment, mostly directed towards bicyclists, including brush-bys, running people off the road, and even outright road-rage attacks using the car or getting out and going after the bicyclist.
Thanks for feedback on earlier drafts to: Galen Mook, Adam Kessel, Joel Feingold, Andrew Fischer.
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