

How do you define a crime?


I am a huge proponent of laws encouraging the safe operation of motor vehicles.  All to often, drivers committing reckless, or even intentional acts of violence against cyclists receive absurdly mild penalties for their transgressions.   In many instances, like the facts surrounding the deaths of Hayley Ng and Diego Martinez, drivers responsible for the deaths or injuries are not charged with any crime.

In response to the lack of criminal charges being brought for drivers causing severe injury or death to pedestrians and cyclists, a pair of cycling advocacy groups, the New York Bicycling Coalition and Transportation Alternatives have successfully lobbied for the introduction of a bill pushing stiffer penalties for drivers whose actions cause harm to pedestrians and cyclists.  The details of that bill are covered in Jenn’s post from last week.  Essentially, the bill aims to modify Section 1456 of the New York State Vehicle and  Traffic law to include stiffer fines and harsher sentencing guidelines for individuals who fail to exercise “due care” while operating a motor vehicle and cause injury to others.

This amendment creates an interesting legal quandary for the legislators as it may reinvent how a person’s actions or failures to act could make them criminally liable.

“Due care” is a legal concept that is one of the cornerstones of establishing negligence in a civil trial.  First year law students spend the better part of a year deciphering various cases with absurd factual situations to establish, through examination of minute factual details, whether or not a defendant exercised due care.

Rather than drag you all through that, I’ll simply give you the quick legal definition of how one exercises  due care.  To act with due care,  a defendant must show that his or her actions were reasonably prudent under the circumstances of the event in question.   This is the gloriously nefarious  “Reasonable Person Standard,” with which jurors in negligence cases must wrestle when coming to a conclusion on a defendant’s liability.  The issue of due care and the reasonable person standard are points of contention in nearly every civil trial seeking to label a defendant’s actions as negligent.  Its a difficult gray area that allows for compelling legal arguments on either side of the fence in civil trials.

However,  for what it lacks in strict guidelines or application in the civil arena, when criminal punishment is introduced into the equation, the question of due care and the reasonable person standard becomes starkly concrete.  Simply put, it has been long held that a failure to exercise due care, that is, garden variety negligence, is not in and of itself justification for criminal punishment.

Our criminal system is almost universally designed to punish actions that we deem are criminal, not in-actions or failures to act.  With rare exception,  a person cannot be held criminally liable for a failure to do something he or she should have otherwise done.  This, is simply the realm of civil negligence law, where a failure to act reasonably can produce liability for a defendant, causing them to pay monetary damages to the plaintiff.

There is a big difference between paying a civil judgment and going to jail, or even paying fines to the state.   When a civil defendant loses a case and is forced to pay a civil judgment, he is essentially paying to put the plaintiff in the position he or she would have been absent the defendant’s negligence.  This is not punishment per say, but rather, a way of simply evening the score, such that a negligent defendant bears the economic burden of his or her foolishness, rather than another party.  This does not take into account pecuniary damages of course, but I’ll leave that be for now.

When criminal fines are assessed or jail time is sentenced, victims do not receive any personalized benefit.  Rather, the state is saying the actions of the defendant injured society generally and thus, he or she must repay society, in the form of the state, either by paying a fine to the state or serving time in prison.    In the criminal arena, since a defendant is being punished, he or she must affirmatively do something to justify the punishment, while in the realm of civil negligence, a defendant is simply restoring the plaintiff to his or her pre-incident status quo.

All of this legal mumbo-jumbo creates an interesting dichotomy when real world facts are brought into the equation.  An individual can do up to a year in jail simply for unlicensed operation of a motor vehicle, while the state has no recourse to pursue the man who negligently left his vehicle in gear when he got out of it, causing it to hit and kill two young children.

Is this fair?  Certainly not.

Should prosecutors have statutory recourse through which an action like this can be criminally charged? Absolutely.

Should the legislature mix the concept of due care and criminal liability, blurring the realms of civil liability  and criminal guilt?  Absolutely not.

The issue with the bill at hand is that it criminalizes any wavering from the reasonable person standard that has been the cornerstone of negligence law since the famous English case of Vaughn v. Menlove in 1837.  Presently, injured plaintiffs (or in the most tragic scenarios, their estates) can seek, through a personal injury or wrongful death action, monetary damages for injuries caused to them by a defendant’s breach of the duty of care.  Of course, the committing of of a crime does not preclude a civil negligence action as well; but it is well established that a crime requires more than simply breaching the duty of care.

In New York, a defendant must have one of four specific mental states accompanying his or her action to be found guilty of a crime.  Purposefully, knowingly, recklessly, and negligently are the four basic legal mental states.  Note, strict liability offenses like speeding require no specific mental state, but typically bare lessor penalties to similar offenses that do require proof of a mental state (for example, reckless driving).

Now, the legal definitions of purposefully, knowingly, recklessly, and negligently, all are basically the same as they are in the real world.  Since we’re talking about a statute that uses language borrowed from civil negligence, I’ll focus on the mental states of negligently and recklessly.

A defendant acts legally reckless when he or she throws caution to the wind.  The prosecution has to prove that the defendant was aware of a certain risk his actions presented to others, and that he pursed that action anyway.  The defendant may not have intended to cause the harm that he did, but he knew his actions could potentially cause that harm.  Basically, the defendant was willing to roll the dice on a perceived risk, without concern for possible injuries it would cause others.

Now in a civil trial negligence, as we’ve already seen, is simply a failure to act with reasonable care.  The defendant didn’t perceive any risk necessarily, but if the jury decides that he should have perceived a risk, that defendant will have to pay.  The difference between these two states of mind is substantial, one says a defendant knew what he was doing and disregarded saftey, while the other reprimands a defendant for not having recognized a risk.  Essentially saying the defendant  should have known better.

A criminal negligence standard is a sort of hybrid of criminal recklessness and civil negligence.  In criminal negligence, the due care standard is set a bit higher than it would be in a civil case.  Its more akin to gross negligence.  Essentially, to prove criminal negligence, a prosecutor must show that everyone except the defendant would have recognized his action as reckless.  This is notably different from the reasonably prudent standard applied in civil cases.  The reasonable man, essentially the least fun guy at every party, is the standard with which a civil defendant is held too.  Now criminal negligence requires that every person other than the defendant, not just the stick in the mud, would have recognized the recklessness of the action taken by the defendant.  This distinction is critical.  It makes a finding of criminal negligence, and thus  punishing a person for a failure to do something, a much more difficult task than simply proving civil negligence.

Taking all of this into account, and looking at the bill in question, we simply have to ask what standard should be applied.  As it reads, the bill uses a simple negligence standard which would be relatively unique among criminal statutes.  This may be an ideal way to protect pedestrians and cyclists from dangerous drivers.  It would force the point that even run of the mill negligence committed by a driver, resulting in an injury or death to a non-motorized user of the roadway, should be a crime.  However, such an seemingly insignificant wording in the language of the Vehicle  and Traffic Code could also present a challenge to the entire understanding of the application of the Penal Law of New York.  Its critical that the legislation be drafted carefully, as to avoid language that could later be deemed unconstitutional or otherwise challenged.

There’s no question that the actions by the driver that killed Hayley Ng and Diego Martinez should garner criminal punishment.  Certainly they meet at least a standard of criminal negligence, if not outright recklessness and he should be pursued on those grounds.  However, the necessity of a new statute, allowing even run of the mill negligence to be labeled as criminal is questionable.  It would open a flood gate of potential for appeals in convictions based on its wording.  Rather than making a very powerful law with punishments for even mild negligence, the wording of the law would more likely simply cause its downfall in the Appellate Courts.  Because of this, it is critical that we lobby to make the law fit within the concepts of criminal negligence and recklessness, rather than reinventing the wheel by applying civil negligence concepts in the criminal arena.

Categories: General
Eric Schillinger

10 Responses

  1. Jefe says:

    More criminal laws? Gee, that has worked so well before, why not extend it to bicycle safety? No. The United States locks up more of its Citizens than any other democracy in the World and our crime rate is the highest. It is already illegal to run people down on purpose. That is why that California doctor was sentenced to five years in prison. We do not need more criminal laws. The drivers who are reckless because they do not know any better need to be educated. (e.g., the ones that yell at you to ride on the sidewalk). The “road predators” are violating established laws and will not be deterred by incremental increases in punishment. Making everything a crime does not promote respect for law, it cheapens it.

  2. Sarah Rain says:

    Thanks for this; you gave a clear explanation of something about which I at least at little/ no understanding of.

    Slightly but not entirely tangential- a big part of the problem here, in my opinion, is that the vast majority of us (including many bicyclists when they’re not on the road!) think it’s normal to drive carelessly. Handing something to the kids in the backseat, messing with the stereo, etc. really shouldn’t be considered okay when one is handling a 2-ton vehicle (i.e. a lethal weapon). As a cyclist, while I encounter the occasional driver who’s really out to get me, the vast majority who endanger me are just plain careless in ways seen as acceptable.

    Jefe, I think one way to help make it the norm for drivers to remember every time they are behind the wheel that they have the responsibility to be considering other people’s lives is to codify that expectation as part of the legal code. Education helps, yes, but how many people wore seat belts before it was the law, even though virtually everyone knew they were safer? 14%. Laws can change cultural norms.

  3. Daleyplanit says:

    Didn’t want tp post this in the comments, but there’s no where else I saw to ntofify the blog owners…

    A bit of a cross-post but…

    Albany County announced it has completed the purchase of nine miles of trail on December 30th – more info can be found in the “getting there” blog. Thought your readers would like to know 😉

  4. ljp says:

    and I believe that Schenectady just got money to “connect” the Mohawk River paths east and west of the city that currently have a large gap…..

  5. Kyle says:

    It appears the concept of due care already exists in the VTL. Appropriately, right in section 1146(A) that the Hayley Diego law amends. The addition of penalties, then, doesn’t change the standard of care. Just want your thoughts – thanks!

  6. Good points and very well written. Thank you.

    You close with the following line:


    Your point is well taken but poorly placed. Having read this blog, how many people are going to be energized to act on your sage advice? I hope we will, but I suspect we won’t. What will the placards read in the hands of the rally goers? What will we chant?

    I am deeply committed to bicycling for transportation, but I must admit I can’t muster the energy to attend important transportation planning meetings let alone push legislators to more carefully craft legislation.

    You are clearly the master of this domain. Please, for all of us, make it happen and report back. You are our only hope!

  7. Randal – I encourage you join me in the fight. As devoted as you are to bicycling as transportation, I encourage you to become more engaged in the activism that makes riding possible.

    An easy thing we can all do is write our assembly persons, encouraging them to take action against DOT’s planned implementation of a rumble strip policy that includes secondary highways ( If this policy goes into effect it could be the death knell for cyclists of all types. Please take fifteen minutes to contact your elected officials and ask them to kill this idea.

    If we don’t all actively work to improve cycling, we’ll find it gone before we knew what hit us.

  8. Gary Toth says:

    Eric – I agree that this is an unnecessary law. Thousand of bills with no hope of passage are introduced every year just so legislators and lobbyists can say “Look what we tried to do to help you.”
    Laws which create special clsses of victims are a slippery slope – killing is killing, why is it worse in some cases because of who the victim was or what the perpetrator was thinking?
    Cyclists must be wary of calling for special protections just because they are cyclists – this smacks of elitism and the backlash will hurt us more than it helps. Drivers detest reckless and careless drivers just as much as we do. Admittedly, they are better protected from them while surrounded by a few thousand pounds or armor, but I’m willing to bet that more auto drivers and passengers are killed and maimed by those who don’t “exercise due care” than cyclists and pedestrians, simply because there are so many more cars out there.
    Don’t make more unenforceable laws, enforce the ones we already have.

  9. Thanks for the encouragement to get involved. Rumble strips seem to be a topic around which you will more likely garner involvement. I am not sure, though, that I am one of those cyclists. Here is a link to the NYBC positing on the topic (yours didn’t work for me).

    I have pedaled on roads with the rumble strips and I have so far enjoyed having them there. I take comfort knowing that they may save my life by waking up the operator of a motor vehicle who might be drunk, distracted or sleepy. When I pedal, I am good and awake and never have trouble avoiding the strips. It is much easier to be distracted or sleepy while operating a motor vehicle. While I am a very careful when I operate a motor vehicle, one day the strips might alert me of a lane departure and stop me from hitting a cyclist. As a cyclist and a caring person, I would never be able to live with myself if I made such a terrible mistake.

    As far as road architecture making roads unsuitable for bicycle racing (a point made on the NYBC site), frankly I don’t give a hoot. I would rather a road be made safe for transportation pedalers who use the road everyday than made suitable for a race that comes through once a year.

    Are we so sure we should oppose rumble strips? Seems like I might be in the minority here, but as a pedaler, I am used to it.

    Thanks again for trying to get me involved.

  10. Randal – A road with a wide shoulder may allow cyclists to ride to the right of the rumble strip. This may be appealing to you, but think about the number of secondary highways with narrow shoulders that people ride on regularly. If DOT installs rumble strips on those shoulders, which is the issue we’re concerned with, there will be no shoulder left to ride on.

    If a narrow shoulder is turned into a rumble strip, the cyclist will have two choices – ride in the lane, or don’t ride at all. Once forced into the lane, I imagine the concept of riding with traffic or having to ride on or across a rumble strip to avoid a driver who does not leave safe passing space will quickly make this “safety feature” much less appealing.