> @LizCrotty2021's op ed calls for an explanation of how the mens rea ("mental state") aspect of criminal prosecution works, and should work in the context of #TrafficViolence. Things she was taught in law school & knows today, but which she disingenuously chooses to muddle...1/n https://twitter.com/StreetsblogNYC/status/1341611319930343424

A necessary requirement for the legitimacy of criminal punishment is that the offender's conduct be proven a "voluntary act." No punishment for something you can't prevent. But the corollary principle--that an offender is *more* culpable if s/he *intended* to cause...2/n

the harmful result--is also long part of criminal justice. We "punish the evil mind" b/c we perceive the desire for harm as criminal, worthy of punishment in and of itself; and b/c we think those who desire harm need greater deterrence in the form of greater punishment...3/n

About 100 years ago it was recognized that criminal justice would be less arbitrary if the "voluntary act" and "mens rea" requirements for criminal punishment were decoupled, and made more explicit and transparent. This was done legislatively, along with a "grading" scheme...4/n

for mens rea that established a spectrum of "culpable mental states," corresponding to different degrees of desire or expectation an offender has with respect to the harmfulness of the conduct. "Intentionality" is the highest grade of culpable mens rea--committing a...5/n

proscribed act with the intention that harm result. In contrast, one who performs a proscribed act "knowing" (though not specifically intending) that harm will result, falls a notch below an intentional wrongdoer on the culpability scale, while acting with "recklessness"...6/n

means you can be proven to have a some degree of subjective awareness that harm is likely, though not certain, to result from the proscribed act. An offender who acts with "criminal negligence" need not be proven to have had any subjective awareness of the risk of harm from...7/n

committing the proscribed act, but must be shown to have so misjudged the riskiness of the conduct, that the offender's risk-perception abilities can be said to constitute a "gross deviation" from the risk-perception abilities of a typical member of the community. At the...8/n

bottom of the mens rea hierarchy are crimes of "strict liability," for which punishment can be applied regardless of mental state, if the commission of the proscribed act is shown to have been a voluntary act (an absolutely necessary element for any criminal punishment)...9/n

A few observations before discussing whether it is appropriate to apply criminal punishment based upon a mens rea of "simple negligence" as the Right of Way Law does. First, it is much more straightforward to persuade a jury that the defendant acted intentionally,...10/n

as opposed to with criminal negligence. Take a spouses with a history of bitter conflict including battery. One spouse (while driving) kills the other (while cycling), by right-hooking the cyclist in a bicycle lane. Surviving spouse collects on a fat life insurance policy...11/n

For prosecutors it is easier to persuade a jury that "the defendant wanted to kill," that to persuade a jury that turning right without looking for cyclists reflects a "gross deviation" from how a typical driver would gauge the risks of making a right turn without looking...12/n

That is so, not only because the "gross deviation" and "community standards" concepts are harder to explain to some jurors, but also because the "typical driver" thinks it's OK to turn right without looking for traffic on the right, even that causes many cyclist deaths...13/n

Another observation regarding the 5-tier mens rea scale: the NY legislature and most others have provided for criminal punishment absent a culpable mental state, in the case of crimes of strict liability. And a third observation:...14/n

there is a gap in between "strict liability" and "criminal negligence." You can commit a proscribed act while failing to perceive a risk of harm, where that failure does not constitute a "gross deviation" from how others perceive the risk, but merely a deviation. Or, your...15/n

conduct may be in synch with community mores as to the risks of hitting a cyclist when turning right--maybe all drivers think its OK to turn without looking for cyclists--but the law requires you to take reasonable steps to ensure a turn will be safe before you make it...16/n

In either of those last 2 cases, the harmful act is done with a mental state that is culpable, yet is not charted on the mens rea scale, and is treated as "simple negligence" rather than "criminal negligence." Most prosecutors (including apparently @LizCrotty2021)...17/n

think that harmful acts of simple negligence should be addressed through civil justice--lawsuits for money damages--rather than through criminal justice--punishment. As a general matter I agree, but I think #TrafficViolence is an exception to the general rule. Here's why...18/n

Reason #1 to criminalize #TrafficViolence: it's the #1 cause of non-disease death and disabling injuries. We can reduce #TrafficViolence by making drivers more risk-mindful and risk-averse. The key tools for doing that are road design and consequences for harmful driving...19/n

If we were "all in" for road design changes to drive down #TrafficDesign to near zero, perhaps we would not need to use punishment to deter dangerous driving. But we are not. Many drivers oppose design changes to protect vulnerable street users, because those drivers...20/n

perceive a loss of convenience to them from new bike lanes, daylighting intersections, dedicated alt-mode signal phases, etc., without any added benefit for drivers, because drivers have already insulated themselves from #TrafficViolence with metal cages...21/n

So drivers reap the convenience of private motoring in pedestrian- and cyclist-rich urban streets without risk of punishment when they take life or limb with "simple negligence"--which routinely produces hundreds of deaths 10,000s of disabling injuries in NYC each year...22/n

Moreover, design changes so complete that they would all but eliminate #TrafficViolence, rendering enforcement and accountability programs unnecessary, would essentially eliminate driving, which most would deem an unfair burden on careful, responsible motorists. At present..
23/n

we need both robust design changes and robust accountability programs to deter #TrafficViolence. Licensure sanctions for dangerous driving don't work, because there is no license consequence to 80%+ of NYC tickets issued for dangerous driving (these are camera tickets)...23/n

and because many drivers will drive without a valid license. Also, NYPD won't ticket drivers who violate traffic laws while causing serious harm, unless the harm is fatal, under cops' "observed violation" and "dead or likely to die" rules. So if we are serious about...23/n

reducing #TrafficViolence, we need a driver accountability program that includes a criminal justice response, ranging from retraining (as under the Reckless Driver Accountability Act) to (in the most egregious cases) loss of motor travel liberties enforced by ankle bracelet.

But even if criminal justice involvement is necessary as a practical matter to reduce #TrafficViolence, is it fair? Yes. That's Reason #2 to criminalize severe cases of #TrafficViolence: because getting money from a lawsuit does not deliver adequate justice to its victims...25/n