Rage in South London, a tragedy in Fort Greene - and why it matters to punish bad drivers

It was a frustration as intense as any I’ve ever felt. I’d just been hit as I rode across Newington Causeway, near Elephant & Castle in South London, by another cyclist who’d ridden fast through a red light. Yet, when I made it clear I planned to call the police, he picked up his bike and rode off as fast as he could. A mixture of anger and frustrated impotence welled up inside me. The other rider, I realised, would face no consequences at all for prioritising his own convenience over my safety.

I’ve recalled how I felt following that incident in March 2009 several times in the last few weeks as I’ve contemplated New York City’s response to some of the appalling tragedies on the city’s roads. New York’s law enforcers often seem to shrug off instances of astonishingly poor negligent driving – including many that kill entirely blameless people – as casually as that rider six years ago picked up his fixie and rode off. For example, Marlon Sewell, who drove his SUV onto a sidewalk in Fort Greene on December 6 and killed Victoria Nicodemus, currently faces only two,relatively minor charges: one for driving without a licence and the other for driving without insurance.

Attendees at the vigil for Victoria Nicodemus: killed on the
sidewalk but, as far as Brooklyn law enforcement's concerned,
hey, it's the kind of thing any of us could do.

At a vigil at the site of the crash on December 22, Victoria’s brothers and a series of politicians all lined up to demand Mr Sewell be prosecuted “to the fullest extent of the law”. I recognised anger and frustration similar to what I felt following the crash at Elephant & Castle - though clearly, given the crash’s gravity, theirs was immeasurably deeper and more intense.

It’s a frustration that people concerned about street safety in many parts of the world share. UK cycling and walking activists often express astonishment at the low level of charges that drivers who kill or maim people in the UK face and at the apparently light sentences facing those convicted.

Yet I also occasionally hear dissenting voices. Isn’t it ironic, they ask, that activists who mostly doubt the appropriateness of harsh prison sentences call for them over road crashes? Rabi Abonour, a valued member of New York’s street safety movement, supplied such a voice after Nicodemus’s death, writing that he was “uncomfortable” with the calls for murder or manslaughter charges.

4. We have huge problems with criminal justice in this country. Putting more people in jail doesn't fix anything.

— Rabi Abonour (@rabonour) December 7, 2015

“We have huge problems with criminal justice in this country,” he wrote. “Putting more people in jail doesn't fix anything.”

It’s a complaint that someone writing in the UK could also, to a lesser extent, make, given the UK’s unusual propensity compared with other European countries, for  putting people  in prison.

Pushing for more enforcement, Rabi went on, was almost certainly going to end up meaning more people of colour were prosecuted than white people.

“We need to fix the racism of our criminal justice system before we push for more felony charges against dangerous drivers,” he wrote.

The critical question is how to balance the appropriate demand that drivers face consequences for their bad behaviour with the understanding that the criminal justice system is an imprecise, often unfair tool for achieving that goal.

Occasion for liberal guilt: the corner where I got into a row
that ended in a driver's receiving a worryingly
disproportionate fine.

 I should stress that I yield to no-one in my propensity for liberal guilt. I continue to feel uneasy, for example, about the punishment meted out to a car service driver who grabbed for my camera and bike and yelled abuse at me in March 2014. The driver – who was angry that I tried to take a picture of his vehicle blocking a bike lane – was fined $3,050 – an excessive amount, in my view – after he failed to turn up at the Taxi and Limousine Commission hearing about the case. Drivers who knew how to game the system – enter a guilty plea for far lesser charges and have the gravest counts dropped – generally faced fines of no more than $300. His punishment left me feeling I’d participated in a rather grubby business. There is a tendency across the US criminal justice system for prosecutors to use Draconian charges to scare defendants into striking a plea bargain. It’s unsurprising – and deplorable - that there are many reports of even the innocent being scared into accepting such deals.

Yet those of us on the political left often, I think, misunderstand a critical part of the criminal justice system’s role. The system certainly exists to deter criminals and to reform those who have already committed crimes. But it is also vital that the system expresses society’s rage at those who violate its rules and do unjustified harm to others. There is an inevitable and appropriate element in many criminal sentences related to exacting retribution for the wrongdoer’s violation of the norm that members of a society should not do unjustified harm to one another. It is a vital part of society’s valuing of people’s property, health and lives that it should be so.

New York criminal justice is relaxed about bad driving -
and people wonder how the streets end up looking like this.

It seems to me, based on media reports, that a criminal justice system that valued human life appropriately would indeed charge Marlon Sewell with serious offences resulting in a prison sentence of at least a few years. Sewell’s licence had been suspended in March and he was cited three times for speeding in one week in November. Witnesses say he was driving too fast when he mounted the sidewalk. He can have been under no illusions either that he was legally free to drive or that his driving was of an acceptable standard. The system currently plans to treat Mr Sewell’s killing of her as essentially little more than a matter of not having the right paperwork in order.

While it is, of course, fatuous to call the crime murder – it lacked the targeted malice for that – it can be only because the killer was a car driver that the case is currently being treated differently from other deaths through negligence. It is hard to imagine that if Sewell had been driving drunk – the one type of negligent driving most US prosecutors currently take seriously – he would be facing such minor charges.

Yet the tragedy of many criminal justice systems worldwide lies less in how they treat people like Marlon Sewell once they’ve killed someone than in their readiness to let matters get that far. New York City’s authorities essentially believe it more important that people should be free to drive around the city as they please than that the unlicensed or uninsured should face regular checks to prevent them from doing so. The authorities view it as more important that traffic should flow freely and drivers’ privacy be respected than that 30-year-old Ms Nicodemus should be able to walk down a sidewalk unmolested by speeding vehicles. It is at this stage – where a tendency to dangerous behaviour can be detected, challenged and corrected – that the criminal justice system should be working, in Rabi’s words, to “fix” things.

Two drivers block the bike box while a third runs a red
to make an illegal left turn: scenes from a culture
of consequence-free bad driving

The logic of the existing system, meanwhile, reflects grubby realities about US justice that both Rabi and I would like to alter. Unfettered driving is tolerated at least in part because it is the means of transport that has come to seem “natural” for the US’s rich and powerful. Many in authority significantly underestimate driving’s drawbacks because those who suffer the pollution, deaths and injuries are disproportionately poor and, consequently, members of ethnic minorities. While Mr Sewell is black and Ms Nicodemus was white, the concentration of car ownership among the better-off means that well-off whites are disproportionately likely to be killer-drivers. Poor members of ethnic minorities are disproportionately likely to be their victims.

None of this is to say that those concerned about street safety around the world should shrug their shoulders at the shortcomings of their criminal justice systems and push for harsh punishments for dangerous drivers regardless. It is vital, for example, that cities like New York increase their dependence on automated cameras to detect routine speeding and right-of-way violations. Such a move would, I have argued before, help both to reduce the problems caused by police officers’ racial biases and to prevent appalling incidents like the death of Sandra Bland in a Texas jail after she was stopped for a nonsensical, minor violation. Activists should insist that in traffic enforcement, as in non-traffic crime, law enforcement officials develop plans to detect people who are apt to cause harm to others and seek to nudge them with minor punishments – points on their licences, compulsory retesting or restrictions on their licences – designed to make them address their behaviour and attitudes. Many of New York’s streets are also long overdue redesigns that would encourage better driving.

Allen St in Chinatown one recent morning:
a scene from a city that lets drivers off the hook.

It remains clear to me, nevertheless, that a driver takes on a serious responsibility when he or she starts driving in a car. It is impossible to believe that Marlon Sewell, after multiple run-ins with the law over his driving, can have been unaware how serious the consequences of his behaviour could be. As a result of his negligent driving, he has taken away everything the 30-year-old art curator had and much that her family and boyfriend had. The horror of the event, it seems to me, is less that people are calling for Mr Sewell to face serious charges for his actions than that there is such profound moral confusion over it. The New York Daily News, for example, bafflingly quoted an apparent witness to the tragedy as largely exonerating Mr Sewell, saying that he would have Ms Nicodemus’s death on his conscience forever. The real villain, the piece alleged, was a bystander who, dazed after witnessing the crash, took a bite from the pizza she had just bought.

Standing at the site of the crash on Wednesday with others, it was both horrific to contemplate what had happened there and all too easy to imagine. Other drivers kept venting their frustration at the slight congestion from the vigil by honking their horns, blocking crosswalks and exhibiting the kind of behaviour that contributes to New York City’s appalling street safety record. As Ms Nicodemus’s family and colleagues talked about her, the tragedy was not only that she was clearly a unique and talented individual but to think of how the near-daily other tragedies on the city’s streets must be wiping out others just as brilliant and loveable.

An installation that Victoria Nicodemus'
colleagues made after her death: likely
to prove an empty plea as long as bad driving
is effectively ignored.

A harsh sentence for Mr Sewell would not, of course, either bring back the woman he killed or on its own do much to solve the deep-seated problems. But there was also an unmistakeable sense at the vigil that the criminal justice system had been complicit in contributing to her death. It is appropriate to feel a surge of anger at the behaviour of drivers like Mr Sewell. Good societies must demand that people who breach the law so flagrantly face serious consequences.

It is obviously correct that the criminal justice system’s biases should be eradicated. It  is obviously correct that unthinking, harsh punishments solve nothing. It is also obviously correct that the US  has relied on prison too much to solve its social problems. In particular, the US has imprisoned far too many young black men for drug offences that in a better-ordered society would not be offences at all.

Yet it is equally clearly true, it seems to me, that a system that defines Marlon Sewell’s driving on December 6 as warranting no more than two warrants for technical violations is morally bankrupt. It is a system that will continue to be incapable of preventing other people – mostly poorer, more marginalised people than Ms Nicodemus – from dying. Their being crushed on sidewalks, in crosswalks and bike lanes by drivers will then be dismissed by the authorities as little more than an understandable slip.