TRAFFIC JUSTICE: ACHIEVING EFFECTIVE AND EQUITABLE TRAFFIC ENFORCEMENT IN THE AGE OF VISION ZERO.

• Author: Conner, Marco

"No goal is more ambitious than zero [traffic fatalities], but at the same time no other goal is acceptable." (1)--New York City Mayor Bill de Blasio

TABLE OF CONTENTS Introduction 970 I. The U.S. Pandemic of Traffic Violence 973 II. Vision Zero: A New Approach to Address the Pandemic 975 A. What Is Vision Zero? 976 B. Equity in Vision Zero 979 III. Racial Disparities in Police Traffic Enforcement 980 A. Understanding Police Traffic Enforcement 980 1. Traffic Injury Responses 980 2. Traffic Safety Violations 981 3. Discretionary Traffic Stops 982 IV. Deterrence and Dangerous Driving 987 A. Mothers Against Drunk Driving: Inspiration for Effective Enforcement 987 B. Understanding Deterrence 988 1. Initial vs. Residual Deterrence and Specific vs. General Deterrence 989 2. Perceptions of Likely Apprehension and Legal Consequences 989 3. Legitimacy: Justice as Fairness 991 V. Achieving Effective and Equitable Traffic Enforcement in the Age of Vision Zero 992 A. Achieving Effective Traffic Enforcement: Deterrence Lessons Applied 993 B. Automated Enforcement Technology 995 C. Achieving Constitutional and Just Traffic Enforcement: Lessons Applied 1000 D. Beyond Police Traffic Enforcement As We Know It 1002 Conclusion 1004 INTRODUCTION

In 2016, more than 40,000 people lost their lives in traffic crashes in the United States, (2) marking the third consecutive year of increases in traffic fatalities. (3) Many view increased police traffic enforcement and more aggressive prosecution as part of the solution to this violent pandemic, (4) in part because driver actions--like speeding, texting, and driver inattention--contribute to an estimated ninety-four percent of those traffic crashes. (5) At the same time, a recent shift in public discourse has shined a light on decades of racially disparate policing and criminal justice practices. (6) Horrific high-profile killings of A Mean-Americans during police traffic stops reveal only the surface of our troubled race relations and a failed enforcement and criminal justice system in the United States, where Black (7) drivers are far more likely than White drivers to be stopped by police, (8) even though contraband is possessed less often by those Black drivers, (9) and where "African-Americans are far more likely than whites and other groups to be the victims of use of force by the police." (10)

In recent years, many cities have renewed their efforts to reduce traffic fatalities and serious injuries, some setting the bold goal of eliminating them altogether. (11) In New York City ("NYC") and elsewhere, this goal, named Vision Zero, has become government policy, for which police traffic enforcement is considered a vital component. (12) However, given the racial inequities in our criminal justice system, the disparate stops of Black drivers, and fatal outcomes of traffic stops, cities and transportation planners must ask whether they can defend promoting police traffic enforcement and increased prosecution to achieve their goals of preventing traffic deaths and injuries. Critically, they must ask whether such measures work, and whether there are more effective alternatives to current practices.

This Article examines the role of traffic enforcement, analyzes its efficacy to deter dangerous driving, and suggests a new framework for traffic enforcement suited to the goals of Vision Zero. It argues that the primary goal of Vision Zero-related traffic enforcement must be to create long-lasting general deterrence of dangerous driving behavior if cities are to reduce crashes and eliminate traffic fatalities and serious injuries. Significantly, the Article highlights deterrence theories and concepts of fairness as central to understanding solutions to dangerous driving.

The enforcement policies advanced in this Article focus on deterring future dangerous driving, in line with the goal of Vision Zero. Therefore, retributive justice, that is, punishment imposed without an extrinsic social purpose, is not discussed. The role of public prosecutors will only be discussed tangentially, even though prosecutor's offices play an important role in enforcing dangerous driving offenses. Additionally, physical changes to road infrastructure, so-called engineering measures, will only occasionally be discussed, even though such measures are critical to changing dangerous driving behavior and mitigating human driver error. (13)

Finally, this Article references several policies and examples from NYC related to traffic crashes and enforcement. The city serves as a useful example of the challenges and possible solutions to address the pandemic of traffic violence in primarily urban and suburban settings. NYC is home to a variety of road users, representing within one jurisdiction the majority of different travel forms used throughout the United States, including driving, walking, bicycling, and public transportation. And in a curious twist of fate, the city that registered the country's first pedestrian fatality in 1899, (14) was also the first U.S. city to adopt the Vision Zero policy in 2014 to address traffic crashes, with a focus on risks to pedestrians and other vulnerable road users. (15) Despite the loss of more than 4500 lives to traffic violence in NYC since 2001, (16) the city has bucked the recent national trend of increasing traffic fatalities since 2014, with drops in traffic fatalities over three consecutive years since 2014, likely due to its Vision Zero-related measures that include re-designing roads, lowering the city-wide speed limit, and operating automated speed enforcement cameras. (17) NYC also has a history of racially disparate policing and criminal prosecution practices (18) and has drastically increased its police enforcement of certain traffic-related violations, (19) offering insight into the challenges and opportunities of enforcement in addressing dangerous driving behavior and the U.S. pandemic of traffic violence.

1. THE U.S. PANDEMIC OF TRAFFIC VIOLENCE

   Since the beginning of the twentieth century, the man-made pandemic of traffic violence has swept across the United States, killing and injuring people of all ages on highways and city streets. Henry H. Bliss is believed to be the first pedestrian killed in vehicular traffic in the United States; he died after being struck by a motorist on Broadway in NYC in 1899. (20) In that year, twenty-six people were killed in traffic nationwide. (21) A decade later, in 1910, that number had increased to nearly 1600, then in 1925 to nearly 21,000, and, in 1972, the highest year on record, to nearly 55,000 people annually. (22) On average, approximately 42,000 people died in traffic crashes nationwide every year between 1950 and 2009, primarily as motor vehicle occupants in vehicle-on-vehicle collisions or as pedestrians or bicyclists struck by motorists. (23) After several years of overall decline, estimates indicate that traffic deaths increased in 2016 to more than 40,000, marking the second consecutive year of annual increases for the first time in at least fifteen years, (24) with an estimated economic cost to society of more than $432 billion. (25) Although the annual U.S. traffic fatality rate (the number of fatalities as part of the overall population) has declined significantly since the 1970s, Americans are still more likely to die in traffic than from firearms, (26) and as recently as 2010, motor vehicle crashes were either the top- or second-leading cause of injury-related death for every age group aged one year and older. (27)

   The context of these deaths tends to differ between dense urban and non-urban environments. On highways and outside cities, most traffic fatalities result from collisions between motorists traveling at high speeds, while within cities, especially in dense urban settings in cities like NYC, the majority of deaths and injuries occur when pedestrians are struck by motor vehicles either traveling at high speeds or when drivers fail to yield to vulnerable road users. (28) In NYC, more than 4500 people have died in traffic crashes since 2001, at least 49,000 have suffered serious injuries (including loss of limbs, traumatic brain injuries, and other life-altering injuries), and more than 618,000 have suffered less serious injuries--all of this in just one U.S. city. (29) Regardless of the setting, U.S. roads and streets pose a high risk of death and injury to all road users. (30)

2. VISION ZERO: A NEW APPROACH TO ADDRESS THE PANDEMIC

   Increasingly, policymakers on all levels of government, grassroots organizations, and crash victims and their families are no longer viewing the U.S. pandemic of traffic deaths and injuries as inevitable "accidents," but instead as preventable crashes constituting a public health crisis. (31) Cities across the United States are adopting Vision Zero--a policy and strategy with the goal of eliminating all traffic fatalities and severe injuries, while increasing safe, healthy, and equitable transportation and mobility modes. (32) First implemented in Sweden in the 1990s, Vision Zero is now being applied in several U.S. cities, including Austin, Chicago, Fort Lauderdale, New York City, Portland (Oregon), San Francisco, Seattle, and Washington, D.C. (33) Each city's Vision Zero plan sets a year by which traffic deaths and serious injuries must be eliminated. (34) In 2016, the U.S. federal government announced its own Vision Zero-inspired "Road to Zero" program, declaring a goal of reaching zero traffic deaths nationwide within thirty years. (35)

   1. What Is Vision Zero?

      Vision Zero differs from past traffic safety efforts that have focused on achieving moderate year-over-year reductions in injuries and fatalities and have applied certain measures--often referred to as the three "E's:" engineering, which includes road infrastructure designs and technical changes; (36) education, typically driver awareness and training; (37) and enforcement, typically police traffic...