The Perfect Crime

Hey podcast listeners. As you may have heard, our new book, Think Like a Freak, is out on May 12. On May 4, the CBS show Sunday Morning is scheduled to run a segment on us and the book. I can’t tell you exactly what’s in it but you’ll probably hear some of this [RADIO SFX] … some of this [BABY/SWORD] … and, yep, some of this [GOLF BALL BEING CRUSHED]. That’s Sunday, May 4, CBS Sunday Morning. And now for today’s program, “The Perfect Crime.”

Let me warn you: What you’re about to hear is a sick idea. Let’s say I want to kill someone.

But I also don’t want to go to prison. In fact, I don’t want to be punished at all. So what do I do? Well, there’s this one idea I have. And because I live in New York City, it probably wouldn’t be very hard to pull off. I ran this idea past a few experts. First, I asked a fellow named Robert Noland:

Robert NOLAND: Oh, if you wanted to kill someone! Yes. Yeah, it probably would be a pretty good way to do it, I suppose, without getting caught.

Then I asked Lisa Smith.

Lisa SMITH: Theoretically, I agree with you that it could be pulled off as the perfect crime in very particular circumstances.

And finally, I went to Charlie Zegeer. I asked Charlie what I should do next …

Charlie ZEGEER: Seek counseling!

ANNOUNCER: From WNYC, this is Freakonomics Radio, the podcast that explores the hidden side of everything. Here’s your host, Stephen Dubner.

OK, let me be clear. I don’t actually want to kill anyone. And I don’t endorse the idea of wanting to kill anyone. But if I did, and I were looking for a way to do it and get away with it, how would I do it? I’d wait ‘til they were outside, walking down the street, maybe crossing at the light … and then I’d run them over in my car. Now, I’d have to make sure that no one knew I was trying to run them over. But they’d be dead and I, especially in New York City, would in all likelihood go scot-free.

SMITH: There’s the case that happened with the little boy on the Upper West Side, Cooper Stock. He and his dad were crossing the street. And a driver was making a turn, and he just ran over the little boy, didn’t see him.

Lisa Smith is a former prosecutor in the Brooklyn D.A.’s office; now she’s an assistant professor of clinical law at Brooklyn Law School.

SMITH: So right now all that is is a summons to the driver for failing to yield. But it does not rise to the level of any kind of manslaughter or homicide charge. There was a study that showed that between 2008 and 2012 there were something like almost 1,300 fatal crashes in New York, and there were like 66 drivers arrested.

Now, you might think that a place like New York, with so many pedestrians, would have particularly tough laws against running them over. But you’d be wrong. As Lisa Smith told us, only about 5 percent of the drivers who kill a pedestrian in New York are arrested.

 SMITH: Our neighbors have different vehicular laws than we do. Both Massachusetts and Connecticut have vehicular manslaughter statutes that punish traffic fatalities or serious injury that occurs because of simple negligence. New Jersey doesn’t have the same statute as Massachusetts or Connecticut, but even they have vehicular manslaughter statutes that encompass more behavior than what New York has, which is absolutely nothing other than drunk driving. So around the country — in Iowa, Louisiana, Georgia, Nevada, Kansas, California — all over the country, there are states with vehicular statutes that punish a failure to yield as a traffic fatality, that punish the driver.

Smith says that New York has some of the narrowest standards for conviction in the country. It’s called the “rule of two” — you need two significant violations of traffic laws in order to bring a charge, including some incredibly reckless or criminally negligent act. Otherwise, it’s just … an accident.

SMITH: I don’t think the current punishment fits the crime.

Here’s one scenario Smith suggests. Imagine that instead of driving down the street in New York, you decide to go outside with your gun.

SMITH: Let’s say you go to a crowded street and you start to shoot in the air …

OK …

SMITH: … but you don’t really intend to kill anybody, right, you’re just fooling around.

All right. And what does the justice system do if this bullet you fired into the air happens to come down and hurt or kill someone?

SMITH: We are much more aggressive, and we have much more case law to support us than we do in vehicular accident cases. More often than not the behavior is reckless enough to charge them with some type of felony.

Now is the reckless use of a gun really that much worse than the reckless use of a car? The way Lisa Smith sees it, an accidental shooting is really …

SMITH: …really not something that most of us are imagining we would be participating in. And so we don’t have a problem with severe criminalization of that behavior. Everybody who drives has had the experience where…they were driving perfectly carefully but something went a little wrong and you know they could have had a serious accident. The fear of over-criminalizing vehicular accidents really resonates with every single person.

DUBNER: Every single person who’s a driver, at least.

SMITH: If you’re a driver, you see everything from the driver’s perspective, and I think drivers hear this and they just see this as adding penalties for innocent accidents and they won’t support that at all.

Now, if you believe even a little bit in the power of incentives, you might wonder: How does the lack of punishment for killing pedestrians in a place like New York translate into pedestrian fatalities? It’s hard to answer that question directly. For starters, pedestrians are more common, and concentrated, in a city like New York than they are in the rest of the country. But consider this: In the U.S., pedestrian deaths make up about 14 percent of total traffic fatalities. In New York City, it’s 52 percent of traffic fatalities. That’s roughly 150 dead pedestrians a year in New York. Considering how many people live here, that’s actually a very lower number, compared to other places in the U.S. — but still, 52 percent of all traffic fatalities in New York are pedestrians. And in the vast majority of cases, the driver isn’t arrested or charged with anything substantial. So you may be thinking, “Well, wait a minute, maybe that’s exactly as it should be – if, that is, the drivers really aren’t to blame. Maybe it’s all the pedestrians’ fault. Maybe they’re the ones who are breaking the traffic laws, or walking drunk, or walking while texting or listening to music. What share of pedestrians who are killed are clearly at fault?”

ZEGEER: We don’t really know the exact percentage.

That’s Charlie Zegeer. He’s associate director of the Highway Research Center at the University of North Carolina.

ZEGEER: And the reason we don’t know is because the information we have to make that determination is essentially on police crash reports. And so often time the only witness is the surviving driver. And so the police officer only hears that one side of the story.

So that’s an important caveat. So, keeping that in mind, let’s look at the numbers we do have about pedestrian fatalities not just in New York City but throughout the U.S. According to NHTSA, the National Highway Traffic Safety Administration, only about 25 percent of the time is a driver’s “failure to yield” the official cause of a pedestrian fatality. In another 27 percent, the cause is unknown or unreported. OK, so what about the pedestrians? Seventeen percent of the fatalities are the result of a pedestrian being “in [the] roadway improperly (standing, lying, working, playing).” Another 16 percent occur when the pedestrian is “not visible.” Nearly 15 percent come from the pedestrian “darting or running into [the] road” and another 13 percent come from “improper crossing of roadway or intersection.” Now, again, keep in mind that this is according to data that usually comes from police reports – which, as Charlie Zegeer warned us, is bound to overweight the perspective of the driver who lived as opposed to the pedestrian who died. That said, here’s one other number that might get your attention: Of the pedestrians killed in fatal crashes in the United States, 37 percent had been drinking, with a blood alcohol concentration of .08 or higher. If you look at pedestrian fatalities among 25- to 34-year-olds, the drunk-walking number rises to 50 percent. Upon hearing these numbers, you may think, “Hey, in many cases, it’s totally the pedestrian’s fault for getting hit by a car!” And just think of all the guilt and heartache the drivers have to carry around, having killed a pedestrian. But you may also think, “Wait a minute: even if pedestrians are doing something totally reckless, is the appropriate punishment really death? Who are the roads for, anyway?” Coming up on Freakonomics Radio, we’ll try to answer that question. We’ll start at the beginning:

ZEGEER: Okay, let me take you back, can I take you back as far as the late 1920s?

Plus: what makes someone more likely to survive getting hit by a car?

Spiros FRANGOS: Say you have two individuals — one is 400 pounds and one is 140 pounds and they are punched in the ribs with same force? Whose ribs are more likely to break?

ANNOUNCER: From WNYC: This is Freakonomics Radio. Here’s your host, Stephen Dubner.

Charlie Zegeer, you’ll remember, is with the Highway Research Center at the University of North Carolina.

ZEGEER: OK, let me take you back, can I take you back as far as the late 1920s?

DUBNER: Love it.

ZEGEER: OK, so if we go back as far as the late 1920s, we actually see that the greatest number of pedestrians or the largest number of pedestrians were killed in around the 1930, ’32 timeframe — with almost 16,000 pedestrians killed per year.

DUBNER: Sixteen thousand killed! Sixteen thousand pedestrians killed per year in the ‘30s?!

ZEGEER: Yes, yes, that’s kind of the maximum.

DUBNER: You’re kidding, seriously?

ZEGEER: Yes.

DUBNER: You could have won a bar bet from me on that so much, because I know the current number is about 4,000, right?

ZEGEER: That’s correct.

DUBNER: Wow, now first of all let’s just distinguish, you’re talking absolute numbers. So when you say 16,000 pedestrians were killed in auto crashes a year, the rate would have even been much, much higher, because we’re talking about a population that was about a third of what we have now, right?

ZEGEER: That’s correct. If we can also look at the percentage of traffic deaths that involved a pedestrian being killed, that’s another sort of kind of measure that is insightful. And so if we look at that measure, if we go back to the late 1920s again, almost 40 percent, 40 percent of all traffic-related deaths in this country involved a pedestrian being killed. So that was pretty much at that level until about the mid-1940s when it actually got a little bit above 40 percent. And then a downward trend over the next few decades, until now, we’re looking at about 13 to 14 percent of all traffic-related deaths on our highways in this country involved a pedestrian being killed.

DUBNER: So as much as overall traffic fatalities have fallen over the decades, the share of pedestrian deaths has fallen much, much, more.

ZEGEER: That’s correct.

OK, so that is a massive improvement, to be sure. How did this happen? How did pedestrian deaths fall so much?

NOLAND: The policy that we followed on trying to save pedestrians is to stick them in cars, so they are no longer pedestrians. And that will reduce your pedestrian fatalities ‘cause you don’t have as many anymore.

Robert Noland is director of the Voorhees Transportation Center at Rutgers. He says that as the automobile rose to exalted status in America, the roads – and the entire landscape really – were built to privilege them, the cars. This is most pronounced in the parts of the country with high pedestrian and bicyclist deaths, like the Southeast.

NOLAND: They focus very much on traffic flow and making the roads wider, straighter, and faster. With the assumption that that’s safer. And what a lot of the guidelines do is they look at freeways, which are very safe, and they’re safe because it’s controlled access. You don’t have any intersections. And they take those sorts of design guidelines and they apply it to a city, to city streets or suburban streets and create these very large arterial roads, which tend to be the most dangerous roads whether for drivers or for pedestrians.

So who are the roads actually made for?

Peter NORTON: I wish people asked that, and I think they don’t ask it because I think we think we know what it’s for, and it’s so obvious what it’s for. It’s for cars of course.

That’s Peter Norton.

NORTON: I’m the author of Fighting Traffic: The Dawn of the Motor Age in the American City.

To Norton, there is no mystery here.

NORTON: A street’s for cars. It’s automatic. If I say, “What’s a street for?” Somebody is going to say,
“Car” right away. It’s like free-association in psychology. It’s just automatic. And I think that’s really interesting because if you’d asked that same question to a random person a hundred years ago I think they would have had more different answers, like a variety of different answers. And none of them would have said that a street is for cars, even though there were a lot of cars then.

We should point out that not everyone, everywhere, thinks the streets are only for cars.

ZEGEER: I will say that not everything being done in Europe is really good from a safety standpoint, but they do have many strategies and activities that we could learn from, from the U.S.

That’s Charlie Zegeer again. While the pedestrian death rate in the U.S. is much better than in many Asian and African countries, we are far behind many European countries.

ZEGEER: We visited countries like Switzerland, Sweden, Germany, England, and one of the overriding things that we learned, and this was one of our overall recommendations is that what is being done for pedestrian and bike safety in some of these countries is not just a random series of actions. Instead, it’s actually a deliberate combination of their policies, their approaches and their influences from several standpoints, and that these combinations of policies and funding allocations and engineering and enforcement issues are really what kind of sets them apart from other countries, in particular, the U.S., in some ways. Secondly, we also found that they have a different hierarchy of how they provide streets. They actually put equal or even greater priority on pedestrian and bike safety and public transit than they do on automobile transportation. Thirdly, they’re not bashful about developing and implementing innovative strategies at traffic signals to help pedestrians safely get across.

DUBNER: You know, I have to say this whole topic kind of baffles me because if you think about costs and benefits of anything, which we do all the time, even when we think we don’t do it. You know, when we like something we understand that the upside is great for us than the downside, and everybody has his own personal preferences and so on. I guess the thing that astonishes me is that even though you’ve told us how much traffic fatalities and particularly pedestrian fatalities have fallen so much over really the last century or so, if you were to tell me that 4,000 people in the U.S. were going to die when their TVs fall of the wall and kill them, or 4,000 people die from, you know, archery and getting shot in the head with arrows, there would be outrage nonstop, right? The TV bracket manufacturers would be sued by everybody, the archery manufacturers would be sued by everybody, and yet here we have 4,000 a year, and we kind of celebrate how much better we’ve gotten. And yet, I guess I just don’t quite get why that cost is accepted so easily. Is it just because we’re used to it? Is it because it’s better than it used to be? Is it because the mobility of the automobile is so fantastic that we’re willing to incorporate those costs? Do you have any thoughts on that?

ZEGEER: Well, you raise a really good question, and I’ll first say that we do not celebrate the numbers, even 4,000, certainly that’s less than 16,000 but you know, even one pedestrian death is one too many. But you are correct that society has pretty much accepted or ignored such a tragic toll if we had 4,000 people die every year in airplane crashes, certainly there would be something done. But yet if a pedestrian dies from being stuck by a motor vehicle it may not even make the front page of the local newspaper.

As much as pedestrian deaths have fallen in the U.S. over the long term, in recent years the trend is moving in the wrong direction. In 2002, pedestrians made up 11 percent of U.S. traffic fatalities. Ten years later, the share of pedestrian death was 14 percent. Why the increase? One clue may lie in this fact: Seventy-three percent of U.S. pedestrian deaths occur in cities– and the U.S., like the rest of the world, is getting increasingly urbanized. Here’s Ed Glaeser, he’s an economist at Harvard who studies cities:

Ed GLAESER: Pretty much every city in the U.S. already has infrastructure that’s dedicated toward cars and infrastructure that dedicated towards pedestrians. It’s just a question of you know keeping them off the same infrastructure at the same point in time.

Keeping them off the same infrastructure at the same point in time…. Hmm… so maybe one good solution is just to keep pedestrians away from cars entirely? Minneapolis has had a pedestrian bridge system for years, in part because it’s so damn cold there in the winter there. It’s 11 miles of foot-traffic only. So perhaps it won’t surprise you to learn that Minneapolis is considered one of the safest American cities for pedestrians. Here in New York City – where, remember, 52 percent of traffic deaths are pedestrians — there’s a relatively new park, called the High Line, it’s built on an old elevated rail bed, and accessible only to pedestrians.

Stephen WALL: Honestly, I think it’s an amazing idea – to come up with creative ways to just separate these entities.

Stephen Wall is an emergency-medicine doctor at Bellevue Hospital, a Level 1 trauma center in Manhattan:

[Beeper Sound]

Gretta COHN: Uh oh.

Spiros FRANGOS: See that sounds like trauma, and I can even tell you what that is —  well, pedestrian struck.

Spiros Frangos is a trauma surgeon at the same hospital. We sent producer Gretta Cohn to visit with Frangos and Wall.

COHN: Could you read what the beeper says?

WALL: As long as there’s no uh PHI.

FRANGOS: Level 1 female pedestrian struck. Loss of consciousness, high speed. If I was covering the trauma service I would quickly pick up and head over to the emergency department.

COHN: And what would be the first thing that you would do?

FRANGOS: Well, generally the patient arrives and we quickly go through what we call the ABCs, assessing the airway, assessing breathing, assessing circulation, and put in some IVs. Resuscitate the patient, and then we try to delineate what the potential injuries are, and what the imaging workup and immediate therapies should be, including operative.

FRANGOS: Twenty-five percent of all the trauma patients that come to Bellevue Hospital are pedestrians struck by motor vehicles, and probably about another 10 percent are bicyclists struck by motor vehicles.

COHN: Twenty-five percent I mean, that is a lot!

FRANGOS: Of all of our trauma admissions, that’s correct.

Frangos and Wall have done some research on pedestrian and bicyclist safety in New York.

FRANGOS: For pedestrians, we looked at whether or not they were in the crosswalk when they were crossing, we asked them whether they were crossing with the green light or against, were they crossing mid block, um, were they on the sidewalk when they were struck. What were they doing? Were there any distracting behaviors at the time, such as: Were they on their cell phone, did they have an iPod on? For cyclists we asked them whether they were wearing their helmet, whether they were in a bike lane, whether they were going the right direction in the bike lane. And we took all that information which totaled almost 1,500 patients, and put it in a database, and then started analyzing our data, and we were lucky enough to come up with some interesting results.

So what’d they learn? Seven percent of the pedestrians who got hit were using an electronic device — at least that’s how many said they were using an electronic device. These data, we should note, were self-reported. Seventy-seven percent of the people who got hit were crossing the street at the time; 67 percent reported that they were crossing with the signal, and got hit by a turning vehicle. Alcohol, not surprisingly, played a factor.

FRANGOS: We found that 15 percent of injured pedestrians had alcohol in their system. And about 11 percent of injured bicyclists had alcohol in their system.

A pedestrian who’d been drinking was more than twice as likely to cross a street in the middle of the block. The data also turned up something the researchers hadn’t considered.

FRANGOS: There haven’t been a lot of studies in the trauma literature to suggest that obese people are less injured than normal sized individuals. Ours is one of the first studies to suggest that. It makes – there is some plausibility to the argument. Say you have two individuals, one is 400 pounds and one is 140 pounds, and they are punched in the ribs with same force. Whose ribs are more likely to break? Right? Likely the under-weight or normal-weight person. So there is there is some plausibility to the argument that that layer that cushion layer of soft tissue, fat, is protective. That said what we do know is that when those patients, the overweight and obese, are admitted to the hospital that they are more likely to have a worse outcome. Because of associated comorbidities.

Frangos and Wall aren’t suggesting that we all go out and gain a few hundred pounds to protect ourselves from cars. Especially when there’s a much simpler solution. Here’s Stephen Wall.

WALL: From our data, I think all pedestrians should be wearing helmets. But who would really want to wear a bike helmet when they’re walking, when they’re going out for a date, and that’s also the reason why they don’t wear them when they’re riding their bicycle. But there’s some truth to it. I think I’m going to get in trouble for that.

[Beeper Sound]

WALL: You might be getting a trauma right now, let’s see if it’s a pedestrian struck.

FRANGOS: No, it’s a stab wound to the head.

No matter how accidental that stabbing may have been, we’re guessing it led to something more than a mere traffic ticket for failure to yield.