Jaywalking and the Dilemma of ‘Victimless’ Crimes

How much authority should governments have to protect people misbehaving in ways that are, in most cases, dangerous only to themselves?

People jaywalking in the middle of a busy street.
(Shutterstock)
As of March 1, if you live in Virginia, you will be able to cross the street anywhere — in the middle of a block, 100 yards from a crosswalk, as clumsily and unpredictably as you wish — without having to worry much about getting in trouble with the law. Jaywalking, while technically still illegal, will be decriminalized throughout the state.

It would seem to be a sensible move. In Virginia, as in most of the country, jaywalking has long been punishable by a fine but very rarely enforced. A penalty that is invoked sporadically and capriciously is not fair to those who get socked with it, as state and federal courts have declared many times.

In the case of jaywalking, however, there is another principle involved. Studies in a number of states have shown that when a pedestrian does get a ticket for crossing in the wrong place, it is disproportionately likely to be a person of color. This is not a small disproportion. A study in 2019 in New York City found that Blacks and Hispanics had been getting 90 percent of the tickets for "illegal or unsafe" crossing, even though they comprised just a bare majority of the city's population. Earlier research in Florida reported that minorities in Jacksonville received three times as many pedestrian tickets as white people did.

That in itself isn't airtight evidence of discrimination. Minorities may, in fact, do more jaywalking. But they may also have a reason. If you walk down any one of thousands of suburban highway strips in America and especially in the South, traversing long corridors in minority neighborhoods, you will find crosswalks few and far between. If you're carrying a load of groceries, maybe holding a child's hand at the same time, and the nearest crosswalk is half a mile away, you shouldn't be blamed too severely if you dart across in the middle of the road.

For decades in this country, California was the national capital of jaywalking enforcement. It wasn't unknown for Californians — or especially visitors ignorant of the law — to get a ticket just for taking a few steps into the street when the traffic light was red. You could end up paying the Golden State $196.

And indeed, California's get-tough approach did seem to have an impact. Given that it is perhaps the nation's most car-obsessed state, its figures for pedestrian injuries were comparatively low. But not any more. The number of pedestrian fatalities on California streets and highways went up by 26 percent between 2014 and 2018, and this was as the state was implementing a "Vision Zero" program aimed at reducing the number of traffic deaths.

What's happened in California has been happening in the rest of the country as well. Between 2007 and 2016, pedestrian traffic deaths shot up 27 percent. They went up three percent from 2017 to 2018 alone. It's true that more pedestrians are hit at crosswalks, often by drivers making left turns, than are hit while jaywalking. But jaywalking collisions are much more likely to kill people.

JAYWALKING MAY NOT BE AMERICA'S MOST SERIOUS PUBLIC PROBLEM, but it brings up a whole series of larger questions. What if the decriminalization of jaywalking leads increased numbers of people to be more nonchalant when they cross dangerous streets? And much more broadly, how much authority should governments have to protect people misbehaving in ways that are, in most cases, dangerous only to themselves?

The first objection can be disposed of fairly easily. Virtually no one thinks the police are going to punish them when they cross a street illegally, so it's extremely unlikely that they will change their behavior when criminal punishment is wiped off the books altogether. But the larger issue remains a compelling one. If a citizen takes an action that is unlikely to harm anyone else, what sort of retribution — if any — is appropriate? The argument that punishment for these actions is wrong has been bouncing around this country's legal system for two centuries. It is probably more fashionable in libertarian circles right now than it has been in the past.

The problem is that many actions said to be "victimless" aren't really victimless at all. Drivers may claim an absolute right not to wear a seat belt, but failure to do so costs American taxpayers billions of dollars every year in medical bills. Marijuana may be a harmless pleasure — or it may not — but the use of opioids and other hard drugs impose massive costs on the entire society. Right at this moment, there is the issue of masks. Millions of angry dissidents claim the right to go maskless when they are out in public, but the evidence is overwhelming that they jeopardize the lives of all those they come into contact with. Mask defiance is a major reason more than 360,000 Americans have died from the coronavirus since the beginning of last year.

If you start combing the statute books for truly victimless crimes, you will find scarcely any, even ones that passionate libertarians insist on defending. There is, of course, one powerful exception: consensual sex among adults. Sexual encounters of various kinds were once punished severely in almost every state, but society has come a long way from that era, and we are all better off for it.

Even on this subject, however, there are complications. AIDS was, until recently, one of them. Sexually free-wheeling bathhouses in American cities were death chambers in the 1980s, spreading a then-incurable disease to thousands of customers, many of whom did not know they were risking their lives. Did public authorities in these cities have a right to close the bathhouses down? That's a troubling question — some did close them down, and some didn't.

LURKING BEHIND ALL OF THIS is the eternal issue of alcohol. No one can claim that drinking is a victimless crime. In the past century, alcohol abuse has claimed many more lives than AIDS and COVID-19 combined. But Prohibition was a massive national failure. The fact is that it actually did reduce the level of drinking in America in the 1920s, and thereby saved significant numbers of lives, but it also gave us an organized-crime problem that remains with us a century later. Drinking is in no way a victimless crime, but a substantial majority of the American people believe they are harming no one by doing it. Against massive opposition and widespread willingness to flout the law, the state simply lacks the power to impose stringent behavioral rules. That's one overriding lesson that Prohibition taught us.

A couple of years ago, the District of Columbia city council changed the rules on a category of offenses that many of its members called "minor" but which were in fact a bit more ethically complicated than jaywalking. The council passed a bill that drastically reduced the penalties for fare-jumping — slipping through gates at Metro stations to avoid paying the fare. The council majority mainly argued that the existing penalties discriminated against minorities, who were being caught and punished in numbers beyond their share of the population. Mayor Muriel Bowser vetoed the bill, pointing out forcefully that no matter who the perpetrators might be, jumping the gates was a genuine crime that deprived the transit system of badly needed revenue and insulted millions of law-abiding fare-payers. But the council overrode her and the bill became law.

The background to this event was a growing revolt among Black activists against the "broken-windows" policing that had taken hold in many American cities over the previous couple of decades, policing that cracked down on allegedly small offenses, including fare-jumping, graffiti-tagging and petty vandalism, that graduated to serious crimes when the offenders saw that they weren't being punished. There is no question that broken-windows policing seriously inflated the number of young African-American men incarcerated all over the country, and it helped to generate militant protest movements such as Black Lives Matter. There is also little question that it contributed to a substantial decline in violent crime rates in virtually all large American cities, and especially New York, where it was practiced most aggressively and where it produced the angriest outrage.

SO WHAT'S THE RIGHT STAND to take on this whole raft of "minor" offenses, few of which are truly victimless but some of which may ultimately generate punishments more dangerous to society than the offenses themselves? I think there's only one good answer: Don't start by thinking of individual rights; start by thinking about consequences.

That sort of approach yields different answers in different circumstances. We have decided as a society that nearly all sexual practices among consenting adults generate no negative consequences anywhere near as bad as the results of punishing them (although we make exceptions for incest and bigamy). We have also decided that failure to drive with seat belts does more than enough harm to justify laws penalizing the practice. We are deeply divided on the consequences of criminalizing a wide range of narcotic drugs, and we are still divided on requiring masks in the midst of a pandemic, although majority opinion is on the side of mandating the masks in public.

So where does that leave jaywalking? It's clearly not a heinous crime, but it does increase the number of pedestrian deaths in the United States by a substantial amount each year. I think that, in the end, we have to treat it like Prohibition. Most of us will continue to do it, there is no practical way of enforcing laws against it consistently, and so the right course is probably to let all of us walk or run across the street wherever and whenever we please. Just look both ways before you do it.

Alan Ehrenhalt is a contributing editor for Governing. He served for 19 years as executive editor of Governing Magazine. He can be reached at ehrenhalt@yahoo.com.
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