Talk to the victims of crashes and their families, and they’ll tell you: when a motor vehicle injures or kills a bicyclist, the American justice system lets drivers off the hook. The harsh truth is that our roads are frighteningly dangerous for cyclists, and our country has a high tolerance for traffic deaths. In this episode, part of Outside’s ongoing coverage of cycling crashes and deaths, we chronicle two incidents that reveal deep problems with our legal system and consider the work that needs to be done to make our roads safer.
Michael Roberts: From Outside Magazine, this is the Outside Podcast.
Court: And before proceeding with sentencing, the court would inquire if the people wish to either add anything at this time, or have the named victim address the court.
Lawyer: Your honor, as I indicated, the victim, Mr. Andrew Bernstein is present. I do believe he wishes to address the court.
Michael: In July of 2019 Andrew Bernstein was riding his bike in his hometown of Boulder, Colorado when he was struck by a van. The driver fled the scene.
Judge: Good afternoon to you.
Andrew Bernstein: Good afternoon.
Michael: It took police over a year to find and arrest the driver. Another year passed before the man was sentenced. What you're listening to is Andrew reading a statement at the sentencing hearing in October of 2021.
Andrew: I'm now a very different person than I was on July 20, 2019 when uh, this dangerous and irresponsible driver hit me with his vehicle and nearly killed me.
Michael: Andrew is lucky to be alive. The van hit him with such force that he was flung in the air and landed in the bottom of a roadside ditch, where he nearly bled to death. Luckily, a passing motorist saw him and dialed 911.
I produced a story for this show about Andrew's crash back in 2020, and Andrew has written articles for Outside about what he has gone through, because, unfortunately, it's not uncommon.
The truth is that it's dangerous to ride a bicycle on American roads. And when bicyclists are hit, or killed, our criminal justice system lets everybody down.
I'm Michael Roberts and today, we have a new installment in Outside's ongoing coverage of cycling crashes and deaths. Producer Paddy O'Connell brings us this piece, which asks what we should do with the drivers who run over cyclists.
Paddy O’Connell: The driver who hit Andrew Bernstein pled guilty to leaving the scene of an accident, careless driving, and criminal attempt to leave the scene of an accident. As part of his plea deal, he accepted a sentence of two years in prison with a chance for parole. Andrew felt strongly that he needed to make a statement at the sentencing, and shortly afterwards he explained why.
Andrew: I went into court that day with the mission of just kind of, um, stating for the record, how much I've lost and how devastating this attack was was for me and to me, and you know, what the physical and emotional toll will be for, for me, for the rest of my life.
Andrew in court: That crash caused massive blood loss damage to my spinal cord and 35 broken bones. Two collapsed lungs, internal bleeding, and a concussion. I spent a month in the level one trauma center of Denver health and where I underwent 10 surgeries to stop the internal bleeding. Refuse my spine and repair my many broken bones. I was in a coma for much of that time, intubated and eventually given a tracheostomy, I still live with the drug-induced hallucinations from that period. It was also determined that the damage to my spinal cord was permanent and would have long-term consequences, my mobility and health. My left and right sides are continually out of balance resulting in severe and chronic pain throughout my body. My bowels bladder and sexual function have also been affected. I'm a healthy 36 year old, but because my penis now has reduced sensation, I require medication to engage in intimate activities. Spinal cord injury patients often experience decreased fertility and mine is not yet known, calling into question whether or not I will now be able to become a natural father. Because my bladder is also paralyzed, I'm only able to urinate by using catheters, which I insert into my urethra several times a day.
Andrew: It was just to state for the court in a very public and direct way. Here's what happened. Here's what my life is now like. And also to address kind of the failings of the justice system to deliver a punishment that actually addresses the crime.
Paddy: Along with the physical impact to his life, Andrew summarized for the court the emotional and financial impact he is forced to carry: everything from the mental gymnastics of managing his medications and pain, to the tens of thousands of dollars he has to spend yearly on his ongoing care, to how this lifelong disability will cause his body to age faster than it should.
For Andrew, in a just world, the driver would bear the full financial responsibility for the harm he caused and would never be allowed to operate a motor vehicle again. But that never happens.
Andrew: In this country, we give such high priority to cars and their drivers. That the right to drive is not something we take away, even in a case like this.
I do feel that the punishment agreed to today is warranted and appropriate, but it is not adequate to help me while also doing little to prevent him from inflicting further harm on others in the future. I can only hope that incarceration helps him to become a better driver.
I'm slightly more hopeful that others hearing about this case will remember their duty to be responsible on the road, and to look out for others. Given that the sentence fails to truly mete out justice for me, I hope that at least it keeps someone else from suffering as I have. Thank you, your honor.
Judge: Thank you for being present and addressing the court.
Paddy: Andrew left the courtroom that day with a mix of emotions. But mostly he felt that, very unfairly, he was the one given a life sentence.
Andrew: I felt like some relief that it was over, that the, you know, the, the criminal proceeding was over, that I didn't have to appear in court again. The relief was short-lived. There's nothing that the criminal justice system did for me that actually improves my situation.
A lot of drivers attack cyclists in this way and get away with it. This driver didn't get away with it. He got a punishment and not, not just a punishment, but actually, uh, a prison sentence, which is unusual.
But my feeling was that the prison sentence doesn't help me. I will always have to go to physical therapy on a, on a very regular basis. I will always need a lot of additional medical care that, um, would not have otherwise been necessary.
The driver going to jail does nothing to fix that. And moreover once his parole is completed, he'll be able to drive again legally. And, he's not a safe driver. As he demonstrated, he's not responsible. He didn't have insurance on his vehicle.
He should not be on the road at all. But he, he will be, almost certainly. And, you know, we just have to hope that he doesn't repeat, the same kind of crime.
And for me, this is not over. And, it's a lot to carry.
Uh, and there's no, there's no end in sight
Paddy: You might expect that Andrew would be advocating for a longer prison sentence for the driver who hit him, and for all drivers who maim or kill cyclists. But he isn't
Andrew: My attacker is not someone who I can easily forgive. I think my life would be better if I could forgive him and move on with that part of it. And I hope that I get there.
But I also don't think that prison actually helps this situation for me or for the driver. I am not somebody who celebrates prison.
Paddy: If you spend time reading up on cycling crashes on American roads, it quickly becomes clear that drivers are rarely held legally responsible for their actions. And if they are, the punishment just does not seem to fit.
Meanwhile, biking collisions and fatalities continue to rise. In 2018, 857 people were killed while riding in the United States, a multi-decade high. Journalist Philip Keifer was on the reporting team that created Outside's 2020 Cycling Deaths project, which analyzed data on the crashes to try to understand what's behind the deadly trend and what we can do to make our roads safer.
Philip Keifer: I mean there are a lot of why's and they're hotly debated. More drivers going faster in bigger cars, more distracted, but also road infrastructure that continually prioritizes driving over walking or biking or taking transit.
When you talk about 857 people dying, that becomes this very fuzzy statistic.
Paddy: What made a much bigger impact on Phlip than the scary numbers, were the conversations he had with the family members of cyclists who'd been killed by cars.
Philip: One of the last things we did as part of the 2020 project was group. Reporters, including myself, interviewed families, had lost loved ones to sort of humanize what that meant.
There was very little closure for a lot of people. They sort of got this sketchy picture maybe of how their loved one had died, but never really knew the full circumstances of it.
One of the things we were looking for was whether the people who had killed them had faced any consequences or any investigation that we could sort out
And over and over again, the answer was no. Either investigations just didn't really happen when somebody died they happened and then, the person who had killed another person was let off with a slap on the wrist.
The quote that lots of people in the cycling advocacy world use is: “if you want to kill someone in the U.S. and get away with it, drive a car”
Paddy: According to Philip, the lack of prosecution in many cases is due to a poor understanding of the events that led to the crashes. Collisions with detailed documentation, from an initial crash investigation to court proceedings, are exceedingly rare. This made it almost impossible for him to find an incident that would allow him to show just how unjust the law can feel to the families of victims.
But then he discovered a series of blog posts written by Danielle Davis, whose sister, Loren, was killed while riding her bike to work in Brooklyn in 2016. Danielle had kept meticulous notes and records.
Philip: I sorted through Police reports, recordings of court sessions, all these emails, just sort of endless public records requests. And the investigation into Loren's death was representative of this national picture that we were seeing.
And I was just kind of blown away by having a window into those weeks and months and sort of the, the fog that a family is dumped into.
This reporting will be with me as long as I live.
Paddy: That story, coming up after the break
Paddy: On April 15, 2016 Loren Davis was biking to the art school in Brooklyn where she worked. She always rode the same route but because of construction she was forced to use another road, though it too was a well-used neighborhood bike route. When Lauren crossed the intersection of Classon and Lexington Avenue, a driver turned left and hit her. She died later that day. She was 34 years old.
Danielle Davis: My mom called me and told me, she told me to sit down. And, tobe honest, I immediately collapsed. And it was hard to stay sitting.
Paddy: This is Loren’s sister, Danielle.
Danielle: I can’t imagine how scary that would've been to be by herself in shock after being hit by a driver and not knowing anybody there.
Your family's not there, your friends aren't there, No one's there to help you. And you're alone. And you're alone in your final moments. It's not how Loren should have died.
My mom she's very much like, Okay, pull it together. And, you have to go to grandma's, that was our home base at the time.
She told me she already talked to my younger sister, Margo, and that she was basically inconsolable and my mom couldn't even talk to her cause she was just crying.
We got the call from the medical examiner's office asking us about organ donation on behalf of lore. And you would never expect your mom to ask you, what organs do we donate of your sisters? You know, like, what? What should we give as a gift to another person? Well, what does Loren want? You know, there's no roadmap that you're told and so you're making these decisions and hoping you're not doing them wrong or misrepresenting them.
Paddy: Danielle was on the opposite side of the country from Lauren when the crash happened.
Were you guys close?
Danielle: uh, yeah. I used to call her every Friday. Every Friday. Um, I would go on a little bike ride in Oceanside, California where I was living at the time.
Danielle: I would call her this one section just to like touch base, check in, and of course I would call her whenever I'd have my life crises and Uh, problems. And she was like my guide, my, my support system.
She was just really cool. And A super badass and didn't take any crap from anyone. Uh, she was my best friend for sure.
Paddy: From the moment Lauren's family learned about her crash, the pain they felt was exacerbated by waves of confusion.
Danielle: We couldn't wrap our heads around anything of what was happening There weren't a lot of answers. And in the beginning I remember there was a lot of conflicting stories.
There was no time to grieve. There’s to-do lists about things that you need to do and who you need to talk to. It's just, you're, you wonder if you're just living in a different world, a different reality.
It was terrible.
Paddy: Danielle and her mother took an overnight flight to New York and went to the crash site.
Danielle: We saw pieces of her basket there that was attached to her bike. We found like a, a little button that she had probably on her person. I believe we found like a scrap of her jacket, her green jacket she was wearing. We also found fingerless mittens, I think one of them. And, maybe her sunglasses.
Paddy: Danielle got in contact with the police officer heading up Loren's crash investigation, Christopher Paul. He invited Lauren and her mother to his office to discuss what he had found.
Danielle: He proceeded to tell us what had happened according to the initial witness accounts that were, that they had taken, at the scene. And then the driver's account, and their own observations. And so he told us that he thought there was no criminality afoot.
He said that he didn't believe that Loren had made contact with the car. But then he proceeded to say that, that the car bumped Loren, which was the antithesis of the previous statement.
Paddy: Did you feel like something was off in the investigation?
Danielle: There was so much that appeared to be wrong in the initial narratives that were coming out, in the initial fictions, I would call them, that were being portrayed about Loren.
The police officer had told us at that same meeting that Loren was going against traffic, so like salmoning, I believe it's called, when you're going against the flow of traffic.
Danielle: And we were like, there's no way, like there's no way. Like, Loren's work was in Manhattan and the only way to go to Manhattan is going the right way with traffic.
Danielle: And she did it every day. It just seemed completely improbable and, um, it was, it was wrong, wrong, and I had to do something, whatever I could.
And, it was a way to ensure that Loren had a voice and that she wouldn’t be rendered completely invisible. And that was really important to me.
Paddy: Danielle and her mother went back to the crash site to set up a memorial and talk to anyone and everyone who may have witnessed the crash. In the coming days and months, the family started an investigation of their own: they tracked down witnesses and talked with businesses at the intersection, emailed and called police officers, and talked with city council members. Danielle documented everything.
The Davis family would soon learn that police did have it wrong. Additional eye witnesses and video footage from local businesses confirmed that Loren was biking with traffic. Though Officer Paul had obtained this footage just 18 hours after the crash, the official report was not amended for another two months. Throughout this, Danielle says her family felt in the dark.
Danielle: When you die in a crash, it’s as though the power is then given to the police officer who's investigating the crime.
And so it all is dependent on who the police officer, who is deciding which information is true and which information is false. And it's just story after story in the very beginning that…It,it feels like you're wounded over and over again. because Loren is continually being rendered invisible. And that in and of itself definitely makes you feel like you have a lot of helplessness.
Paddy: The driver of the car stayed at the scene when the crash occurred and cooperated with police throughout the investigation. She had turned left onto Lexington Avenue and into Lauren's path. She told police that she “did not see anything, then heard a boom from the front passenger side of her vehicle.” After hitting Lauren, she continued for a block, then put the car in reverse and backed up to the intersection.
She did not face any criminal charges. The only infraction she was cited with was failure to exercise due care, which is handled in traffic court.
There were two traffic court hearings: a five-minute one, in which the driver could fight the ticket itself, and another, called a fatality hearing, in which the judge would decide whether the crash warranted suspending her license.
More than a year after Loren’s crash, Danielle and her family arrived at the fatality hearing, which was held in what she describes as “a ramshackle version of a courtroom" of folding chairs and tables. And the judge had only been provided with the incorrect initial report.
Danielle: She started reciting the same erroneous report that had been written at the very beginning, the first day of Loren's crash portraying lore as, someone who is guilty and culpable of causing her own death by riding against traffic.
And portraying the driver as someone who just happened to be there.
Even though the judge said we weren't allowed to say anything, mom didn't follow that rule. She interjected and said, “Excuse me, that's wrong. That's wrong.”
And the judge became irate almost, and told us, “You can't talk. You're not allowed to talk. You can't say anything. You need to be quiet.”
We all kind of gasped when it just continued to be, all the information continued to come in as being false. It was all the things that did not reflect the amended report that were told P.O. Paul had made, and that he would give it to the judge and be on top of it. He wasn't. He was not there. He was the only voice for Loren. He was the only one that could talk on her behalf in front of the judge, and his word would be taken as the truth on behalf of Loren. Her voice, again, was not there. Her voice was left out completely.
Paddy: Over the course of the half-hour hearing, the judge softened. She allowed a representative for the family to read the amended police report into the record, over the objections of the driver’s lawyer. The judge rescheduled the hearing for two months later, after she could obtain the amended report. And Officer Paul was at that hearing.
The judge adjourned and issued her decision a few months later.
Danielle: We received a letter in and the driver had 90 days without a license with the chance to appeal after 30, of course, and I believe a hundred dollars fine.
My mom was devastated and angry, and I just felt like it was another thing, another wrong. And when you're constantly exposed to perpetual disappointment by the systems that are supposed to serve and protect you or express and find truth, and they're not doing you that service, I felt a loss of trust in those systems. And I was immensely disappointed on behalf of my sister Loren, because she deserved more.
The punishment should reflect the egregious crime of killing someone.
The driver will have to live this for the rest of her life that she has killed someone. And I do think that's a form of punishment.
I do understand that people make mistakes, and streets are designed in a way that may not be conducive to, protecting the most vulnerable lives. But if that's the case, then the systems need to reflect punishments to where people will not drive recklessly and drive like the most vulnerable populations, pedestrians and cyclists are actually vulnerable people.
Paddy: At that fatality hearing, what do you believe should have happened.
Danielle: I don't know.
Paddy: Danielle says that she and her family still struggle with compassion and understanding for the driver and what a proper punishment would or should be. And according to Philip Keifer, the Outside reporter following this story, what continues to be troubling is that the Davis family experience is a rare case where a family actually got the full details of what happened, but only because they committed enormous energy towards finding the truth.
Philip: Danielle and Davis family's experience, after Loren’s death is that they found themselves having to be sort of full-time advocates to push the levers of justice forward.
But without that kind of ability to devote a period of your life to watching the justice system as Danielle was able to, I'm not sure how much a family would ever really get to know about, the way that people in power look into how their loved one died.
Paddy: Do you know what a more just system could look like, following your reporting?
Philip: Yes and no.
I don't believe you should let drivers off the hook for reckless actions they take that hurt other people.
But I also think that you should stay clear-eyed about the fact that our roads are dangerous because the people who build them don't prioritize our safety.
I talked to someone with the Dutch cycling embassy. One of the things he told me is that the Dutch build engineering into their crash investigation process. So what I was told is that if somebody is hurt or killed, the Dutch dispatch police to investigate. But they also send people to look at the street and say, “Hey, what can we as a city have done differently to prevent this from having happened in the first place?”
And that I think is really powerful.
Paddy: After her sister's death, Danielle pushed officials to install painted bike lanes, which provide more visibility and legal protection for bikers, on Classon Avenue where Loren was killed. She told me that this was her way of making Loren present again on the street that had erased her.
Danielle: It just felt like, um, a way to protect other people because Loren didn't have a legal space to be able to ride and be protected. It was difficult to do. It definitely required me to step outside of my shell for sure. But I did it. For Lauren.
Philip: I came away from this story with that feeling: I need to be more involved as a neighbor and as a citizen and as a resident, and not just as a reporter.
Danielle is the role model. And, I need to be as proactive, if things are going to change.
Michael: You can read Philip Keifer's story about Lauren Davis's death and what justice should look like for victims of traffic violence on Outside Online. Also on our site are several pieces by Andrew Bernstein, about what he's gone through since being struck by a car.
This episode was produced by Paddy O'Connell and edited by me, Michael Roberts. Thanks to Outside articles editor Fred Dreier, who recorded Andrew Bernstein's statement to the court in 2021 and interviewed him about it shortly afterwards. Music for this episode by Robbie Carver.
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