Episode 175: Rethinking Criminal Consequences for Drivers Who Kill

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Ian Loader:  I mean, there’s a case I describe in the study where a motorist had killed a cyclist somewhere in England while being distracted on their phone for wiping away notifications. And they were convicted, but I was struck by the judge describing the case as “very sad.” Now in all kinds of ways it was very sad, but it struck me that that’s not the kind of judicial utterance that you ever get in equivalent forms of violence which involve guns or knives, or people who kind of fit rather more neatly into our stereotypes of what criminals are supposed to look and feel like.

Doug: This is The War on Cars. I’m Doug Gordon. My co-host Sarah Goodyear is off this week. If you listen to this podcast, you probably have very strong feelings about what the law should or shouldn’t do when a driver kills or injures someone else on the road. You probably have seen headlines like, “Car Injures Pedestrian,” and gotten upset by the passive voice or the lack of any mention of a driver. Such phrasing, it seems, makes it harder to hold individuals to account when they harm another person. But by focusing on individual responsibility and the punishment of drivers who are reckless or make a mistake behind the wheel, is the law perpetuating a system of harm that obscures the larger problems with our car-centric society? Is the way we’re doing things just another form of motonormativity—a concept we’ve talked about on the show before and we are going to redefine later? And do we need to rethink the way we respond to drivers who kill and injure other road users?

Doug: We will get to all of that in a moment. But first, we are on Patreon at Patreon.com/thewaroncarspod. If you like what we do, please sign up. We depend on listener support, and you can join us for just $3 per month.

Doug: Okay, I want to get right to this, because we have an incredible guest for this one who is the author of a really fascinating study. My guest is Ian Loader, a professor at the University of Oxford in the UK, where he teaches and researches criminology. He is an honorary professorial fellow in the School of Social and Political Sciences at the University of Melbourne, and a fellow of the British Academy and the Royal Society for the Arts. He’s also the chair of Cyclox, which campaigns for safe and inclusive cycling in Oxford. As I mentioned, he’s the author of a fascinating study. It’s called “Beyond Motonormative Punishment: On Road Safety as Environmental Regulation,” which was published this year in the British Journal of Criminology. Professor Ian Loader, welcome to The War on Cars.

Ian Loader: Pleasure to be here.

Doug: Let’s start right with motonormativity. So we are having you on at the suggestion of Professor Ian Walker, who we had on episode 99 to talk about the concept that he coined “motonormativity.” I wonder if you could help us redefine motonormativity and how that factors into your research as a criminologist.

Ian Loader: As Ian Walker defines it, motonormativity is the kind of unconscious belief that getting around by car or motorized transport is either how we do or how we should get around. So it’s either just a kind of stubborn fact about our world that can’t really be changed and we just need to kind of suck it up, if you like, accept it, or it’s made as a kind of normative claim, really, that driving is associated with freedom and status and all sorts of values that we like and we should design our cities accordingly. And the point that Ian Walker makes—and he does lots of fancy studies that have also been replicated by Tara Goddard, is that that unconscious bias has all sorts of effects, one of which is it leads people to be much more tolerant of risk and danger in a driving context than they would of equivalent risks in other settings or other spheres of their lives. So one of the questions he asked people is about what they think about smoking at the school gate as opposed to a tailpipe exhaust at the school gate, and they tend to be much more tolerant of the second rather than the first.

Doug: In the context of criminology, you write in the introduction to your study that you are offering a critique of what you call “motonormative punishment,” which you define as “a mix of legal sanctions and a culture of blame that focuses on the behavior of a minority of careless or dangerous drivers while accommodating the structural violence generated by regimes of automobility,” a phrase that I really enjoy here. Can you expand on that idea? What is motonormative punishment?

Ian Loader: I think for me, motonormative punishment is two things. One is there has long been a suspicion in people who work on kind of motoring law that juries and judges and sentences approach forms of injury and harm and violence committed by people in a car rather more lightly and leniently than they would equivalent forms of harm and violence committed by other kinds of people or other kinds of objects—knives and guns, for example.

Ian Loader: And I think there’s a couple of reasons for that. One is that the justice system is kind of set up on the assumption—and I think this is how many people think about it—that it’s meant to be protecting the majority of law-abiding citizens from a small minority who are kind of intent on doing bad things to us and need to of investigated and punished. And motoring is not like that because motoring is a kind of form of mass harm that most of us have engaged in or can engage in on a more or less serious basis at various points in our life. So the suspicion of the motonormative assumption is that confronted with a driver who has driven carelessly or been distracted by looking at their mobile phone or by changing the music on their music system and caused injury and death, that there’s just a little bit of the juror or the sentencer or the judge who thinks, “That could be me, or that could be a member of my family, or that could be someone I know, someone I love,” and find it hard to see the criminality. And therefore, in all kinds of ways, treat the matter, even though the harm can be in some—many cases, you know, involve fatalities—treat the harm in some sense not as seriously as they would equivalent forms of violence committed by other means. So that’s the first thing.

Ian Loader: The second thing is I think the kind of work that law does in this realm is to kind of focus attention on the responsibility of the individual driver. The cultural and motonormative starting point it makes is that driving is essentially safe. It’s a system of mobility which is, for the most part, pretty harmless, and it only becomes dangerous at the margins when people drive excessively fast or are drunk or inebriated or driving recklessly or carelessly and so on and so forth. And the job of the law is to identify those people and punish them. And I think what that starting assumption does is effectively reproduce what I think is a social illusion, and the social illusion is that driving is safe rather than being a regime of mobility, which in all kinds of ways is harm-producing.

Doug: And in fact, you cite a number of people that we cite in our book and that we’ve had on the show, such as Paul Donald, the author of Traffication, who argues that often when we’re talking about the law and driving, we’re not talking about the harm to nature, for example. We’re not talking about the harm to animals, we’re not talking about the harm to the environment in general, our lungs and things like that. So you’re arguing essentially that the entire system of driving, a car-centric system, is on its face harmful. And we have to start there.

Ian Loader: I think we need to start there. And there’s two things to say about that. I mean, what I do in the paper is to kind of say it matters a lot how we define the term “road safety,” and what we call the various forms of injury that fall under that heading, whether we call them accidents or harm or violence, and so on and so forth. And some of that has to do with the things that road safety generally conjures up in people’s minds. It’s human beings being injured and killed by collisions on the road. And the figures on that are, I think, fairly alarming. There’s a whole history and geography to this story that you and your listeners know well.

Doug: In fact, you cite Peter Norton and other people to talk about sort of how we got here, how we came to see the harm caused by automobiles and an automobile-centric system as just background noise. And that only on the margins, on the most extreme examples, as you mentioned, do we really talk about the harm of this system.

Ian Loader: That’s true. And I think a long time ago, at some level, our societies kind of came to assume that injury and death on the road, even though we might worry about it and want at the margins to do things to control it, was a price worth paying for the freedom and convenience of getting around routinely by car. And the consequence of that, as we know, is that 1.2 million people on this planet get killed in a road collision every year. In America, as you’ll know well, rates of injury and death on the road have been going up in the last 10 years and now stand at a 40-year high.

Ian Loader: So that’s one significant part of the problem, but I only think it’s one part of the problem generated by automobility systems or regimes. Another you’ve just mentioned, which we haven’t attended—though interestingly, this was a worry about the arrival of the car back in the 1920s—we haven’t attended very closely to forms of injury and death to non-human animals committed by road collisions, and to the effect of the prevalence of traffic, of the building of road networks on species and biodiversity loss. And there’s a small body of people who count all this stuff, and good on them, but for the most part, that doesn’t feature in the kind of common discussion about this.

Ian Loader: But then we need to factor in consequences that automobility has for the quality of our air and our soundscape, both in terms of something that has become quite well known, which is the contribution of transportation to carbon emissions, but also to the quality of the air that we breathe. And most of that isn’t tailpipe emissions. Part of that is abrasion from brake pads and tires. And it has a significant health impact on people who inhale such particles into their lungs.

Ian Loader: And I think the final thing just to briefly mention there is, at various points on the show, you’ve had discussions about the ways in which we have redesigned our cities to make them kind of safe for the car, if you want to put it like that.

Doug: Mm-hmm.

Ian Loader: With the consequences that the possibilities for things like children’s play space, for the possibilities of social interactions that come from communal life, all that has been sacrificed to make it easier and freer to get around by car. So my starting point in doing this work, and the thing I’m trying to understand and describe and respond to, is that we’ve created a system of mobility which is systemically harmful in all kinds of ways, including to people who drive. And the thing to understand about that is the ways in which that’s become in all kinds of quarters an extremely controversial and jarring thing to say, that if you talk to people most of the time, they are quite challenged by the idea that the object they use to get around on a daily basis may be the cause of kind of systemic harm. One reason for that is that the harm is aggregate, often. It’s a contribution of everyone making a kind of small journey on a daily basis. And just because—and this takes us back to the kind of motonormativity thing—it’s just been folded into our sense of what normal life is supposed to look and feel like.

Doug: Well, and if you do question that system, then what? You know, I can question that system because I live in New York City, and I have dozens of options for living my life without a car. I can walk, I can cycle, I can rent a car when I need one. I can take the bus, I can take the subway, I can have things delivered easily to my home. But I think for most Americans and most people in any car-dominant society, this is a thing we’ve spoken about many times on this show, is that if you were to question it, what could you do as an individual with that information? Which sort of gets to one of the points of your study, which is that we sort of do need to take this away from the realm of individual choices and actions and think more in terms of societal harms, which I want to get to.

Doug: So let’s drill down on some of the terms we use to describe accidents, crashes, road violence, traffic violence. There has been a huge and successful movement to stop using the phrase “accidents.” You cite Jessie Singer and her book, There Are No Accidents, which is a great book, and we’ve had her on the show. And to move towards “crashes.” The AP here in the US and around the world, when they talk about these things, they say “crash,” not “accident.” Advocates often talk about “road violence” or “traffic violence,” because when someone is killed, it is a violent rendering of that person from the world, from their life, from their family, from everyone that they care about. Let’s talk about some of those phrases. You have your own issues with “traffic violence” or “road violence” as phrases, but admit that they sort of will do, at least for now.

Ian Loader: That’s where I land. I mean, you’re right in saying there’s been two related kind of issues raised by campaigners and activists around this. One you just described, which is that I think we are moving away from the idea that these are accidents. Certainly in this country, in the UK, police forces and journalists have now become much better at least using a more neutral-sounding term like “collision.” There remains another very common practice which is also challenged by activists, which is to report road collisions as if there were no human being involved. So you will typically find reports saying, “woman hit by car at street junction,” as if somehow the car was the only relevant actor at the scene.

Ian Loader: People get very upset about that, and I can understand why, because I think it’s a way of denying any human involvement in a violent event, and it’s also a way of kind of sneaking the whole problem back slightly into the realm of accident, as if these kind of things just happen, they’re kind of acts of God, they’re just—there’s not really much that we can do about them. And I think road safety campaigners have, on the one hand, been very successful in making, I think, a move which is strategically necessary, which is to reinsert a human driver into these situations. My worry is that by doing that, they’ve played into that kind of motonormative language that I’ve just been describing. In other words, they reinsert the idea that when we think about road safety and road violence, that we need to focus our attention on the responsibility of individual drivers. And I think that’s a big, big mistake, and it’s a mistake our law makes, and it’s a mistake that sometimes road safety activists can find themselves kind of falling back into.

Doug: I have a similar conversation with myself about this. On the one hand yes, I do understand why people say, “Hey, wait a minute, you said, you know, car hits cyclist, but a driver was behind the wheel. And what was that driver doing? Were they texting? Were they drunk? Were they distracted in some other way?” But then, of course, that is coming up against the movement among activists to de-carcify, let’s say, the consequences, to really think more systemically about road violence as a systemic problem. But those two things are at odds. If we say, “Oh, this driver was distracted,” well, then we just need fewer distracted drivers. And you leave open this conversation that if everyone would, quote-unquote, “just behave,” and if we could punish people and they could get the right message that if they don’t just behave, they will be punished, then we’ll all be fine.

Doug: But of course, I think we all know, and most people listening to this understand, that it is a systemic problem. You know, I think about it in terms of, like, consumer products. When kids were killed by lawn darts in the 1970s and ’80s, we didn’t say “child killed by person throwing lawn dart,” we said “child killed by lawn dart,” and the US Consumer Products Commission banned lawn darts. So I go back and forth on this, but what I loved about your study is it kind of takes even what I’m talking about to a higher level of conversation that challenged my own way of thinking, which I’m wrestling with still. So I wonder if we could really expand on that just a little bit more before we get into the nitty-gritty of the study.

Ian Loader: Let me scroll back for a couple of things. There’s one important thing to say about the work that punishment does here. There’s a famous French sociologist in the 19th century called Émile Durkheim, who famously argued that the principal target of punishment is not the person being punished, it’s the onlookers, it’s the people who are watching the punishment being enacted. And what punishment does, he argues, is to kind of shore up the kind of moral conscience of the people watching and provide a kind of reassurance that they are the good people and the bad person is being punished.

Ian Loader: And I think something similar happens in kind of the motoring space when law intervenes to identify and blame the individual driver, which is the rest of us feel on one hand reassured that the individual driver responsible for this act of violence or injury or death has been appropriately dealt with by the courts, and the rest of us can be reassured that one, that we are not like that, we are safe drivers, and that the whole system that might in all kinds of ways have contributed to that particular incident is itself safe. And that’s why I think that in an important sense, the kind of cultural role that law plays here and punishment plays here is to reproduce the illusion that driving is a safe system and that the problem is the individual bad driver. I think that’s a huge mistake, and I worry that that’s the mistake that the kind of road safety lobby fall back into when they, in some ways quite properly, try and insist on reinserting the driver into the story and the reporting.

Doug: The word that you settle on really is “harm,” this idea that we need to think of this entire system as harmful, one that begins the minute we roll out of the driveway and onto the road, park the car at work or wherever we’re going and make the return trip, and not on these extreme cases of traffic violence or injury and death. And as you write, “Harm has a capaciousness that is helpful, acknowledging and drawing our attention to detrimental impacts that may not be intended or even regulated by criminal law.” So we are gonna get into the idea of criminal consequences, because I don’t want people to think that in your study, and we’ll get to this for sure, that you’re arguing there should never be criminal consequences for a driver who injures or kills someone else with their car, that you can drive drunk, you can fiddle with the radio, look at your phone, and it’s really a systemic problem and individuals have no bearing on this system. That’s not what you’re arguing. But what you do want us to do is just decenter criminalization as our primary means of fixing this system. And also not in the way that I think we sometimes talk about here in the United States, for example, where we say sending someone to prison, a carceral solution to these things, is not necessarily going to fix the problem. Restorative justice and other forms of consequences might be better. That’s not even what you’re arguing. You’re saying we have to completely upend the notion of where the law enters into the conversation. Is that correct in the way that I’m thinking about this?

Ian Loader: That’s entirely correct.

Doug: All right, that’s good. I’m glad you said I was entirely correct. Thank you.

Ian Loader: It’s not that I want criminal law and punishment to kind of entirely get out of the way and we treat this as just some kind of regulation of harm problem. I still think there are a whole series of driving offenses that should be driving offenses, as in against the law. And there may be moments where that has consequences which take the form of punishment. But I think that should come a long, long, long way down the forms of thinking and action that we need to take in order to deal with the harm-producing consequences of automobility systems. So they need to kind of—excuse the motoring pun—they need to get in the backseat.

Doug: Well, you write that in the study, that criminal law and punishment must take a backseat, and that we need to decenter the penal mindset and treat the problem instead as a matter of environmental regulation, which I thought was a great way of thinking about this, because this is the environment in which we are living in, and the harms are to our very environment itself, both societal and the actual biosphere that we’re living in.

Ian Loader: I think harm is helpful here because it takes the conversation beyond the question of whether or not the various injuries produced by systems of automobility should or should not be criminal offenses. There are various forms of systemic harm generated, which we need to think morally and politically seriously about without saying we just need more crimes here. And equally, I think at the other end, you can properly use the word “violence” to describe what’s going on. It’s a fact in the bit of the world that I work in, criminal law and punishment, violence always sends a signal that some individual has somehow deliberately set out to inflict injury upon someone else. And that’s why the term can sometimes jar. But as you just said, the serious destruction of animal and human life and environments, there’s all kinds of ways in which it makes proper sense to describe that as violence. Both because at one level it is a provocation because it jars with so many people, but at one level it’s also an accurate description of what’s going on.

Doug: To that point, which you make in the study and which we talk about all the time, nobody wakes up in the morning and before they get in the car to commute to work says, “You know what I might try to do today? I might try to kill someone with my car.” Now there are deliberate acts of road violence, as we’ve seen people intentionally ram their cars in political protests or against cyclists or things like that, but I think we all generally understand that most of the harm that is caused by drivers or cars or our road system is unintentional. And that also then becomes part of the motonormative aspect of our penal system where, as you mentioned earlier, a judge or a jury or a defense attorney says, “Well, this person didn’t mean to do this. They’re not a bad person. And so therefore hey, it could be any of us who fiddled with the radio, and let’s go lightly on this person.”

Ian Loader: I mean, there’s a case I describe in the study where a motorist had killed a cyclist somewhere in England while being distracted on their phone for wiping away notifications. And they were convicted, but I was struck by the judge describing the case as “very sad.” Now in all kinds of ways, it was very sad, but it struck me that that’s not the kind of judicial utterance that you ever get in equivalent forms of violence, which involve guns or knives or people who kind of fit rather more neatly into our stereotypes of what criminals are supposed to look and feel like.

Doug: So let’s get into how you say we should radically decenter criminal punishment from how we respond to road harm. You say, as I mentioned, that we should turn to practices of environmental regulation organized around five road violence reduction principles, or as you call them, the five Ds. Those are diversion, design, distributed agency, deliberative learning and the disassembly of dangerous actants, which that one is really one of my favorites, we’re gonna get to that. Let’s walk through them one by one. I think diversion is probably pretty simple for people to understand. Define what diversion is.

Ian Loader: Diversion is a criminal justice term. So there’s been a lot of talk in criminal justice circles over the years about when you acknowledge the kind of harmfulness and futility of sending people to prison, thinking of all kinds of ways in which you can divert people from the criminal justice system or from prison into more productive responses to their harm. I borrow the word, but I don’t quite mean that. What I’m trying to get at is that driving is harmful, not because individuals are taking a whole series of bad decisions, but the harm generated by automobility is a systemic problem, and it’s a population-level problem. And the point one in trying to tackle it is effectively trying to reduce the amount of driving that goes on in this society, the amount of tonnage of cars on the road, the amount of miles driven, and to generate a series of kind of policy options that can make that realistic.

Ian Loader: One starting point here is just to name that as a public policy goal. And there’s very few places in the world where even that’s stated. I’m fortunate enough to live in one of them. My local authority here in Oxford has a stated policy objection to reduce the number of miles driven and has a diet of policies to try and generate that. If you want to reduce road harm, that needs to be the starting point. And it requires all kinds of things that you and others have discussed in this show many times, generating decent, affordable alternatives in terms of public transportation, safe bike infrastructure. In other words, to kind of just radically multiply the options that people have to get themselves and their loved ones and their things around on a daily basis, so they don’t have to drive all the time. I mean, how we do that takes me a long way away from this paper, but that has to be the starting point.

Doug: And as you write, you say “In the short term, these measures are geared towards diversion.” And the measures you’re talking about are, you know, moving people to public transport, giving people more options. And you continue, you say “They’re ultimately aimed at dismantling automobility as a system and form of life in favor of living with multimodal mobility systems in which car travel becomes a specific-use transport mode of the last resort,” which is music to The War on Cars‘ ears. So I think that was really fascinating. It’s like you want to be able to have a menu of options, and a car may be the right tool for the job, but shouldn’t be the only tool for the job.

Doug: You mentioned the philosopher Émile Durkheim, and Ian Walker mentioned David Hume. So I don’t know what it is about British researchers who are into this subject and philosophers, but I do love it. It’s pretty great. So the next one of the five Ds is design, and that should be pretty simple for people to understand if they’re regular listeners of this show, but I want you to expand on the idea of system design or road design as a solution here.

Ian Loader: I mean, design is pretty self-evident, but it can mean a number of things. I mean, one is you could start with the object itself. I mean, in all kinds of ways modern cars are getting safer—they have advanced braking systems and so on and so forth. So one does want to focus some attention on that. In this context, we as a society need to have a serious conversation about the increasing size of cars and the ways in which the motor industry has been enabled to increase the weight and size of cars in full knowledge both that those cars take up more of limited city space and that they are objectively more dangerous if involved in a collision.

Ian Loader: So naming and handling and regulating the problem of car sprawl, I would fold under an element of design. But for the most part, design is about how we think about streets and what they’re for and who we allow access to them and at what speed. So I have in mind here the whole diet of policy measures that have been taken around the world to do with controlling speed in built-up areas, of generating areas of cities where cars can’t go, where we prioritize other kinds of use. The general point being that we spent a hundred years designing cities—putting the car first and designing cities around them. I think it’s about time we reversed the order of those things and designed the kind of cities that we want to live in, and then figured out the ways in which the car can safely exist in that environment. And for my money—and I’m not the first person to say that—it means treating a car as a guest, not an owner. And that has all kinds of consequences for how we think about the physical organization of the landscape. And that makes much more sense in safety terms than dealing with enforcement. I mean, the Dutch, I think I’m right in saying, they’ve got a kind of saying that if people keep speeding on a particular road, you don’t get out a speed camera, you go and redesign the road so they can’t speed. And that’s the kind of thing I have in mind. Though, to go back to your point, I mean, I don’t think the police and enforcement are central to how we make roads safer, but they have a part to play. Conceptually, I would think about policing and law enforcement and camera surveillance and all the other techniques we use to try and slow down and control road traffic as part of the design piece, rather than a separate enforcement piece.

Doug: And interesting that you say that, because one of the things that stuck out to me in this study was that you’re framing driving and our system of driving as a harmful system in and of itself, right? So of course law enforcement should be there to stop drunk drivers or perhaps to see a person fiddling with their phone and pull them over. But you write that in a system such as driving, lawbreaking is the majority. Everybody is breaking the law. We’ve all sped a little bit or not come to a complete stop at a stop sign or whatever it is. And therefore, it’s futile to treat road safety as principally a law enforcement issue, because the cops can’t pull over everyone. And that beyond design of slowing down drivers, we also need to radically rethink where and how cars are allowed to operate. So you cite things like the superblocks in Barcelona, low-traffic neighborhoods in London, and low emission zones, for example, and just slowing the speed in general. So it’s kind of a radical rethinking of just where and how cars should operate within our lives, within our cities, within our society.

Ian Loader: That’s right. That’s right.

Doug: Okay. The next of the five Ds is “distributed agency.” We’ve been talking a lot about how we should think about individual driver responsibility and the passive voice often in the reporting of road violence. You know, you cite a story from the US where police are investigating after a woman was hit by two cars and killed, and that we need to rethink how we talk about this stuff. But you write, “To reduce road harm, we do not need individualized responsibility.” And you say this is part of the road unsafety problem. We need to think about diffused responsibility. So what is that?

Ian Loader: Diffused responsibility is two things consistent with the idea that you think about automobility as a harmful system or regime, that you have to ask questions about the ways in which different actors in that regime can be responsible for road unsafety and harm. So the diffusing of responsibility means that when we think about these questions, we call car manufacturers to account for the kinds of products they promote and how they advertise them. We think about city planners and traffic engineers and the kinds of environments that they build. In other words, there’s a whole network of actors and institutions who are responsible for the management—the creation and management of the system in which road safety or unsafety takes place. And there are moments in which—and we’ll come on into this—you want to call them into the room to be part of the conversation. So that’s one part. The second part comes back to what we were discussing earlier, that there’s this kind of to and fro between those who want to kind of write out the agency of the human and talk about cars running people over as if no one else was at the scene, and the kind of move of the road safety lobby which wants to kind of re-insist on the responsibility of the driver. And I think both of those moves are a mistake. So this is clearly French sociologist day. [laughs]

Doug: I was about to bring him up because this—I want to—I actually do want to, like, tell people to, like, perk up their ears because this to me was the most fascinating part of the study—not that the whole thing wasn’t fascinating. But let’s talk about Bruno Latour.

Ian Loader: So Bruno Latour, very helpfully and analogously, has this really interesting analysis of how we think about gun violence. And his starting question is: Do guns kill people, or do people kill people? The problem is individuals who would kill people anyway with a gun or no gun, or whether or not the gun has been the thing that makes them kill. And you can have an analogous discussion about whether cars kill people or about whether drivers kill people. Latour says that’s a mistake, and it’s a mistake that follows from the fact that when we think about the world, we think about humans who have agency and objects that, in this view of the world, have no agency. And he thinks that’s a mistake, because he says that actually what we need to think about is the relationship between humans and their objects and what happens when they are brought into a relation. So he wants to say that the human with a gun is a different kind of human, or a human driving a car, than a human without a gun or a car. And a gun locked in the locker is a different object than when it comes into correspondence with a human. And the car is a different kind of object parked in a garage than when it’s being driven. So the creation of this human-object relation creates a new thing in the world. He thinks the thing that we’re trying to have to reckon with in this context—and this is the point I try and make—is not the driver who’s responsible or the car who apparently can act on its own, but a distinct and distinctively risky agent. He uses the fancy term “actant,” because he says humans have kind of monopolized the word “agent,” So you call them an actant.

Doug: So yeah, he calls them a “hybrid actant,” which I found fascinating.

Ian Loader: I mean, at one level it sounds weird, but I think we all know that experience. Anyone who has driven knows they are not quite the same person behind the wheel of a car as they are outside of it. I spend much of my kind of campaigning life trying to get 20-mile-an-hour limits in my city, but behind the wheel of the car, I’m perfectly capable of thinking, “God, this is slow!” Because you are suddenly not the same person as a driver than you are outside of it.

Doug: [laughs] Yep.

Ian Loader: And the car is not the same thing with you driving it than if it’s parked on your driveway.

Doug: And I think we do know this intuitively, that we are something different, neither man nor machine, separate, but something in between. We often talk about cars as like an exoskeleton for humans. You know, what’s the worst thing that a cyclist or pedestrian can do to a driver if they’re about to be hit by that car? Hit the windshield, tap on the window. What do drivers say? Don’t you touch my car! No harm has come to the driver. You haven’t scratched the car, but it feels like an invasion of personal space. So the car is not just this piece of property, like, oh, you scuffed my shoes. It’s something more than that. So I think we do understand this intuitively. And that’s why the phrase “hybrid actant” really stuck with me, because I felt like that really explains it in a way that makes sense to me.

Ian Loader: And I think it’s kind of easy to laugh this off as a piece of fancy French philosophy, but I don’t think it is. I think it has real practical implications, because all of a sudden you’re not trying to punish a driver or put controls on a car, you’re trying to regulate a particular kind of entity in the world that is different from the human and different from the object.

Doug: Another thing that you write along these lines in the study is that when a new technology—and let’s consider a car a new technology in terms of humanity—comes along, it creates something new that didn’t exist before. And you write, for example, “We move from, I can drive to the shops rather than walk or take public transit. A new category of activity of human behavior is created through the action of this.” So it stands to reason then, that a new form of killing that needs to be reexamined in terms of how we react to it, how we prevent it, also is invented or should be invented as a result.

Ian Loader: And I think if you think about it in the terms you’ve just described, it’s very odd to suddenly think well, our response to the creation of that new risk is to kind of extract the individual human from the situation and focus all our attention on them rather than the whole mix of human-technology relation, built environments, various forms of regulation and technological innovation, all of which have been responsible for generating that harmful environment.

Doug: I want to read this part because I read it multiple times and highlighted it. You write, “A system of environmental road harm regulation needs to diffuse responsibility along these lines. It must recognize that the object of regulation is not human motorists. The human-vehicle coupling constitutes a novel, distinct and distinctively risky agent in the world. It requires a post-human ontology that treats road violence not as the fault of drivers or product of human error, but as the situated outcome of relations between specific human-object hybrids.” Driver-cars, as you say. And I love your—you’re rather self-effacing in your study, and you say this may appear highfalutin, but it’s an important concept to really dig into.

Ian Loader: And I said it deliberately. I mean, I was just saying, it can all look like one’s disappeared off into the world of kind of philosophical reflection, but I don’t think that for a minute. I think if you took that idea seriously, it would have really radical practical consequences.

Doug: I have a special guest back with me in the studio. This is your third or fourth appearance on the podcast?

Zeb Gordon: Probably, yeah.

Doug: What’s your name?

Zeb Gordon: Zeb Gordon.

Doug: Oh, I should know that because you’re my son. How old are you now?

Zeb Gordon: I’m 13.

Doug: It’s kind of wild that you’ve been doing this since 2018, since you were really little.

Zeb Gordon: Yeah.

Doug: Okay, so we’re here to talk about Cleverhood. We both took our Cleverhood Rover Rain Capes. Do you remember where?

Zeb Gordon: Disney World.

Doug: To Disney World, because we were traveling together, because I’ve been on book tour, and what does a guilty father do?

Zeb Gordon: They take you to Disney World.

Doug: They take you to Disney World when they’ve been away. What I remember about that trip was it really only rained, like, once while we were there. I had my, like, park bag because I’m a Disney adult. You’re shaking your head. Why are you shaking your head?

Zeb Gordon: Because you’re just—you have the gear, the Mickey bag.

Doug: I have the gear. I did take our Cleverhoods, because the cool thing about them was that they stuffed down so small into that bag that we could walk around all day, and you probably didn’t even know I had them until I pulled it out.

Zeb Gordon: Yeah.

Doug: What do you like about the Cleverhood?

Zeb Gordon: They’re good for biking. Like, when we did the Five Borough.

Doug: Right.

Zeb Gordon: When it was raining a lot.

Doug: We did the Five Borough Bike Tour, and it started raining towards the tail end. It really started. And what did we do?

Zeb Gordon: And we just put them on, and they were really good with stuff for the thumbs.

Doug: Right. They have thumb loops so that when you’re holding your handlebars, the cape doesn’t fly around. And the hood fits right under your helmet so it doesn’t fly away. So that’s good. And what color was yours?

Zeb Gordon: Yellow.

Doug: I think I said this last time you were here. Part of podcasting is asking questions you know the answer to, and I feel like that’s similar to parenting. Don’t you agree? I’m always asking questions, and you’re like …

Zeb Gordon: You know what the answer is.

Doug: So would you recommend the Cleverhood to other kids?

Zeb Gordon: Yeah.

Doug: And to parents?

Zeb Gordon: Yeah.

Doug: Traveling?

Zeb Gordon: Yeah.

Doug: For riding bikes?

Zeb Gordon: Yeah, they’re good. They’re comfortable. They’re for everything.

Doug: You’re a lot less talkative than you were when you were little. Does that happen when you turn 13?

Zeb Gordon: I don’t know. I’ve been 13 for, like, four months.

Doug: All right, well, you’ll tell me at the end of your time as a 13 year old. Maybe when you’re 14, you’ll talk more. Who knows? But did you know, Zeb, that listeners of The War on Cars can save 15 percent off of the best rain gear for cycling and walking and traveling and riding the Five Borough Bike Tour and going to Disney World with code TRAVELWITHME now through the end of the month of June. Did you know that?

Zeb Gordon: I did not.

Doug: You did know that because you were sitting here while I was recording the rest of this episode.

Zeb Gordon: Oh, I didn’t know that until then.

Doug: Oh, because you had your earbuds in and you were just playing on your tablet. Okay, well, go to Cleverhood.com/waroncars and enter code TRAVELWITHME and you’ll save 15 percent.

Zeb Gordon: I don’t think we really need to save 15 percent off on Cleverhoods. We have so many now.

Doug: Oh, we don’t need to save 15 percent off, because Susan very nicely sent you one or two. Yes. But everybody else can go to Cleverhood.com/waroncars.

Doug: So the next of the five Ds is “deliberative learning.” And to give people a little bit of context, I think we understand this in the terms of airplane crashes. Let’s talk about deliberative learning in the context of road safety.

Ian Loader: Airline safety is one of the resources I draw upon to think about that. I mean, it’s commonly said the reason why airlines are so safe is because when things go wrong, people aren’t trying to kind of blame the pilot, they’re just trying to figure out what happened and stop it happening again. The other way into this is restorative justice from a kind of criminal justice angle. This and the next kind of principle are ways of saying, well, when stuff does go wrong, when people are injured and killed on the road, either in particular fatalities or in a spate of incidents in a particular location, what do we do? And the first thing I want to do is effectively gather together all the people in the system who I think are responsible—the car manufacturers, the traffic engineers, the police, I mean, all relevant actors, as well as the driver-car and their family and the victim’s family. So it has a bit of a feel of a restorative justice gathering.

Ian Loader: And I think the purpose of that inquiry would be twofold. One is a kind of public recognition of the violence and the loss, and as Peter Norton points out in his book Fighting Traffic, in the 1920s there was much more of that. There were kind of officially recognized memorials to slain children put up in American cities. One of the marks of the fact that we’ve normalized road death is that that doesn’t happen anymore, or if it does, it happens informally, like the victims’ families do it, or the cycling groups put up a ghost bike, but we don’t do it as a matter of—it’s not a public act of mourning and loss. And I think one way of denormalizing road death is to do a bit more public recognition and acknowledgement of what’s happened in situations where people are slain on the road.

Ian Loader: So the inquiry would have that function, but it would also have a function akin to what goes on in the airline industry. It would be trying to say the ways in which these kinds of cars are commonly advertised as being kind of speed machines, and to come to some kind of determination about how this kind of incident can be prevented in the future. And it’s perfectly possible there may be occasions where someone said, look, the driver was just staring at his mobile phone. And that could be the outcome, but that shouldn’t be the starting point. The starting point should be a kind of environmental one. What was it in this system, in this layout that produced this death, and how can we stop it happening again?

Doug: Although I would probably argue—and I’m speaking up for, I would imagine, a few listeners who are thinking this right now—the driver staring at his or her phone, there are technology fixes that could solve that problem, such as some sort of tech where you disable your phone, all but the most necessary features—let’s say Maps or whatever it is—while you’re driving. The tech companies are perfectly capable of creating something where it is impossible for you to use your text, your messaging while you’re driving. So even there, the discussion of oh, the driver was on their phone, that should be the start of the conversation, not the end.

Ian Loader: No, exactly. I was having a conversation with someone on Monday who was describing to me hiring a car where the Spotify feature on the music system came up and it played the videos from the songs. Like, literally, you’re driving and the video was showing here. And I mean, that’s a perfect example of what you’ve just described.

Doug: I mean, Apple CarPlay shows you how many text messages you have. And there’s that little red dot with the number in there. It is beckoning you to press on it and find out what that is. That’s just human nature.

Ian Loader: But I think you’re totally right. And that’s why you want the car companies in the room when these inquiries take place.

Doug: And we have experience with this because 1965, Ralph Nader, Unsafe at Any Speed. What did that book show? That there were steering columns that weren’t collapsing during car crashes, that were impaling drivers. And what happened? The car companies, through regulation, had to redesign those columns so that they would collapse in the event of a crash. So we have experience with this here in the United States and elsewhere.

Doug: So the last of the five Ds here is what you call “disassembling dangerous actants.” I’m just gonna let you go for it. I’ve read this multiple times now, and it’s super fascinating. What do you mean by that?

Ian Loader: This, for me, is the practical payoff of treating the problem of road unsafety as a question of how you regulate driver-cars, not how you punish individual human drivers. The starting point for this is let’s take the conventional approach. The conventional approach is that often in our society, if we think something is a serious problem that isn’t being treated seriously enough, especially when it comes to crime, often what we want is more serious punishment. There’s too much leniency and we want serious punishment. And you get some of that in the road safety space, and I can kind of understand where it comes from, but I think it’s not the way to go.

Ian Loader: And it’s not the way to go partly because I think it’s difficult, because it requires judges to see criminals where they don’t see criminals, but also because it prioritizes the wrong thing. To borrow a term from the kind of transformative justice movement in the US, as elsewhere, that I think bad driving should have consequences, it needn’t necessarily have punishment. And the idea of disassembling the dangerous actant looks something like this: that there is a combination of human and object that has proven itself to be demonstrably dangerous. It has run someone over, it’s killed someone in a collision. We should effectively, in responding to that, even if we’re responding to it in a criminal trial and someone has been convicted, the first thing we should do is do safety work, to ask itself the question, how can we act on that hybrid object in order to stop this happening again? And it seems to me you can go one of two ways here. You can act on the human part of that hybrid. The way I cache this out is to say that we should make license suspension and revocation a much more prevalent and commonly utilized way in which we respond to risk and danger on the road. At the moment in England and Wales, it comes last, and it feels like a kind of afterthought after the punishment has happened. And justices have found themselves very reluctant to take people’s driving license off them for all sorts of reasons to do with motonormativity.

Doug: I was about to say, we talked about this very thing with Ian Walker in that in many places, having your license taken away is seen as a punishment worse than a prison sentence. You’re essentially saying to the person you may not participate in society anymore. And that’s why judges are reluctant to do it.

Ian Loader: So I think we should do that much more often than we do. We should do it earlier for short periods of time, and we should do it for extended periods of time in the most serious cases. And obviously, we need to think carefully about how that operates in practice. It’s a very different experience losing your driving license if you live in New York than it is if you live in rural Ontario. So one has to think about the kind of differential effects. But I think that we should be much less cautious than we are currently about doing that. But at the same time, we can act on the vehicle. There’s all kinds of things that we can do to vehicles to make them less dangerous. We can put black boxes in them, we can put technology in them that means they can’t be started without passing a breath test for alcohol. As Peter Norton also points out, the speed governor was an available form of technology back in the 1920s. There are now forms of intelligence-based speed assistance that can tie cars to the prevailing speed limit in the environment. So my thought is that we want sentencers to flip it, to flip what they currently do and do that first, do the future safety work, and do it in order to prevent future risk. And if having done that—and I’ve had some pushback from road safety campaigners who’ve read the article …

Doug: Yeah, what’s the pushback there?

Ian Loader: The pushback is, are you really trying to say that this driver has driven dangerously and killed a child and you don’t think they should go to prison for a very long time? I can kind of see why people feel that, especially if they’ve lost loved ones to dangerous drivers. It’s not my position that punishment is never appropriate, but I think we should be clear what we’re doing when we punish, that we are enacting that punishment because we’re angry with someone because of the harm they’ve caused.

Doug: Yeah.

Ian Loader: Not because we think it’s gonna generate safer roads.

Doug: I think a lot of this comes down again to motonormativity. You know, we had an issue as safe street campaigners and activists here in that we would find that our former mayor, Bill de Blasio, was very much in favor of speed cameras, red light cameras, things like that, which was great, and we were grateful for his support. But anything that would take other privileges from drivers, such as parking, road space, things like that, to actually slow drivers down was seen as an imposition. And I think what was at the core of that was that when a driver gets a ticket for speeding, that’s a bad actor doing a bad thing, and they deserve punishment. When we take parking and road space from drivers, you’re harming everybody else who are not seen as bad drivers or bad people.

Doug: And so I think that that’s kind of the pushback also that happens is that, of course, we should send that person who killed a child to prison. They’re a bad person who did a bad thing. But I confronted Bill de Blasio on that very philosophy when two children were killed in our neighborhood. And what I said was, you know, I’m not saying people shouldn’t receive consequences and punishment for when they do something egregiously bad, but I don’t want the driver who killed my children to go to prison. I want my children to not be killed by the driver. That’s the goal, where we have to start. So there are some efforts towards that goal. Here in New York state, for example, the Stop Super Speeders Act, which was just passed by the New York state legislature, would stop the so-called “super speeders” by forcing drivers who have 16 or more school zone speed camera violations in 12 months, it would force them to put a speed governor in their car, and then have that speed governor in the car for at least another year after it’s installed. So there are some moves towards that where we can debate whether 16 is too high—and it probably should come earlier—but it is a new way of thinking about harm prevention and consequences for drivers.

Ian Loader: Yeah. Interesting. I think I was reading last week, the French government have introduced a measure to make license suspension an immediate consequence of driving while looking at a mobile phone. So there are clearly things in the general area that I’m trying to describe happening.

Doug: And as you mentioned, I mean, some of those suspensions could be you lose your license for a month. It’s not a permanent revocation. You know, it depends on the offense, of course.

Ian Loader: I think that’s right. There could be very short periods of suspension. But equally, in the most egregious cases where people have just driven in ways which are just criminally irresponsible and taken a life, I kind of feel more comfortable with that person never driving again than I do with sending them to prison in a kind of way. And at the very least, the more general point I’m trying to make is that we flip what sentencers currently do, do the safety work first. If at that point they decide that some quotient of punishment is still required, then do that. And I didn’t come to a view on what that should look like. I just think it should be secondary to what really matters if we’re interested in safe roads.

Doug: And so, as you mentioned, and as you write in the study, we need to think of this not as a censure for past behavior, but protection against future risk. And one of the parts that I loved about this section was in talking about license suspension or revocation, that we understand it not as the punitive removal of a quote-unquote “right to drive,” but as the withdrawal of special permission to operate hazardous machinery, which itself is a radical reconceptualization of driving. You know, we think of driving as just a human going from point A to point B, but it’s not. Number one, if we’re to go back to the hybrid actants thing, it’s something other than human going from point A to point B. But at its very basic level, it is a human being operating heavy and dangerous machinery on public roads, in public space, with exposure to other people for public harm.

Ian Loader: Exactly. One of the basic things that we forget about driving is that driving a car is illegal. It’s one of the things that distinguishes it from cycling. Driving a car only becomes legal under a very specific set of circumstances, some of which pertain to the car—it has to be safe in various ways—and some of which pertain to the driver—they have to be trained, they have to have a license. In other words, they have to have been granted permission to operate that car by the state. And I think if you’ve been demonstrably unable to operate that object safely, I don’t see why we shouldn’t remove that permission.

Doug: And as you write, we’re talking then about disqualification, not punishment. And it pertains, as you say, to special skills subject to licensing and extensive regulation, with services having a fiduciary character—in this case, perhaps to other road users—in relation to people having substantial vulnerability, which I just think is a really great way to frame this, and that we are rethinking, thanks to your study—and I really encourage people to read it—the very nature of driving itself, which is a thing we have to get at if we’re gonna fix this problem.

Ian Loader: So I think in summary—I was thinking about this before I came on—the standard chain of logic with how we deal with road safety at the moment goes something like this: that driving is basically safe. It only becomes unsafe if individuals do it dangerously, and that therefore the chain of intervention goes something like individual responsibility, enforcement, punishment. My alternative goes something like that. The starting point is that mass motoring is a system of harm production, even when people are driving carefully and considerately, and the chain of intervention should be start with systems, think about infrastructure, and then bad driving has consequences, not necessarily punishment.

Doug: Professor Ian Loader, thank you so much for joining The War on Cars. This study is one of the more fascinating ones I have read in all my years of doing the podcast and doing this work. And I thank you so much for putting into words things that I think a lot of us have been struggling with for a long time.

Ian Loader: It’s been an absolute pleasure.

Doug: That’s it for this episode of The War on Cars. Once again, I want to thank Professor Ian Loader for joining me. I will put links to his study and more of his research in the show notes.

Doug: Remember, if you like what we do here at The War on Cars, please become a Patreon supporter at Patreon.com/thewaroncarspod. We want to thank everyone who makes The War on Cars possible, including our top contributors. Charley Gee of Human Powered Law in Portland, Oregon, Mark Hedlund, Virginia Baker, Brandon DeCoster and Dave Shellnut of The Biking Lawyer LLP in Toronto, Canada.

Doug: And please pick up a copy of our book Life After Cars: Freeing Ourselves from the Tyranny of the Automobile wherever you get your books. You can learn more at LifeAfterCars.com.

Doug: Thanks also to our friends at Cleverhood. Listeners of The War on Cars can save 15 percent off the best rain gear for cycling and walking now through the end of June with code TRAVELWITHME. Just go to Cleverhood.com/waroncars.

Doug: Thanks also to Upway. You can save $100 off your purchase of a certified pre-owned e-bike of $800 or more with code TWOC100. I’ll put a link in the show notes.

Doug: The War on Cars is produced with the support of the Helen and William Mazer Foundation. This episode was recorded at the Brooklyn Podcasting Studio by Josh Wilcox. It was edited by Yesenia Moreno. Our theme music is by Nathaniel Goodyear. Transcripts are by Russell Gragg. Our logo is by Dani Finkel. I’m Doug Gordon, and on behalf of my co-host Sarah Goodyear, this is The War on Cars.