Chapter 4 The Criminalization of Walking

In June 2017, Devonte Shipman, a twenty-one-year-old Jacksonville, Florida, resident, posted a video to his Facebook page that went viral. The footage—shot shakily from a cell phone—showed Shipman and a friend after a Jacksonville sheriff’s deputy had stopped them for crossing the street against the light.

It was a relatively routine enforcement for Jacksonville police, and it was not—like so many videos of this genre—a violent confrontation. But the episode—something about the officer’s demeanor combined with the pettiness of the offense—still outraged the thousands of people who saw Shipman’s post.

When initially approached by Deputy J. S. Bolen, Shipman and his friend seemed genuinely confused.

“What was it we did wrong?” Shipman asked.

Bolen quickly explained that they crossed against the light. He continued, “Get to my car. You are being legally detained. If you disobey . . . I will put you in jail.”

Shipman and his friend protested. “For crossing the street, officer?”

“Walk to my car. I’m about to put you in jail,” said Bolen.

Shipman—Bolen warned—could be jailed “for seven hours” for a litany of offenses he accumulates while standing there “calmly”—as the Florida Times-Union described it—asking questions.1

Finally, Shipman gave up and walked to the cruiser, where he was ticketed for jaywalking and for not carrying an ID.

Later that night, Shipman posted the video on his personal Facebook page, and from there it began making its way across the internet. It was shared thirty-seven hundred times before being picked up by all the local news stations and eventually the Washington Post. The case prompted an internal investigation by the Jacksonville Sheriff’s Office.

Among the more than a half million people who viewed the video was Topher Sanders, a reporter at the nonprofit investigative news organization ProPublica. Sanders, like many others, saw the incident as racial profiling. It made him wonder how often young black men were being stopped by Jacksonville police for jaywalking and how they were being treated. The local newspaper noted that Shipman had been improperly cited for failing to carry an ID, but there is no law in Florida requiring pedestrians to carry a photo ID. (Only drivers are required to do so.)

ProPublica teamed up with the Florida Times-Union in Jacksonville and conducted perhaps the most comprehensive investigation of jaywalking enforcement ever. Reporters at the two news organizations combed through twenty-two hundred Jacksonville jaywalking cases between 2012 and 2016.

Their findings confirmed Sanders’s suspicions and worse. The review found that a disproportionate number of tickets were issued to black residents, particularly those living in the city’s poorest areas. Black people were three times as likely as white people to be ticketed for a pedestrian infraction in Jacksonville, and black people who lived in the poorest zip codes were six times as likely.2

The tickets, starting at sixty-five dollars, were more than just a headache for the people stopped. The review found after five years, about half the cases had not been resolved, meaning that they had been neither paid nor dismissed. For very low-income people, they were often life-altering, resulting in crushing collections cases or a potential cascade of legal penalties, such as suspended driver’s licenses.

Jacksonville police defended the enforcement on safety grounds, but Sanders and his team found that there was essentially no relationship between high-risk locations for pedestrians and where the tickets were issued.3 Despite the frequent ticketing, pedestrian safety in Jacksonville eroded during the five-year study period. In fact, the city was ranked the fourth most dangerous metro area in the United States for pedestrians by a national group the same year that Shipman was stopped.4

The investigation also raised more fundamental questions about the fairness of Florida’s jaywalking laws themselves. There are twenty-eight different infractions on the books in Florida that regulate pedestrian behavior. In addition to what we generally think of as jaywalking, pedestrians in Florida could be stopped and cited for not crossing at a right angle, for walking on the wrong side of the road, for not crossing using the shortest route, or for not walking on the sidewalk, among other things.

The rules were so profuse that practically anyone walking any length would run afoul of one of them, the reporters determined. In fact, Jacksonville sheriff’s deputies themselves were caught on video on multiple occasions violating one of Florida’s dozens of walking statutes.

Even the police officers charged with enforcing these laws did not seem to understand them. As in Shipman’s case, the investigation found that officers often cited people incorrectly. In about half of the 353 cases in which someone was ticketed for not crossing in a crosswalk, the ticket was issued erroneously.5

The review also found that Jacksonville police fell victim to a common misunderstanding about jaywalking laws: they assumed that everyone crossing outside a crosswalk was jaywalking.6 But under Florida law, every intersection is treated like a crosswalk, whether or not it is striped—except when it is located on the block between two marked crosswalks with traffic signals.

A Pattern of Unequal Enforcement

As alarming as the results of the Jacksonville investigation turned out to be, it is not that exceptional as far as jaywalking enforcement goes. Because the offense is so petty, giving police broad discretion over their response, jaywalking lends itself to biased enforcement. The same pattern seen in Jacksonville has been observed almost everywhere it has been analyzed.

In Sacramento in April 2017, for example, a twenty-four-year-old black man, Nandi Cain Jr., was stopped by police for jaywalking. The stop ended with an arrest, but not before a bystander had filmed police punching Cain eighteen times.7 The beating made national headlines. To make matters worse, it turned out that Cain was not even jaywalking; dash cam footage later showed that he was crossing legally in an unmarked crosswalk at an intersection.

A follow-up investigation by the Sacramento Bee found that in the year prior to this incident, black residents had received 50 percent of the city’s jaywalking tickets, despite making up just 15 percent of the population.8

The situation is remarkably similar in Seattle. Black residents received 26 percent of the city’s jaywalking tickets in 2016, according to a Seattle Times’ investigation,9 despite making up just 7 percent of the city’s population.

The bias persisted even as Seattle’s police department was under scrutiny for racist enforcement. In 2010, a Seattle police officer was captured punching a teenage girl who had been stopped for jaywalking, and the video went viral. As a result, Seattle police dramatically reduced the number of jaywalking tickets they were issuing, but six years later, the racial disparity had actually gotten worse. In 2017, vexed by the intractableness of the problem, one Seattle City Council member, Lorena Gonzalez, said that she would explore potentially eliminating the city’s jaywalking statute altogether, but the issue was never brought before the full council for vote.10

The data make a compelling case that jaywalking enforcement is usually racially biased, and it is hard to say whether it actually provides any safety benefit either.

In the United Kingdom, for example, there is no equivalent violation to jaywalking, but the pedestrian safety record there puts the US data to shame. The UK has about half the pedestrian deaths per capita as the United States.11 The same is true for most of the countries that have the best traffic safety records. In Norway, for example, pedestrians are encouraged to cross at certain locations, but there is no rule against jaywalking, and it is certainly not a crime that police go around punching people for violating. (Cultural differences in traffic safety are discussed in chapter 9.)

The level of risk involved in jaywalking is more complex than many people realize. According to the Governors Highway Safety Association, 72 percent of pedestrians who were killed in 2016 were struck outside an intersection.12 This figure is often used to imply that most pedestrians who are struck are “jaywalking” and hence at fault, but that notion does not hold up to close scrutiny.

Federally sponsored research in the 1990s looked more closely at the types of situations in which “serious pedestrian crashes” occurred. It found that in serious crashes, pedestrians are stuck in crosswalks almost as often (25 percent of the time) as they are struck “midblock” (26 percent). In the additional almost 50 percent of crashes, pedestrians are struck outside of what are seen as typical pedestrian crossing scenarios. Pedestrians are struck surprisingly often when they are not even on the roadway (8.6 percent of the time). (In most of these cases, pedestrians were struck in parking lots or driveways or when they were standing on the sidewalk where it overlapped with a driveway.) In almost 8 percent of cases, pedestrians are hit by a vehicle traveling in reverse. In 9 percent of cases, the pedestrian was “walking along the roadway,” often on a road that did not have sidewalks or where sidewalks were obstructed. And in almost 5 percent of cases, the victim was working on a road construction project, responding to a disabled vehicle, or a child playing in the road.13 If you look critically at the origins of jaywalking laws, however, it becomes clear that they were initially more about power than safety.

The Origins of the “Jay” Walker

Just over one hundred years ago, around the time automobiles first began appearing in US cities, the concept of jaywalking did not exist at all. On the contrary, prior to the 1920s, pedestrians had unrestricted and unquestioned freedom to roam the streets.

All that changed in the mid-1920s with the introduction of the concept of jaywalking, according to University of Virginia historian Peter Norton. Jaywalking laws amounted to a radical redefinition of what streets were for—and who their rightful users were. And contrary to public perception, Norton said that it did not just happen naturally.14

If you look at a historic photo from the early 1900s—of Boston or Cleveland, for example—you will notice that there were no crosswalks at all. Pedestrians amble casually across the streets: women wearing long flowing dresses, men in top hats, and children in knee socks.

At that time, streets, which occupy as much as 30 percent or more of the land area in many cities, functioned as a broad public space. Children used them for play. Merchants sold goods from carts. Neighbors would pause to have a conversation while making their way to alight a streetcar. But even then, that era was fading fast. As soon as cars began appearing on the streets, they started killing people—a lot of people.

The first person ever killed by an automobile in the United States was real estate agent Henry Bliss. In 1899, while exiting a New York City streetcar, Bliss was struck by an electric taxi, or horseless carriage, as they were called then.15

It would be more than a decade after that before cars were widely available to the public, but car ownership grew dramatically between the mid-1910s and the early 1920s. Henry Ford’s famous innovation—assembly-line production—helped reduce the price of a Model T from $950 to $290 between 1910 and 1924. And practically overnight, cars started flooding into cities. In St. Louis, for example, there were sixteen thousand registered vehicles in 1916; by 1923, the number had ballooned to one hundred thousand.16

By then, traffic deaths had become a widely recognized urban crisis. During the 1920s, about two hundred thousand people were killed. Disproportionately, they were children. In 1925 alone, cars killed about seven thousand children across the United States. City dwellers, and especially parents, were furious, and their fury was overwhelmingly aimed at drivers. On a particularly violent day in 1927 in New York City, eight children were killed in separate crashes. In one case, a mob of onlookers attacked the driver of the truck that struck a child.17

In contrast to modern media accounts, the news at the time was unflinching about where to lay the blame: on drivers. The St. Louis Star, for example, referred to drivers involved with pedestrian fatalities as “killers.” In 1923, an editorial in the St. Louis Post-Dispatch said that even in the case of “a child darting into the street” in “the excitement of play,” the “plea of unavoidable accident in such cases is the perjury of a murderer.”18

The notion of Americans’ love affair with the automobile—of an eager, frictionless adoption—is a carefully manufactured notion, according to Norton. In the 1910s and 1920s, there was an intense political struggle over the role of the car in American city life. That struggle came down to a fight over who would control the streets: drivers or pedestrians.

On the pedestrian side, the battle was waged in large part by mothers, many of them grieving children lost in car crashes. They formed chapters of the National Safety Council in St. Louis, Philadelphia, and Cleveland, for example, and fought for traffic safety reforms. A major flashpoint came in 1923 when forty-two thousand Cincinnati residents signed a petition for a referendum that would have required cars to have speed governors that limited them to 25 miles per hour within city limits.

On the drivers’ side, an aligned group of auto interests (auto dealers, auto clubs, oil companies—what Norton calls “motordom”19) was also getting organized to defend their interests. Their goal was towering: to reshape cities for the benefit of drivers. In 1921, for example, at the behest of automotive clubs, boy scouts handed out flyers to pedestrians in Hartford, Connecticut, instructing them how to cross the street and explaining “jay walking.”

By the 1930s, the issue had mostly been settled, and streets were redefined as a space for drivers. Pedestrians’ movement was tightly restricted to crosswalks, and even then only at the convenience of drivers. One of motordom’s most critical victories was the introduction and eventual acceptance of the concept of jaywalking. Around the time of the Cincinnati ballot measure, auto interests began producing propaganda that advanced the notion of the “jay walker.” In the 1920s, “jay” was a derogatory term, and branding people who crossed the street midblock as jays was a powerful rhetorical slight. “A jay was a dumb hayseed, a hick, a rube,” Norton wrote. “Someone stuck in the nineteenth century.”20

A turning point came in 1924 when US commerce secretary Herbert Hoover, just five years prior to his election as US president, helped convene a National Conference on Street and Highway Safety. The conference was dominated by auto industry groups, and participants were asked to write a set of model traffic regulations to be used in cities across the United States. In the end, they recommended that pedestrian access be limited to crosswalks—a new concept—and, even then, that pedestrians should only be able to cross essentially when there was no traffic.

This recommendation was a dramatic reordering of the transportation hierarchy. When it was released in 1927 with the backing of the US Department of Commerce, many cities adopted it wholesale. By the 1930s, jaywalking laws were ubiquitous.

It is difficult to overstate just how successful the concept of jaywalking was in shifting blame. Like in the case of Raquel Nelson, when a pedestrian is struck by the driver of a car or truck today, the justice system is often shockingly punitive.

Pedestrian advocates like Atlanta’s Sally Flocks, however, are emphatic that jaywalking enforcement does not help keep pedestrians safe—and sometimes it is actively harmful. In 2014, metro Atlanta was ranked the eighth most-dangerous for walkers.21 The big problem for pedestrians in Atlanta is not inattention or misbehavior, said Flocks, but the roads themselves. “The places where pedestrian fatalities are rising is in the mid suburbs,” she said. “Crosswalks are sometimes over a mile and a half apart.”22

What is really needed in Atlanta are safer crossings, better speed management, and continuous sidewalks, Flocks said, but the messaging that federal agencies use for pedestrian safety contributes to their marginalization by blaming them for the problem. “The education for pedestrians is, ‘Cross at crosswalks and wear bright clothing,’” she said. “If you’re saying it was their fault they weren’t in a crosswalk, it takes the burden off the Department of Transportation.”23

Although there is not much evidence that jaywalking enforcement improves safety, some approaches do help pedestrians. For example, evidence shows that environmental factors influence how likely pedestrians are to jaywalk in the first place. In the early 1980s, researchers Jason Leonard and Richard Liotta conducted a series of experiments and found that pedestrians were less likely to jaywalk at intersections that presented the walk signal quickly.24 Other studies have shown that crowded sidewalks, the presence of bus stops, the width of the road, and importantly, the distance to the nearest crosswalk all influence whether a pedestrian will cross mid-block.25

A 2014 study conducted by the Federal Highway Administration was able to use environmental factors—like the presence of a right turn lane or the distance between crosswalks—to predict with 90 percent accuracy whether or not a pedestrian would cross mid-block. The study suggests that adding crosswalks, especially at streets where there are bus stops, is an important way to combat jaywalking.26

Second, there is good evidence that enforcing yielding rules for drivers helps pedestrian safety, as discussed later in the chapter. There is no a snappy term, no “jaywalking” equivalent for drivers who fail to yield to pedestrians when they are required, and perhaps that is why it is not widely recognized as a problem. Nevertheless, failing to yield—jay driving, if you will—is extremely common, and it is dangerous.

Failing to Yield

A 2018 study in Milwaukee found that at noncontrolled crosswalks—crosswalks with no traffic lights or stop signs—drivers were only yielding to pedestrians 16 percent of the time.27 A 2014 Chicago study observed the exact same proportion: 16 percent.28

As bad as baseline yielding rates are for pedestrians, there is evidence that they are worse for people of color. A 2014 study by researchers from the University of Portland and University of Arizona tested racial bias in yielding behavior in Portland, Oregon. Compared with the three white research subjects attempting crossings, black pedestrians waited 32 percent longer to cross and were passed by twice as many cars.29

Nichole Morris, a research psychologist at the University of Minnesota, experienced the high-stakes guessing game facing pedestrians firsthand while conducting an experiment measuring yielding at crosswalks in St. Paul.30 Morris and a team of researchers spent months crossing sixteen crosswalks in St. Paul, Minnesota, in 2017 and 2016. The experiment was designed to test drivers’ adherence with Minnesota law, which requires them to yield to any pedestrian who has lifted at least one foot off the curb to step into the crosswalk, provided that the driver has been given enough distance to stop safely. Dressed in plain clothing, the researchers attempted twenty crossings at each crosswalk twice a week.

When the experiment began, St. Paul had already been making efforts to improve driver yielding to pedestrians. Through a campaign called “Stop for Me,” St. Paul police had been conducting “targeted enforcement” whereby plainclothes officers had posed as pedestrians, pulled over drivers who failed to yield, and issued them warnings.

Despite the police effort, when Morris began her research, the yielding rate was terrible: only about 32 percent of drivers were complying with the law. What was worse is that in about 11 percent of cases, drivers were doing something even more threatening: passing cars that did yield. Passing a driver who has stopped for a crossing pedestrian can be fatal because the stopped car blocks the view of the pedestrian who is moving right into the path of the oncoming passing car.

Conducting this kind of research was frightening, especially at the beginning, said Morris. “I would have these panicky moments where I would say to myself, ‘Is this too dangerous?’” Morris said. “I have to be very honest with anyone working on this study that we are risking our lives to do this work.”31

The goal of Morris’s experiment was to see if driver yielding could be improved by using tricks from the field of human factors psychology. The experiment showed that with the right attention and strategy, it could.

One thing that helped tremendously was a pair of signs. The signs, which looked like regular traffic signs, displayed the yielding rate from the previous week. Each week, Morris and her team updated the signs with the numbers they had recorded. The signs drew on the principles of social norming and implied surveillance to encourage people to yield.

Social norming is meant to apply social pressure to engage in a behavior by suggesting that the majority of people are doing it. The first week Morris and her team posted the sign it read: “Percent of drivers stopping for pedestrians—Last Week: 44%, Record: 44%.”

Over time, however, the strategy worked. The signs got people’s attention and got them talking about the issue, including a huge round of media attention in August 2018. All of a sudden, people all over St. Paul were debating whether 44 percent was a good or a bad yielding rate.

Over the next few weeks, with more enforcement, with social norming, and—finally—with some small changes to the infrastructure, Morris and her team were able to raise the yielding rate dramatically. For the final phase of the experiment, they installed small yellow vertical “Stop for Pedestrians” signs in the middle of the street, within the center line. At the end of the experiment, after months of enforcement, media attention, and various rounds of street-design changes, the pedestrian yielding rate rose to 72 percent, and the number of drivers who were passing yielding drivers—an extremely dangerous maneuver—fell to just 1 percent.32