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September 6, 2010

Could and should vehicle crash deaths and costs be deterred by tougher punishments?

Crash costsRegular readers know that, ever the utilitarian punishment fan, I have long thought that the many significant harms that result from drunk driving could and should justify a tougher criminal justice approach to this seemingly deterrable and very costly crime (see some of the posts linked below).  Now, this notable new article in my local Columbus Dispatch, which is headlined "CDC: Beef up traffic laws," has me wondering if we should get tougher on all driving crimes, not just drunk driving. Here is the factual background concerning some of the (very preventable?) costs that may result from our unwillingness to be tough enough with out driving rules and regulations:

Traffic deaths and injuries are a preventable scourge that cost the nation about $99 billion a year in medical bills and lost productivity, according to the U.S. Centers for Disease Control and Prevention.

That's about $500 for each licensed driver in America, according to a study by the CDC's National Center for Injury Prevention and Control.  Researchers tallied the costs nationally using hospital, insurance and other data from 2005, when there were 3.7 million deaths and injuries from crashes.

They hope the cost information will persuade states and communities to take action to prevent traffic crashes, said Rebecca Naumann, a CDC epidemiologist and lead researcher on the study. Action would include requiring motorcycle riders to wear helmets, allowing police to pull drivers over simply if they're not wearing a seat belt and checking for drunken driving at checkpoints....

Ohio has put in place several strategies to reduce traffic deaths and injuries that the CDC mentioned in its study, including graduated driver's licensing for teens.  Deaths and injuries from crashes among 15- to 19-year-olds cost $11.2 billion, the CDC study found.... 

There's also political resistance to motorcycle helmet laws, red-light cameras and primary seat-belt laws, which allow an officer to stop a driver just for not buckling up. "People clamor for drugs that will treat serious diseases, but with motor vehicle crashes, there's often resistance," [Russ] Rader [of the Insurance Institute of Highway Safety] said. "There is reluctance on the part of politicians to tackle some of these things because of the vocal opponents they would have to cross to get it accomplished."

One thing that's not mentioned in the CDC study is bans on texting or cell-phone use.  The insurance institute's studies of states with and without bans shows no evidence that they cut crashes, Rader said.  "We want to know whether the laws being passed are reducing crashes, and the cell-phone laws are not doing that," he said.

Critically, I do not want or mean to suggest that imprisonment is the ideal or even a sound way to toughen punishment for risky driving behaviors.  Supersized fines (perhaps in the day-fine model used in much of Europe) or shaming sanctions or community service obligations could well be much more effective in encouraging the average driver to stay sober, slow down, buckle up and save all of us $99 billion that crashes cost all of us each year.

As my 1L students discover each year, I think driving laws and punishments provide an effective window into whether one is drawn to more utilitarian or more retributivist approaches to sentencing law and policy.  The costs stressed by the CBC suggest that we could improve society greatly by being (creatively) tougher on those who engage in what we know to be risky driving behaviors.  But to achieve such a utilitarian bang for our buck, we will surely risk punishing some (many?) drivers more than some (many?) persons might think these drivers deserve. 

Personally, in this particular (and I think particularly important) context, I would generally rather run the risk of over-punishment of some risky drivers (including myself) than run the risk of more risky drivers on the roads threatening my friends and family.  But, as suggested above, if/when the form of "over -punishment" in this setting were to be significant jail/prison time (which is itself economically and socially costly), the utilitarian (and my normative) calculus could come out differently.

Some related posts on sentencing drunk drivers:

UPDATE on 9/7:  Though the discussion in the comments to this post have been going hot and heavy, I figured this amusing local news story from Ohio could give it some additional juice: "Police: Driver distracted by sex toy."  Here are the essentials:

An Elmwood Place police officer who stopped a car because it had illegally tinted windows received a bit of a shock when he looked inside.

Officer Ross Gilbert said the driver, Colondra Hamilton, a 36-year-old Downtown resident, was sitting with her pants unzipped and a sex toy in her lap.  He said Hamilton told him she was using the toy while watching a sex video on a laptop computer that a passenger in the front seat held up so she could see it.

Gilbert charged her with "driving with inappropriate alertness" and having illegal tinted windows, according to the traffic ticket.

September 6, 2010 at 10:20 AM | Permalink


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Crashes have been cut by a third. This coincided with the reduction in the crime rate, subsequent to sentencing guidelines and the loss of judge discretion. These two benefits may be connected by the incapacitation of a million impulsive, selfish, aggressive criminals. When the benefit of the high imprisonment rate is calculated, prevention of crashes should be included.

Please, recall;

That no chain of causation exists for catastrophes. Rather "factors" cluster in time and space and a crash follows. There may be twelve for any catastrophe. The prevention of only one may prevent the entire crash.

The Eighth Amendment prohibits excessive fines, and the Fourteenth prohibits differential treatment of defendants by their status.

There may be no law school course called, Rules of the Road, anywhere, despite the impact of this law subject on the majority of the population. This absence needs explanation and correction.

Most of the big drop in crashes per billion miles comes from technology. So push technology. Make cars smarter, more rigid, physically safer. Technology includes advances in trauma care learned here and in Iraq. Trauma care in specialized trauma centers will end soon unless the medmal lawyer is stopped. Princess Diana could have survived her crash in the worse slum of the US, but was killed by Commie Care of France. ObamaCare threatens trauma care. Protect this American gem.

If you stop all cars in the afternoon, 10% of drivers may be legally intoxicated. Most drive too slowly, a reliable hallmark of drunk driving. Most are not dangerous.

The aggressive drivers that roll over, leave the road, have single car crashes may be guess who. Correct. The good client of the lawyer, the criminal. Protected. Loose. Not controlled by anyone. Criminal incapacitation may have an unintended benefit of reducing crashes.

Draconian fines and slavery like community service will end up targeting regular people. They will learn to hate the criminal law after being treated unfairly. Most do not cause damage driving 90 on a desert highway to a destination 8 hours away. They should be left alone.

Allow parking and napping to the side of all toll booths. Nobody will sleep at an isolated rest stop to risk having their throat slit by roving serial killers.

Distracted driving is as dangerous as drunk driving, true. But drunk driving may not be that dangerous. If someone is doing something while driving, and no damage takes place, save slowing traffic, leave the folks alone. For those causing damage, then enhance the penalty for any distracted driving, not just cell phone or texting use, but also make up application, oral sex, and eating a sandwich. What about listening to controversial, and anger provoking radio programs? I don't know. I do know we should leave alone people who cause no harm.

Reduce pointless transportation, total miles traveled. Do so by laws mandating the treatment of work at home the same as work at work.

In a naturalistic experiment, a town that removed its traffic lights, and forced drivers to defer to each other at intersections, saw a reduction in crashes. Review the regulations for rigorous proof they help safety and do not hurt safety. It is counter-intuitive that removal of traffic lights would reduce crashes, but true.


Whatever is done to enhance penalties may end up as a crime itself, a revenue generator, abusing legal powers of localities. Every legal innovation should be treated as an experiment, have an expiration date, and spend 5% of the budget on assessment of safety and effectiveness. OK. Install a red light camera. However, count the crashes before and after. If there is little difference, remove the cameras after a year.

Posted by: Supremacy Claus | Sep 6, 2010 12:17:18 PM

Where the driver is acting with willful and dangerous disregard for safety, then, sure, increase the punishment. But the vast bulk of driving offenses are not like that.

Most people recognize a difference between those we ordinarily think of as criminals and speeders. Criminals act with a bad heart. They either strongarm others, using violence or the threat of violence; or they're dishonest, cheating and deceiving or taking advantage of other people's weakness, immaturity or gullibility to enrich themselves. They're doing stuff you know is wrong by the time you're 12 (or before).

Speeding and most other traffic offenses do not involve a bad heart. The law should not, and for the most part does not, react to them as if they did.

If the government wants to raise money, fine. Let the liberals run on a platform of higher taxes and see where it gets them. But just to jack up fines on the majority of driving offenses is more of the hair-shirted nanny state using its power to harrass and burden citizens no realistic person would take to be criminals.

Utilitarianism has its legitimate uses. To increase criminal punishment on a class as relatively unthreatening as twelve-over-the-limit drivers is not one of them.

Posted by: Bill Otis | Sep 6, 2010 2:21:23 PM

I tend to agree with Supremacy Claus above. Revocation of licenses for extended periods can be as effective as incarceration. I am baffled by how easy it is for a drunk to get behind the wheel again if he has the cash.

Posted by: Jardinero1 | Sep 6, 2010 3:49:52 PM

Bill, would you apply the same logic to those who grow marijuana to enjoy for themselves and perhaps other moderate users? Gosh knows the Framers did not view tobacco farmers who grew and marketed a plant to smoke as possessing a bad heart.

Conversely, do you consider those who peddle alcohol and games of chance to enrich themselves from others' weaknesses and additive behavior to be in the criminal class? Less than 100 years ago, a majority of Americans thought those who drank intoxicating spirit are filled with a bad heart, and I sense many religious persons still see forms of gambling to be wicked. In your intriguing taxonomy of bad hearted behavior, are the wealthy CEOs of beer and casino corporations in the criminal category or the speeder category?

Given that 40,000 innocent people die on the highways every year, dangerous driving hardly seems to me to be non-threatening. Indeed, dangerous driving seems far more threatening to me and my kids than the local stoners and bookies. Moreover, as you know well, the DP Abolitionists and Anti-Abortionists and Environmentalists and those at PETA (not to mention the Taliban and Wickens and Scientologists and Mormons) all have quite distinct visions of who has a "bad heart" and who is acting for a higher purpose.

I look forward to our coming debate over drug legalization in Ohio, because your eagerness here to give a relative pass to certain dangerous law-breakers makes me wonder whether you really care about law and order and achieving a safer society or instead are mostly eager to ensure that the behaviors you disdain are subject to big punishment by big government while those behaviors you enjoy escape serious criminal justice scrutiny.

Posted by: Doug B. | Sep 6, 2010 8:00:27 PM

CDC = mommy-state, the CDC would reimpose prohibition in a minuite. Quit coddling everyone because someone makes a mistake. You want: no seatbelt go to jail, even though the person harmed is the person who refuses to wear the seabelt.
Everytime I am driving down a Columbus, Ohio street I see a cop looking at their cruiser's computer instead of the road -- who is at fault? -- a cop can multi-taks better than the average citizen -- BS. The cops shouldn't engage in distracted driver activity and neither should the rest of us.

When it is all said and done negligence should not be the mens rea for crime. That means the penalties should remain civil and not pass into the criminal. Get with it Doug or the moment you are traveling near the law school on Twelfth between College and High) and some asshole student darts outs (for the 4000th time that day) and you hit him, you will be labled a criminal. How's that for "ensure[ing] that the behaviors you disdain are subject to big punishment by big government. Who is the criminal, you or the student? Or maybe neither.

Posted by: k | Sep 6, 2010 10:05:04 PM

Doug --

Three times in your post you say that I want to go relatively easy on "dangerous" persons and behaviors.

What this means is that you need to go back to read what I said, instead of what your eyes seemingly have deceived you into thinking that I said. What I actually wrote (bold letters added) was: "Where the driver is acting with willful AND DANGEROUS disregard for safety, then, sure, increase the punishment. But the vast bulk of driving offenses are not like that."

Yes, well, moving right along......

You also suggest that I want to give a "relative pass to certain dangerous [there's that word again!!] law-breakers [which] makes me wonder whether you really care about law and order and achieving a safer society..."

Well let's see. One of us has filed briefs in behalf of serious and unquestionably dangerous if not vicious criminals, including I believe killers, and one of us spent a whole bunch of years filing briefs against them. I'll let the readers guess who is who.

I'll also be looking forward to the details of your argument that if we just had more people doing drugs -- the certain result of legalization -- we'll have a "safer society."

But I digress. The main point of our disagreement is that I think a normal citizen by-and-large can perfectly well discern, in the context of our present criminal law, when a person is acting with a bad heart and when he isn't. The existence of Wiccans, Druids, Scientologists, Democrats who believe George Bush plotted 9-11 and other such types do not dissuade me one bit in this belief. Exotic relativism of that sort goes over big in law school hypos, sure (see there, you have the home court advantage). But in the real world, not to mention the criminal courtroom, it's all too clear who's acting with malice and who ain't. Indeed, I'll just betcha the Berman offspring get regular (and quite good) lessons on the difference between acting in good faith and acting otherwise, and the importance of assessing one's own behavior AND the behavior of others through a prism that makes the distinction clear.

P.S. "Gosh knows the Framers did not view tobacco farmers who grew and marketed a plant to smoke as possessing a bad heart."

Of course they didn't know a whole lot about the biochemistry of cancer either, but again I digress. The point here is that I'm thrilled to see that you understand the authority of the Original Understanding. I'll be looking forward to your insights on what Original Understanding tells us about the constitutional status of, say, gay marriage.

Posted by: Bill Otis | Sep 6, 2010 10:18:18 PM

Because I love both of you in an e-way, I wonder if I can get a consensus on this. Both of you are slick and stealthy in your ad hominem remarks, but ad hominem remarks still show frustration in the traverse, if you know what I mean.

1) Law schools should offer an elective, if not a core subject covered on the bar exam, Rules of the Road. It is the single most likely subject to affect the most people, namely every person on the road or who has to go out of the house. If harm reduction is an aim of the rule of law, this is a big one, with 40,000 deaths and millions of injuries every year.

2) How about another point for consensus? Incapacitate a few more criminals and prevent not just a murder, but two fatal car crashes for each murder prevented. Leave others alone, including the 10% of drivers drunk at any one time, who are driving too slowly, not aggressively.

Posted by: Supremacy Claus | Sep 6, 2010 11:29:44 PM

Jardinero: Outside of big cities, the car is the sole mode of transportation in the US. Taking the license means no shopping, no job, basically house arrest. Is that OK, once you know what it means to most people in the US?

Posted by: Supremacy Claus | Sep 6, 2010 11:34:44 PM

Bill, your comments again suggest you demand that behavior be WILLFUL AND dangerous, and that prompts my concern that you do not want the criminal law focused on dangerous behaviors that ARE NOT ALSO willful. That's fine -- indeed, many folks believe that tort law and regulatory law is sufficient to deal with dangerous non-willful behavior -- but I want to be sure that is the heart of your view of the criminal law.

If that is your view, I do not quite understand your apparent support for pot prohibition or most aspects of the drug war. The chief justification for prohibition and severe sentences seems to be the danger posed by scheduled substances, not the "willfulness" or "malice" or "bad heart" of the drug user.

Relatedly, you have not explained whether you view those who profit from peddling alcohol and "gaming" are both WILLFUL AND dangerous. I do not think the many churches that have long preached the wickedness of spirits and gambling think they are exotic relativists.

The essential question is simple and very important --- do you think dangerous behavior that lacks malice should be subject to criminal laws and significant punishment? If you say no, then I will be especially interested to hear your justification for many aspects of the current war on drugs.

Posted by: Doug B. | Sep 6, 2010 11:35:45 PM

The mens rea is from the analysis of mortal sin, from a specific church and totally unacceptable in a secular nation. Its assessment is a function of God when the sinner reaches heaven, and the reading of minds is a supernatural power. All are prohibited by the Establishment Clause.

I was asked if the mens rea is eliminated, what is a crime? All crime should be strict liability, with sentencing done by executive branch experts, and based on the person's past dangerousness, yes, assessed extrajudicially, but professionally. These experts should be liable to malpractice claims by the criminal for deviant or careless sentencing. They should also be liable to claims by subsequent crime victims for coddling the criminal and allowing them out.

Posted by: Supremacy Claus | Sep 7, 2010 12:00:17 AM

Doug --

"The essential question is simple and very important --- do you think dangerous behavior that lacks malice should be subject to criminal laws and significant punishment?"

You betcha. See United States v. Fleming, available here: http://ftp.resource.org/courts.gov/c/F2/739/739.F2d.945.84-5045.html. (Brought to you by the Eastern District of Virginia, I'm proud to say).

You know that I'm a fairly conventional thinker. I believe in the doctrine of criminal negligence, as almost everyone does. If you don't give a hoot about the danger you cause, that carefree attitude stands in the shoes of malice. It can go beyond mere negligence to recklessness or, as in Fleming, wanton disregard, in which case you are morally (and legally) culpable, and properly so in my view.

Mr. Fleming didn't set out that day to kill anyone, and for all I know was a sweet-tempered person. But off to jail he went anyway, and I have no regrets. Adults simply must care about and accept responsibility for the consequences of what they do. It is on that fundamental precept that the Excuse Factory and I part company.

"Relatedly, you have not explained whether you view those who profit from peddling alcohol and "gaming" are both WILLFUL AND dangerous."

Peddling alcohol knowing that there's a realistic likelihood of a really bad outcome most certainly is willful and dangerous - thus the law against bartenders selling booze to customers they know or ought to know are already drunk.

As to gambling, I really haven't thought it through. I'm pretty sure a casino owner who continues to admit a person he knows is addicted to gambling -- and is ruining his life by continuing to do it -- is doing something immoral. Whether it is or should be illegal, I don't know. The argument that it shouldn't be is that at some point (a point at which reasonable minds differ), a person must take responsibility for his own behavior and can't blame the source of temptation. When responsibility becomes too diffuse and uncertain, the law loses its force.

On the other hand, there is the case of the addict -- the case that drug legalizers simply will not take seriously. There are people out there who cannot control themselves. Addiction will kill them; it happens all the time, and government "regulation" is a proven loser. Addiction is also dynamic; no one starts off addicted. The more drugs become available, regulated or not, the more drug useage you're going to have, and the more drug useage you have, the more damaged (and ended) lives you're going to have. I wonder if you would dispute that.

The question of where to balance paternalism vs. liberty is unsettled (that's why were having our debate on the 14th). Legalizers themselves are all over the place. Some say dope but nothing else; some say dope and cocaine but nothing else; some say that NO MATTER THE SUBSTANCE, what you put in your own body is your own business. Some want recreational use and some want only medicinal use.

As I say, if it were all obvious, you and I wouldn't be having a debate, and the country wouldn't be having its own debate. But I am reasonably sure that making dangerous and unhealthy things MORE available, and more used, by the signal that legalization would send, is not where I want the country to be headed.

Posted by: Bill Otis | Sep 7, 2010 12:26:51 AM

SC --

Someone should teach Rules of the Road, but I don't think law school is the place.

I have been driving for more than 40 years and have never had an accident. I am, however, aware of the hazards, as my brother was killed as a teenager in an automobile wreck.

Posted by: Bill Otis | Sep 7, 2010 12:33:59 AM

Supremacy, They can get a ride with a friend or family member or walk.

Posted by: Jardinero1 | Sep 7, 2010 8:18:08 AM

Sorry, but if you don't think there should be tougher penalties for driving crimes, you haven't been driving lately. People are downright dangerous when they hit the road. I've seen people cross multiple lanes of traffic at high speeding, just to get force their cara in a few cars ahead of where they were.

And I disagree with the idea that this is all due to a unique combination of events, like some web of chaos theory, that results in a crash. The vast majority, in the 90+ percent range, of crashes are avoidable if both people are following good safe driving practices. Unfortunately, inattention, excessive speed, and dangerous maneuvers are the hallmark of our American roads. Isn't it great that your odds of dying from a vehicle fatality is second only to your odds of dying from cancer, according to the National Safety Commission?

Posted by: Bill B. | Sep 7, 2010 10:35:22 AM

Bill: This is not any gotcha. I don't do that. However, you are making this point, unintentionally. Those aggressive, crazy drivers changing lanes at 90 mph did not crash. Why? Their reckless driving is not enough to cause a crash. Not enough factors came together. The law must be modest and understand that it is but one factor. And policy makers must address all factors. If you added a little rain, a bald, bald tire popping, those folks may have left the highway, gone airborne. The idea of the chain of causation is yet another Aristotelian/Scholasticist superstition. Punishment is not likely to deter the people you saw, because they are already ignoring the elevated chance of death.

Whatever the policy, it should be tested. If it does not result in fewer crashes, it should be repealed, and ineffective regulations should not continue to oppress.

Posted by: Supremacy Claus | Sep 7, 2010 12:16:03 PM

This factor cluster model has validation. It is what made air crashes go from a very low risk, to an extremely low risk. If you want any system to do the same, the FAA has pointed the way.

Posted by: Supremacy Claus | Sep 7, 2010 2:37:01 PM

Color of cars a strong factor in crashes.


Posted by: Supremacy Claus | Sep 9, 2010 12:30:16 AM

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