THE NEED TO ‘DO SOMETHING’ MIGHT HAVE UNFORESEEN CONSEQUENCES
We all hate people who text while driving. That guy swerving all over the road because he’s texting his girlfriend, that lady driving 20 in a 45 because she’s trying to find a recipe for crème brûlée on her smartphone – it’s all pretty annoying. (Of course, we know how to text while driving in a safe and sensible way, so we’re not annoyed with ourselves. But let’s leave our hypocrisy out of this.)
And sure: texting while driving is dangerous. People have been killed by texting drivers. It’s impossible to say how many, but “distraction” accounts for well over 3,000 traffic fatalities per year, and it’s safe to assume a healthy proportion of those deaths occurred as a result of people paying more attention to a Facebook status or a story on TheNerve.org than to the road.
So, in June of last year, Gov. Nikki Haley signed legislation making it illegal to “text” while driving. The bill passed with near unanimity; only two House members and two senators voted against it.
Texting while driving is a bad thing, to be sure. But is the law really the best way to address it? Must the answer to every bad thing be to empower government officials – in this case, law enforcement officers – to inflict new penalties?
Driving recklessly is already against the law. The police officer doesn’t need to know whether you were swerving off the road because you were texting your spouse, composing an email, lighting a cigarette, adjusting the dial on the radio, or trying to find that bagel that rolled under the passenger seat some time last week. What matters is that you were veering off the road and endangering cyclists, pedestrians, and other drivers.
Indeed, the texting ban isn’t much different from a hate crime. Assault and battery are already illegal, but if you bludgeon someone because you’re a bigot, you’re given a heavier sentence. Why? Because we think bigotry is really really bad.
And it is. The trouble, however, is that human motivations are hard and sometimes impossible to divine. The law is a blunt instrument, and it’s better at finding out what happened than why it happened. What matters is that someone got beat up – or run down by a car – not whether the perpetrator was a racist or the negligent driver was an iPhone addict.
Hence the new anti-texting law’s comically confusing definitions and stipulations. Just one example:
“Hands-free wireless electronic communication device” means an electronic device, including, but not limited to, a telephone, a personal digital assistant, a text-messaging device, or a computer, which allows a person to wirelessly communicate with another person without holding the device in either hand by utilizing an internal feature or function of the device, an attachment, or an additional device.”
Is it really a different order of culpability to veer onto the sidewalk because you were using a “hands-free wireless electronic communication device” than it is to veer onto the sidewalk because you fell asleep behind the wheel?
Of course, this raises questions about the whole idea of special penalties for driving under the influence. But in cases of intoxicated driving it isn’t hard for the law-enforcement officer to figure out what the reason for the crash was. If the driver can’t walk in a straight line or touch his nose, it’s pretty clear what happened.
With texting, by contrast, how’s an officer supposed to know if you were distracted by your “hands-free wireless electronic communications device”? The new law (and we ought to be glad of this, at least) forbids officers from searching your car or your smartphone for evidence of texting. The officer, in fact, isn’t allowed to “stop a person for a violation . . . except when the officer has probable cause that a violation has occurred based on the officer’s clear and unobstructed view of a person who is using a wireless electronic communication device to compose, send, or read a text-based communication while operating a motor vehicle.” (This could change soon. A company called ComSonics is developing a radar gun that can somehow discern whether the driver is texting or not. State Rep. Bill Taylor, R-Aiken, who voted for the new ban, referred to the new technology on his Facebook page: “Looks like police may get a little help in snagging violators,” he wrote optimistically, as if everyone recognizes the need for more official surveillance of private law-abiding activities.)
Will the new law accomplish its aim? My highly unscientific survey suggests that outlawing texting while driving has so far failed to have a deterrent effect. People are texting behind the wheel as much as they ever were. Maybe that’s because the penalty is minimal: a $25 fine and it isn’t reported to the driver’s auto insurance company or to the DMV.
But here’s the real trouble with a law like this. When it’s found to be ineffective, the penalties will go up – and up – and up. Assuming I’m right and the new law has no effect on “distraction”-related traffic injuries and fatalities, state policymakers, having led the public to believe the new law would stop this form of negligent behavior, will need to respond to public outcries by “strengthening” the law. At first they’ll increase the fine; then maybe they’ll add jail time for a second or third offense. And some day we’ll have licenses revoked and maybe put people in prison because they just couldn’t stop tweeting or texting their friends while trying to negotiate public roads.
Perhaps we shouldn’t respond to every bad thing by passing a new law against it. Perhaps the private sector, left alone, would do a better job of discouraging behavior everyone finds culpable. For that to happen, though, we’d need to prevent politicians from seizing the moral authority to “do something” about it.