Sunday, January 16, 2011

Are we heading to 'pre-crime'? Are we already there?

On Friday, when I filled in for Brian Wilson on NewsTalk 1370 WSPD, we discussed a recent article by Radley Balko, a senior editor at Reason Magazine, about abolishing drunk driving laws.

No - he doesn't think we don't need a law to address what happens when people drive under the influence. He just believes - for logical and common sense reasons which he identifies in the article - that a single law, 'driving while ability impaired,' would address the need and give law enforcement a better tool to address behavior while protecting our liberties.

In the article he writes:

If our ultimate goals are to reduce driver impairment and maximize highway safety, we should be punishing reckless driving. It shouldn't matter if it's caused by alcohol, sleep deprivation, prescription medication, text messaging, or road rage. If lawmakers want to stick it to dangerous drivers who threaten everyone else on the road, they can dial up the civil and criminal liability for reckless driving, especially in cases that result in injury or property damage.

Doing away with the specific charge of drunk driving sounds radical at first blush, but it would put the focus back on impairment, where it belongs. It might repair some of the civil-liberties damage done by the invasive powers the government says it needs to catch and convict drunk drivers. If the offense were reckless driving rather than drunk driving, for example, repeated swerving over the median line would be enough to justify the charge. There would be no need for a cop to jam a needle in your arm alongside a busy highway.

Scrapping the DWI offense in favor of better enforcement of reckless driving laws would also bring some logical consistency to our laws, which treat a driver with a BAC of 0.08 much more harshly than, say, a driver distracted by his kids or a cell phone call, despite similar levels of impairment. The punishable act should be violating road rules or causing an accident, not the factors that led to those offenses.

And I believe he's right. But then I came across this article, "Drunk Driving and 'Pre-Crime'?" by Eric Peters on, and the urgency to examine such laws becomes even more apparent.

Peters writes:

There was a time, long ago, when a driver had to actually cause an accident – or at least, do something tangible that gave evidence of actually impaired driving, such as weaving over the double yellow or limping along at suspiciously slow speed. This was the probable cause needed by a cop to pull the suspect over.

Fair enough.

Then in the ’90s we got (courtesy of Clintigula) the criminalization of drinking – irrespective of our actual driving. The mere presence of trace amounts of alcohol in one’s blood became sufficient to arrest a person for “drunk” driving – even though all the person did was run afoul of a notoriously unreliable Breathalyzer machine.

It did not matter that people process alcohol differently; that some people are much better drivers even with a little booze in their systems than others are completely sober. And more besides.


Most people now equate having “x” amount of alcohol in your system – in ever-declining percentages – with “drunk driving.” It is an epic victory of demagoguery and propaganda.

And it is also by definition an example of pre-crime. You haven’t done anything – but you’re in trouble because of what you might do.

Peters and Balko both bemoan similar situations. Balko talks about check points where every motorist is stopped and checked to see if they've been consuming alcohol - and the willing acceptance by many that this infringement upon their liberties is somehow okay if it keeps a 'drunk' driver off the road. He also examines the way your blood alcohol content (BAC) can vary both over time and individual to individual, noting that an arbitrary number has no relevance whatsoever to your ability to drive.

Peters sarcastically criticizes the way the law treats someone who is drunk, but not even driving:

Consider: You are liable to arrest for “drunk driving” in America today even if you aren’t driving at all. You merely have to be in your car – even if you’re in the passenger seat and the car is parked. People who have had one too many and decided to sleep it off in their car have been arrested for DWI just the same as if they had been straddling the double yellow at 65 MPH with a gin and tonic in one hand and their left leg hanging out the window.

The courts have said that drinking “x” amount of alcohol not only defines “impairment” – it also amounts to intent to drive drunk, whether you’re driving or not. And that intent – imputed, perceived, ginned-up out of nothingness – is what matters

People often criticize those who claim the 'slippery slope.' But this is one and we need to be aware of the implications.

As Balko explains, it's no longer 'drunk driving' - it's 'drinking and driving,' changing the issue to the act, not the impairment. And because of the issues with blood tests for BAC, some are even suggesting that officers making traffic stops be allowed to forcibly take your blood on the side of the road.

Peters shows how the intrusion into our liberties is already somewhat accepted by the public:

Gun laws – and the TSA – already operate on this principle.

You have no record of criminal misconduct or mental illness. You’re a taxpayer, a responsible citizen. Yet in several states (and of course, Washington, D.C.) you’re assumed to have criminal intent, and thus, denied the right to own a firearm. If you possess one anyway – even if you have done nothing with it to harm or even threaten to harm another person – then you’re subject to being cuffed and stuffed just the same as if you had actually used it to threaten or harm others.

Pre-crime again.

The TSA subjects people at random – and en masse – to rough and humiliating searches, including invasive physical pat downs, just like cops do to felony suspects. Not because of anything they’ve actually done or even hinted they may do but only because the TSA apes impute “terrorist intent” to anyone who desires to travel by commercial airplane.

Ipso facto.

Just like having a drink before you drive makes you a “drunk” driver – no matter how good your actual driving happens to be.

We’ve upended perhaps the most basic concept of Western jurisprudence – that for there to be a crime, or wrongdoing, there must be an actual criminal act, or wrongdoing.

Peters takes it to the next step - or perhaps I should say he slips a bit further down the slope - by speculating what impact such an approach might have on political speech, in light of the recent shootings in Arizona.

Soon, what will matter is what you think – and more, what others (those in power) think your thoughts might lead to.

To give voice to a sentiment such as “the government is corrupt and something needs to done,” will amount to evidence of advocating violence – perhaps even of committing violence – much as a motorist who has consumed an arbitrary amount of alcohol is ipso facto a drunk driver.

And he's probably correct. We've taken the first steps toward that with 'hate crimes' where you are presumed more guilty of, say, murder if you can be proven to have 'hated' something about your victim. Or rather - hated something defined by government about your victim - like race, gender or sexual orientation. That you killed your neighbor because you hated that he wouldn't control his barking dog is somehow not as terrible a crime as if you killed him because he's gay.

Already - what you were thinking when taking a life is of more importance than actually taking a life.

In America, we've had discussion of banning 'hate speech' though so far, our First Amendment has been ruled to protect such comments. But other countries, many used by our politicians as examples we should emulate, do have laws against such things.

So is it too much to think that laws criminalizing such thoughts and speech - a 'pre-crime' sort of approach - are coming our way? I shudder to think....

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