Should we keep people from being able to choose to break the law? Associate Professor Michael Rich poses the question in a newspaper column.
Associate Professor Michael Rich *****
The following column was published recently by the Roanoke (Va.) Times, the (Greensboro, N.C.) News & Record, the Winston-Salem Journal, and the (Burlington, N.C.) Times-News via the Elon University Writers Syndicate.
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When preventing crime stunts moral growth
By Michael Rich - mrich2@elon.edu
If you’re convicted of drunk driving in the United States, should you want to keep driving, a judge sometimes will require that you install an ignition interlock system in your car. Provide a breath sample and the system determines whether your blood is free of alcohol.
While inconvenient for the driver, the sanction makes sense. Drunk drivers are often recidivists. Mothers Against Drunk Driving estimates that the average drunk driver climbs behind the wheel impaired 80 times before he or she is caught. Such convictions, with their accompanying due process, provides a formal indication of the person’s dangerousness that justifies an imposition on liberty.
And ignition interlock programs are effective, reducing repeat drunk driving arrests by two-thirds.
Now, the National Highway Traffic Safety Administration has teamed with car manufacturers to develop ignition interlock technology that could be included in every new vehicle. This technology, called the Driver Alcohol Detection System for Safety, or “DADSS” for short, measures a driver’s blood alcohol level. If a driver’s blood alcohol level exceeds the legal limit, the DADSS prevents the car from starting.
A test vehicle incorporating the DADSS is expected within two years, and the technology may be available in all vehicles within a decade. Its appeal is intuitive: after all, who is in favor of drunk driving and the thousands of deaths and injuries it causes each year? Yet the DADSS represents a potentially troubling sea change in how we seek to prevent crime.
Federal, state and local governments engaged in a public campaign over the last 30 years to convince people that drunk driving is wrong, that those who drive while intoxicated will be caught, and that the punishments will be severe. And, yes, we may prospectively limit the freedom of the most dangerous potential criminals, which is where the current use of ignition interlocks comes in.
The DADSS program is different. It does not seek to convince people that they should obey the law; rather, it takes away the choice.
The DADSS is only the most visible piece of a trend toward the “perfect prevention” of crime, by which crime is made impossible rather than merely a bad idea. The federal government’s Intelligent Transportation Systems program could allow a roadside computer to instruct a vehicle not to allow a driver to speed, run a red light, or even hit another vehicle. By criminalizing the development of copyright-avoiding technologies, the Digital Millennium Copyright Act keeps the average person from illegally sharing some copyrighted materials such as video games.
The DADSS and other perfect prevention technology force us to ask, even if we can make a crime impossible, should we? At first blush, the answer seems obvious. By criminalizing conduct, we signal that the conduct is either so wrong or so harmful that no one should engage in it. Therefore, preventing every instance of that conduct would be good, right?
Maybe. There are many kinds of conduct that may technically be criminal but that we may not all agree should be eradicated. Every city dweller jaywalks sometimes. Millions “share” music in violation of copyright law. The heavy hand of perfect prevention may not be an appropriate way to deal with such relatively minor criminal conduct.
Moreover, perfect prevention can operate in the shadows, without people ever knowing that they have been prevented from engaging in criminal conduct. This is troubling, because it treats us like children. Part of adulthood, and citizenship, is making moral decision, and our right and wrong choices contribute to our personhood.
By removing the possibility of making wrong choices, perfect prevention stunts that moral growth.
One lesson for the development of the DADSS is therefore clear. Its operation must be transparent, so that even in the absence of punishment for drunk driving we can learn that what conduct society views as wrong.
The underlying question of whether drunk driving is the sort of criminal conduct we want to prevent is more difficult, because our laws conflict with our actions. Drunk driving is a strict liability offense: you are guilty if you drive with a certain blood alcohol level, even if you innocently had no idea that you were intoxicated. This suggests strong moral condemnation.
Yet the Centers for Disease Control estimate that Americans drive drunk more than 100 million times each year. So which is it? Is drunk driving so bad that it is always wrong, or is it just another example of the sort of risky conduct that is the price of freedom?
In a few short years, the DADSS may force us to answer that question. And it is likely the first of many such difficult choices we will have to make as perfect prevention technologies compel us to assess the importance of our freedom to sometimes make the wrong choice, especially when that choice can have awful consequences.
Michael Rich is an associate professor at the Elon University School of Law.
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Elon University faculty with an interest in sharing their expertise with wider audiences are encouraged to contact Eric Townsend (etownsend4@elon.edu) in the Office of University Communications should they like assistance with prospective newspaper op/ed submissions.
Viewpoints shared by this syndicate are those of the author and not of Elon University.
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by Eric Townsend, Staff Last Updated - 1/2/2013
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