Mimesis Law
27 September 2020

Hammers, Nails, and Cell Phones

January 12, 2017 (Fault Lines) — There are two versions of a joke that goes:

In America, there are two political parties, the Stupid Party and the Evil Party. When the Stupid Party is in power, it passes stupid laws. When the Evil Party is in power, it passes evil laws. Occasionally, though, the parties come together to pass a law that is both stupid and evil. This is referred to as bipartisanship.[1]

In Washington State, state representative Jessyn Farrell, a Seattle Democrat, and state senator Ann Rivers, a La Center Republican, have introduced one hell of a bipartisan bill, which proposes to change Washington’s distracted driving law by making it illegal not merely to text while driving, but to even touch your phone while in your car.

“We need to stigmatize driving while under the influence of electronics”, said Farrell. “It’s about making a cultural shift, and I think we need to see how a first step like this bill actually changes behavior.”

Under her proposal, the fines would also be increased from $124 to $350, and the second violation would be reported to your insurance company.

Using the law to enact “cultural change” is social engineering at its worst. They’ve titled their new bill “The Driving Under The Influence of Electronics Act,” in a not very subtle appeal to people’s antipathy against drunk drivers. The bill carries all the usual signifiers of bad laws based on bad public policy.

There’s the Grieving Family:

Lawmakers will likely hear from the mother of Cody Meyer, a 23-year-old construction flagger who was hit last December outside Issaquah by a driver looking at a smartphone, charging documents say. Meyer died in April.

There’s the Avalanche of Statistics:

Researchers have since proven that looking away from the road a few seconds and the brain overload of listening or multitasking are as dangerous as driving drunk.

Distracted driving caused 3,477 traffic deaths in the U.S. in 2015, a 9 percent increase from the year before, and “a deadly epidemic,” according to the National Safety Council (NSC). In the state distracted-driving deaths jumped from 130 in 2014 to 171 in 2015, nearly a third of the overall 556 traffic fatalities in 2016.

And most importantly, there’s the Completely Unreachable Goal:

“If we’re going to achieve, or get even close to the goal of zero fatalities, we’re going to have to address it,” said [Rep. Ed. Orcutt].[2]

This bill is yet another example of the hammer and nails problem that permeates law in general and criminal law in particular. Traffic accidents happen. They are a natural consequence of allowing people to strap themselves into pieces of heavy machinery weighing a ton or two and go zipping around roads with thousands or millions of other people who are doing the same thing. People will get distracted, and some of them will crash.

The problem isn’t with distracted driving laws, per se. The problem is with the logic that begins with the premise that traffic accidents can be completely eliminated and that the way to do that is to punish people more harshly for behavior that is pretty innocuous. Under this bill, drivers could be punished for checking their Google Maps app to make sure they’re going the right way. To use the mirror image of the proponent’s scare tactics: under this bill, a driver could be punished for checking his phone for directions to the hospital while his pregnant wife was in premature labor.

Does anyone really think that no one is ever going to touch their phones while driving, ever again? Does anyone really think that the way to make that happen is to raise the fine for doing so from $124 to $350? Actually taking effective action to reduce fatalities would require much more nuanced thought and action than the ritualistic deployment of the criminal law. But this allows the sponsors of the bill to make it look they are DOING SOMETHING.

But hey, it could be worse:

A tougher crackdown is being proposed in neighboring Oregon.

Senate President Peter Courtney, D-Salem, hopes to treat distraction like driving drunk. Nonemergency use of a handheld device would trigger at least a $1,000 fine, or $1,500 on the second offense. A third strike would be a felony punishable by up to a year in prison. If children are in the car, the offending driver could be fined $10,000.

Changing songs on Spotify? Trying to find a restaurant on Yelp? Yeah, that definitely seems like it’s worth locking people up over.

[1] There are two versions of the joke because the jokester’s party is invariably the Stupid Party and the opposite party is the Evil Party. Apparently our collective unconscious feels that on the whole, it’s better to be stupid than evil. This is probably a good thing.

[2] To be fair, Orcutt opposes the bill. Nevertheless, he’s bought into the idea that completely eliminating traffic fatalities is a realistic goal that’s worth using the coercive power of the state to achieve.

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  • Richard Kopf
    13 January 2017 at 7:55 am - Reply


    I have a counter proposal. It is better than the half-measures proposed in Oregon and Washington.

    Put every resident of Oregon and Washington in prison as a preventative measure. Problem solved.

    Insofar as criminal intent is concerned, each such person is certainly deserving as a matter of general principles. After all, look where each of them intentionally decided to reside. Res ipsa loquitur.

    Plus it would be good for our environment. Never forget Earth Mother.

    All the best.