Every arm can wield a hammer: Defending Perry's veto of Texas texting ban

When Governor Rick Perry announced his vetoes, Grits praised the Governor's decision to kill legislation criminalizing texting while driving. On Tuesday, James Ragland at the Dallas News published a column excoriating Perry for the veto ("Texas goveror's logic for vetoing texting-while-driving bill seems twisted," June 22, behind paywall), declaring that "The 'logic' that Texas Gov. Rick Perry used to veto a bill that would, among other things, prohibit TWD is twisted, if not downright hypocritical," though he granted that "I don’t know if outlawing TWD would prompt Texas drivers to stop cold turkey or merely inspire them to do a better job of hiding their perilous habit."

Setting aside the difficulties of enforcement, Ragland says if Perry supports seatbelt and DWI laws, he has no justification for vetoing this bill. But I measure the issue on a different axis: Criminalizing common behaviors is a slippery slope, and Perry is at least willing to engage in a meaningful debate, unlike Ragland, regarding at what point criminalizing more drivers becomes counterproductive, charging average, law abiding citizens with criminal offenses while diverting police efforts from more serious crime.

Apparently it's come to this in the writing of criminal law, at least according to James Ragland: It's just a good thing to make criminals of non-criminals over any subject you disapprove of even if you don't think doing so will work! Criminalizing new behaviors has become so habit forming, it's the go-to move even (perhaps especially) for liberals. The real danger from the impulse, though, is that creating new crimes or "enhancing" old ones is a purely tactical and thus a bipartisan (really a trans-partisan) approach. You can theoretically criminalize anything you don't like, after all - every arm can wield a hammer. The Wichita Falls Times Record News editorial board chimed in that it was worth passing the law just "in the hopes of saving even one person." The Midland paper called the veto a "mistake."

Seemingly to counter Ragland's opinion column, but mostly reinforcing it, the News followed up by publishing an article today from reporter Erin Mulvaney giving a "both sides of the story" (sort of) account of the topic. My favorite part of the story was this quote from a National Safety Council official:

Dave Teater, a senior director for Transportation Strategic Initiatives for the National Safety Council, said texting and driving is a new threat to public health and safety and that the governor’s decision to veto the legislation was “disastrous.”

“If the state is not willing to say whether it’s right or wrong, then it implies that it is not that dangerous,” he said. “People are crashing and causing fatalities across the country. … If our government can’t be involved in public safety, I don’t know what government is good for.”

A blogger's dream. How much is wrong with that sentiment? If state law is silent on a topic, that "implies that it's not dangerous"! In court the 5th Amendment will protect you, but in the court of public opinion Mr. Teater is willing to convict states on their silence - unless they pass this bill as some sort of loyalty oath. But the proposed solution really isn't one, despite terrible anecdotes about distracted driving and cell phones which have arisen, perplexingly and counterintuitively, accepting prohibitionists' arguments, during a period when traffic deaths are declining.

As for what else is government good for besides public safety? How about "preserving rights"? That's the foundational role of American government to which Ragland and Treater's comments seem oblivious. A LOT of otherwise law abiding people use their cell phones in the car, so the proposal is to criminalize a new segment of average people, expanding the baseline pool of who may be stopped, questioned, arrested, racially profiled, etc.. significantly. 

The bill further eviscerates drivers' remaining 4th amendment rights at traffic stops. Nearly everyone now carries a phone. Criminalizing its use in the car could give officers "reasonable suspicion" at just about every traffic stop. Would it be enough for an officer to say they saw you glancing at your lap when they ask you to get out of the car, pat you down, and search your vehicle? Probably. In fact, given erosion at the Supreme Court regarding Fourth Amendment rights at traffic stops, it's quite reasonable to make a stand here that enough is enough.(I wish the Governor had found his Fourth Amendment backbone a little sooner, in fact, but that's a column for another day.)

And for this sacrifice of liberty, we get no documentable improvement in public safety. Mulvaney did at least mention countervailing research (discussed on Grits when it came out): "A study released last year by the Highway Loss Data Institute examined insurance claims in several states before and after laws were in place banning texting while driving and found that the laws did not result in fewer crashes," wrote Mulvaney, adding that "When the study was released, the institute told The Associated Press the findings 'don’t match what we already know about the risk of phoning and texting while driving.'”

Though the finding is sidestepped in the story as a one-off, I think the result makes perfect sense. Most texting drivers are younger, and young people already are at greatest risk to cause traffic accidents. They're already distracted and if this wasn't distracting them, they'd find something else; there are plenty of distractions out there to be had, after all. Meanwhile, cars are getting safer, hospitals save more lives than ever and the median age in America is rising. In other words, criminal laws have very little to do with the actual reasons traffic deaths are declining, certainly not to such an extent that they deserve such narrow, singular fetishizing as supposedly the only way government influences behavior, particularly at the level of very personal tasks like preventing "distraction."

My own views, then, lie much closer to those expressed by the lone critic of the bill (besides Perry's veto statement) quoted in the story, "Rep Bryan Hughes, R-Mineola, [who] said he voted against the bill because the state already has laws against distracted driving and reckless driving, but a broad prohibition on using cellphones gives police a reason to violate the Fourth Amendment, which forbids unreasonable search and seizure." Bingo! There's that other purpose of government Mr. Teater couldn't locate.

In closing, Mulvaney contacted Grits a couple of days ago to go on the record for this story, but since she didn't quote any of what I sent her, I'll republish it here to close out this entry:

We already have laws governing similar behavior and it's not needed. There are laws against reckless driving already, so on its face it's redundant if the behavior is in any way endangering others.

OTOH, if I read a text at a stoplight I don't think it harms anyone. It's already an area where civil litigation metes out liability quite successfully and criminal law has little to add. Plus studies show similar laws passed in other states simply don't reduce traffic deaths, see here.

Finally, banning everything that could distract people is just not practical or reasonable, and even if the bill became law, the state can't enforce it. Lots of things can distract you when you drive, from roadside advertising to disciplining a kid in the back seat, adjusting the radio, eating, fiddling with GPS, putting on makeup, you name it ... all the stuff people do in their cars. You can't ban it all.

All this bill has going for it is tearful anecdotes and handwringing - the policy arguments all run against it.

See related Grits posts:

• Perry vetoes new crime of texting while driving
• Study: Texting, cell phone bans don't reduce accidents
• Proposed Austin texting ban ignores commuters, reality to raise revenue
• Proposed Austin traffic ordinances hype fear, generate revenue without improving public safety
• Texting ban ignores road dangers that are more common, just as risky