Drunk Driving--Posner's Comment

This topic could be thought a continuation of our last week's topic, the trans fat ban in New York City. We are again dealing with safety regulation. The case for punishing drunk drivers may seem clearer than the case for banning trans fats in restaurant meals because the externality is more pronounced and consumer competence is not in issue, but the appearance is deceptive. Becker's proposal for heavier penalties for drunk driving could be criticized as paternalistic, because it regulates an input rather than an output. If there are 1.4 million annual arrests for drunk driving, and if we assume realistically that this is only a fraction of the actual incidents of drunk driving, yet only 2,000 innocent people are killed by drunk drivers, then it follows that most drunk driving is harmless. Why then punish it with arrests and severe penalties? Why not just punish those drunk drivers who cause deaths or injuries to nonpassengers? In fact we do punish such drivers, under such rubrics as reckless homicide (if the victim dies) or reckless infliction of bodily injury. And the punishments are severe. Why punish the 99+ percent of drunk driving that is harmless? Indeed, if the penalties for reckless homicide are optimal, the implication is that the number of deaths from drunk driving, 17,000 a year, is also optimal. This is actually a plausible inference. If there are only 2,000 nonpassenger deaths (other than that of the drunk driver himself) caused by drunk driving every year (and how many of the accidents in which a drunk driver is involved are actually caused by the drinking?), then the probability of being killed by a drunk driver is very small, and the value of life estimate that I used in my post on the trans-fat ban should be usable here as well to conduct a cost-benefit analysis of drunk driving. The probability of a drunk driver's killing someone must also be small, given the number of drunk drivers implied by the arrest statistics. Suppose the annual probability that a drunk driver will kill a nonpassenger is .001 (as it would be, given the 2,000 victim figure, if there are 2 million drunk drivers, which is a very modest extrapolation from the arrest figure, since many drunk drivers are not caught). Then the expected injury cost from drunk driving is $7,000 (.001 x $7 million). (This corresponds to Becker's $10,000 figure, which seems to me too high, as it disregards the drunk drivers who are not arrested. Notice that if only a third of drunk drivers are arrested each year, the expected-cost figure drops to $3,333.) This implies that a driver who derives at least $7,000 in utility per year from drinking while driving (more commonly, shortly before driving) is behaving optimally and should not be punished at all. The larger issue that the drunk-driving question raises is the choice between ex ante and ex post regulation. Health inspections of restaurants and, yes, a ban on trans fats are examples of ex ante regulation. Such regulation prevents dangerous activity rather than waiting for the danger to materialize and using the legal system to punish the injurer. The tort system is an example of ex post regulation. If you drive recklessly but don't injure anybody, you have not committed a tort. Tort law comes into play only when an injury occurs. The theory is that an optimal tort penalty for the injury deters tortious conduct, not perfectly--or there would be no tort cases--but well enough. Criminal law is a mixed bag. Crimes that result in injury are punished, usually quite severely, but much preparatory conduct--attempts and conspiracies--is punished as well, even when no harm results (the failed attempt, the abandoned conspiracy). Arrests for speeding--and for drunk driving--are examples of ex ante regulation. The economic argument ex ante regulation is that ex post regulation is often inadequate. This is obvious in the trans-fat situation--it would be impossible to figure out which victims of heart disease owed the disease, and to what extent, to which restaurants. In the case of reckless homicide, the answer is less clear. Suppose drunk driving is inefficient--the drunk driver derives less utility than the expected accident cost--and so we want to deter it by punishing the drunk driver who kills or injures a nonpassenger. Suppose the value of life is $7 million and 10 percent of the drivers are not apprehended. Then the optimal penalty would be a fine of $7,780,000 ($7 million √∑ .9). Few drivers could pay that, so the trick would be to impose an equivalent disutility on them by nonpecuniary means, such as imprisonment. This is not to suggest that punishing drunk drivers who are arrested, the method that Becker endorses, can't achieve the correct deterrence. But punishing just the ones who kill might be more efficient--there wouldn't be as much need for policemen, there would be fewer trials and prison terms, and probably many drunk drivers are quite harmless, for it is unlikely that everyone who drives while drunk has an equal probability of causing an accident. In general, heavy punishment of fewer people is chaper than light punishment of more people. Thus, only if ex post punishment failed to deter optimally would there be a strong case for punishing drunk drivers who are not involved in accidents with nonpassengers (assuming drunk driving is inefficient, the assumption questioned earlier in this comment)--or at least a strong case based on the simple model of rational choice that underlies my analysis. Maybe drunk drivers systematically underestimate the effect of drinking on the likelihood of an accident, or believe that they can fully compensate for the danger by driving more slowly, or exaggerate the degree to which they can hold their liquor, or exaggerate their driving skill. Maybe their drunk-driving behavior is addictive, and they do not realize, before starting to drink, that they won't be able to avoid drinking before they drive. These might be grounds for ex ante regulation--even for regulations anterior to arrest, such as stiff alcohol taxes.

Comments

[DDude]

It is hard to believe what I am reading here. Take the example of someone coming up to you and kicking the crap out of you until you die. What right do they have to do so? None; obviously. Why? Because it is wrongful harm to you. Society agrees and legislates accordingly.

What about if someone purposefully runs into you with their car killing them? Same result, the conduct is criminal.

Now what about if someone were to play russian roulette with you as the target? Same result, the conduct is criminal. Why? Because the roulette player has exposed you to wrongful harm without your consent (the harm being risk of death). Society has wisely decided that the russian roulette player has no right to put you at risk without your consent.

Now what about driving while intoxicated? Society has decided that driving while intoxicated is risky (the statistics presented above, controlled tests, and common sense all confirm this finding by legislatures and parliaments everwhere). As such, driving drunk inflicts the wrongful harm of risk of death upon you.

As for comments about driving while on cellphones, some jurisdictions have started to legislate against cell phones for drivers. Careless driving is always a crime (people are charged regularly with not paying attention to the road, reading while driving, etc.).

If you disagree with the legislative finding that driving with a BAC over 0.008 increases the risk of accidents, I challenge you to come up with a better measure that can be substitued into the law.

If you agree that there is some risk but feel that I should have to incur this risk, I challenge you to explain why.

[Bernard Yomtov]

DDude,

Let me try to anticipate the answer to your question. My apologies to all if I err.

Suppose you get in your car, perfectly sober, and drive in a sensible way to the grocery store. You have still imposed some small risk on others. You might have a moment of inattention, or a mechanical failure, that causes an accident. Your very presence on the road, by increasing traffic, somewhat increases the chance of an accident.

Nonetheless you are allowed to impose this risk on others. Why? I suspect the argument is that the utility you gain far exceeds the expected value of any damage you may cause. Thus driving to the grocery is "efficient." Similarly, it is possible to argue, though I don't agree, that driving drunk may produce enough utility for the driver to outweigh the costs imposed on others, and hence it should be allowed on efficiency grounds.

Now I happen to think this argument has a number of serious problems, some of which you suggest. How then do I justify letting you drive to the grocery? I'm not sure, but I'd start by saying that there is an element of agreement here. I'm prepared to bear the risk you impose on me in exchange for you bearing the same risk when I go to the store. I'm not a moral or political philosopher, and haven't thought all that through, but it seems to make some sense as a starting point.

[Anonymous]

I've read about breathalyzer type devices that may be installed on a vehicle to disable the ignition if the driver's BAC is over a preset limit.

What if such a device were configured instead to disable the driver's-side seatbelt and airbag?

[Jack]

Bernard; You're doing about as well as any other philosophers and what you're unearthing is our social contract wherein we agree as a democratic society on some of our priorities and trade-offs between risks and benefits. Driving has a plethora of such trade-offs with speed limits etc and we still don't get it right as tailgating is surely cause of huge numbers of accidents but seems to go completely unaddressed.

Here, a judge/lawyer and something of a Friedmanesque "free market" economist have a go at it by trying to monetize the value of life and apply economic principles as a help to defining appropriate policy.

The numbers, I think we all agree? of at least $250 billion per year $825/capita for all traffic fatalities or the 40% ?? attributed to alky related deaths confirm that we've not yet "got it right". Given that the costs of DUI vastly outweigh any commercial losses we'd agree? that getting it close to zero is the ideal.

There is, aloose in our nation which locks people up at five times the rate of the nations we compare ourselves to, for double and longer sentences and have the death penalty in half of our states, a theory that just hammering "them" harder will be our salvation. Despite these policies we kill each other with guns at five and even ten times the rate of the "civilized" nations and have higher crime rates. Of interest perhaps, is that 75% of those locked up are functionally illiterate in a country where the literacy rate for others is upwards of 90%.

Still, it looks as though Posner & Co favor more "hammer" of lock-ups and heftier fines, despite the fact of those much below median income having no means of paying even the existing fines and locking up being the most expensive of means of changing behavior.

I posted a bit on Sweden & Norway that seem to have begun much earlier and have come close to "getting it right" on the "response to" thread. But, we'll probably have to wait awhile before any of our politicos will come forward with .05 much less the .02 of those nations but we'd do well to draw from what Sweden and Norway have done and implement those measures that seem most rewarding in terms of enforcement costs vs percentage drop in accidents and fatalities. Like EVERY other area the US is woefully behind on thoughtful democratic debate making public policy decisions.

Anonymous, according to data from DUI's pulled from wrecks 76% weren't bothering with seatbelts anyway. Even in these callous devil-take-the-hindmost days you do understand that if the DUI himself dies in the ensuing crash, even in a single car accident it's not a victimless crime as a family is left to fend for itself, or a 20 year old that society has invested $100,000 in educating is lost before contributing anything?

It brings up an interesting point though, as it seems most fatalities are when the DUI is .1 or above and that not wearing seat belts would increase the odds of an accident becoming a fatality. It's looking as though getting to 99% seatbelt use is at least as important as getting DUI down. Jack

[DDude]

Bernard,

My argument does not depend on utility, it depends on the concept of "wrongful harm" - a principle even a libertarian can agree with. Driving to the grocerty store inflicts harm (i.e. risk) upon others but it is not wrongful (unless I have departed from the standard of care of a reasonable person).

Why is this so? Because the actions of the driver who went to the grocery store were not wrongful and the actions of the drunk driver were.

How do I define wrongful? Something that is unreasonable or without colour of right. The drunk driver had no right to subject me to the risk of driving drunk but the careful grocery driver had every right to drive to the store.

Both drivers may be committing wrongful actions by harming the enviornment, but it is far less clear. At this point, you might say my theory is not black-and-white, and you would be correct. Morality should not depend on the law or community standards but it is the guide we have; when trying to show that a criminal rule (such as the prohibition against drunk driving) is moral when the community has said otherwise, the burden is higher than a utilitarian balancing of utility (Bentham was wrong in my view).

-D

[Bernard Yomtov]

DDude,

I don't think we have much disagreement. I was trying to explore why drunk driving is wrongful and driving to the grocery isn't.

My argument is not based on utility either, at least not carefully calculated economic utility. Instead it's based on, as Jack said, a sort of social contract idea. I'll let you put me at risk for your convenience if you will let me put you similarly at risk for mine. Of course utility considerations will enter into our decisions to make this agreement, but that's different than the pure calculation utilitarian approach.

On what do base the "wrongfulness" of some activity such as drunk driving?

[CH]

Seems unfair that if somebody hits me while I'm buzzed then I'm at fault. I'm fine if they want to double the penalty for doing something wrong, and being drunk. But driving well after a few drinks shouldnt be penalized. Driving under the influence, my record is spotless. Sober driving I've had some accidents/tickets.

[Jack]

CH: "Seems unfair that if somebody hits me while I'm buzzed then I'm at fault."

I'm not sure that it the typical case. Say that you were rear-ended; I'm sure that the tail-gater would be ticketed and be the cause of the accident but that were you "buzzed" the stats would show an alcohol related, and were you tested (I don't think it requires even probably cause as driving while "buzzed" is inherently illegal) you should pay the penalty for DWI or DUI. BTW, I just found out that OK for example has two laws, DUI is for over .08 and though they seem not to prosecute aggressively over .02 is DWI.

Cheers! and hopes that your DWI record remains "spotless" as even the first "spot" can be a doozy! Could pay cab fare for life with enough left over for a week's vacation. Jack

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