Living in the shadows

Today I’ll discuss another parallel between American’s tough-on-pot and tough-on-speed laws: both are “penumbral crimes,” laws that are widely violated, poorly enforced, and not taken seriously.

Margaret Raymond‘s 2002 paper on the subject had a strong influence on my thinking. She explained, “penumbral crimes reflect failed attempts to use law to shape social norms.”

These laws are not just useless, they are worse than useless.

American police do not have the resources to watch all of us all the time. The government is trying to bring about 1984, but hasn’t succeeded. The law relies on voluntary cooperation. (In the same sense that income tax is “voluntary”: although you can go to jail for refusing to pay tax, the IRS relies on taxpayers filing accurate returns.)

There is supposed to be a combination of carrot and stick. The pleasure you get from obeying the law is the carrot. The stick is your punishment and the contempt with which you are treated for breaking the law.

Contempt for speeding? In your dreams, cops. Some departments post speeding tickets in an attempt to shame drivers. If I showed up on one of those police walls of shame I’d be thinking “yay, high score!” I’d share with friends and family, some of whom spend a lot of time at triple digit speeds.

It’s not really contempt for violating the law that we fear, but rather contempt for violating social norms. Speed law didn’t change social norms because people didn’t really believe in the laws they supported.

I don’t smoke legal or illegal substances so I may not end up on the drug shame lists, but my friends who do aren’t at all ashamed of their habit.

This situation is harmful. With police unable to enforce either law, nobody knows what the prohibited behavior really is. Police can use widely-ignored laws as an excuse for behavior that would otherwise be illegal.

Raymond proposed a “radical” solution: “to alter the law so that it actually sets out the prohibited behavior.”

On the roads, that means post stop where you want every driver to stop on the line every time. Post 55 where you want every driver going 56 to go to jail.

Unfortunately Raymond’s paper was published in a journal that is not easy to find. If your library can find it, read it. Hopefully you’ll come away, like me, with a better understanding of why unenforceable laws are bad.

The opinions expressed in this post belong to the author and do not necessarily represent those of the National Motorists Association or the NMA Foundation. This content is for informational purposes and is not intended as legal advice. No representations are made regarding the accuracy of this post or the included links.

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