Making Functional Laws Dysfunctional

By Jim Baxter, NMA President

There are many traffic laws that function reasonably well—as long as they are not strictly enforced. Enforcing “the letter of the law” can make a reasonable regulation unreasonable.

Prior to the passage of the National Maximum Speed Limit in 1974, most speed limits were prima facie, meaning exceeding the limit was cause for an enforcement stop. But, if conditions were such that no one was being endangered, the speed was not unreasonable, and the prosecution could not prove reckless or irresponsible driving behavior, the speeding citation could be dismissed. Of course the reasonableness of prima facie speed limits placed a modest burden on enforcers and prosecutors.

The government’s answer to this burden was the switch to “absolute” speed limits where the elements of reasonability, responsibility, and common sense were removed from the decision process. Exceeding an often arbitrary number became the crime, even if safety was in no way affected. However, absolute speed limits still worked well enough as long as they were not enforced as absolute limits. Adding a five or ten MPH enforcement cushion, over the limit, and backing off on enforcement when traffic was moving smoothly and safely added an element of rationality to an otherwise irrational regulatory system. Of course, giving this much discretion to enforcement agencies was (is) a recipe for discrimination, favoritism, and unequal administration of the law.

With the advent automated photo based enforcement devices the ability to enforce absolute speed limits, to the letter of the law, became feasible. Also, all judgment and discretion, (good and bad) can be removed from the enforcement process. Political considerations are the only constraint that prevents the issuance of citations for exceeding the speed limit by one MPH. Citation revenue can be dialed up or down by changing the enforcement tolerance thresholds. Dial it up to increase the tolerance threshold, and reduce revenue, to reduce political opposition. Dial it down to make more money, but always sensitive to rising opposition that might undermine the entire enterprise.

In the end, almost always, greed wins the day, and arbitrary absolute speed limits will be enforced to the letter of law, to generate the maximum amount of revenue. However, this story can have a happy ending; that is, if the driving public finally recognizes what is being done and demands legitimate speed limits and the end of rapacious photo enforcement.

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