White-Collar Crime

Should We Respect A Law No One Follows?

No one really thinks you should drive the speed limit. But what does that mean for the law?

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traffic stop pulled over by police for speedingIf you’re going to sentencing in federal court, the judge is directed by Congress to impose a sentence that is “sufficient, but not greater than necessary” to meet the purposes of sentencing.

Congress has helpfully told us what the point of sentencing is: to keep people in general from committing this kind of crime (i.e., general deterrence); to provide specific deterrence; to rehabilitate the person being sentenced; and “to promote respect for the law.”

Let’s think about how to promote respect for the law.

Think, first, about speeding tickets. Regrettably, I have collected a number of speed camera notices in the mail. It’s been enough that I’ve had to have a conversation with my wife about how, perhaps, that’s not the best use of our family resources.

Aside from speed cameras, I haven’t gotten a speeding ticket in 25 years. Part of that is because I tend to peg my speed off of the traffic around me, and part of it is who gets pulled over for traffic violations. As I wrote about here, the registration on my Prius was suspended after I failed to get it emissions tested in a timely way (and, yes, an emissions test on a Prius is silly).

At some point, I started running an experiment to see how long it would take for a middle-aged white guy in a Prius with a suspended license to get pulled over.

It took about 20 months.

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I was given a warning. Which I am grateful for.

Speeding is an odd offense. Under a certain point, no one thinks that speeding is morally problematic. And no one thinks that you should actually drive exactly the speed limit — going 56 in a 55 is illegal, sure, but it isn’t really illegal.

Does that compromise our respect for the law? Should it?

What I think we’re saying is that some violations of the law matter and some don’t. Before speed cameras were installed, speeding was only a problem if you were being dangerous, going way over the speed limit, or if a cop wanted a pretext to search your car because he thinks you’re a drug dealer. The second part of that you will likely see as a problem only to the extent that you’d rather not see different rules for one set of citizens than for another.

But, generally, we choose the clear rule that no one follows — drive 55 — to a less determinate rule — don’t drive dangerously — that few people do. Which is odd because our enforcement practices are driven by the second, unstated, rule. As a society that seems sort of reasonable, but probably only because pretty much everyone drives and we have a more or less clear understanding of what it means to be driving dangerously.

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There are lots of rules like this, where enforcement is lax to nonexistent (and, where there are prosecutions, they’re disproportionately against poor folks or minorities or both). For example: Underage drinking laws; marijuana possession (in much of the country); or open container laws (think college football weekends at any Big 10 town).

Where these get odd (and tragic) is when something bad happens, like when underage drinking leads to a death or a serious injury.

Or, to choose a similar example, when someone is doing something that could, technically, possibly, be wire fraud but would never in a million years be prosecuted. The problem with cases that would never be prosecuted in a million years is that, in federal court, they’re often prosecuted more frequently than that; like when a guy destroys a fish and is facing up to 20 years.

And the odds of prosecution go up substantially when something bad happens.

When a judge imposes sentence in, say, a case of reckless driving because someone was driving 65 in a 55 zone (or pick your favorite illegal but not bad speed to be going), but that speeding nonetheless caused a death, how should respect for law figure into her sentence?

Virtually no one follows the law to its letter. No one respects the law. Do we promote it by slamming the unlucky few?

Or, rather, would it be better — if we worry about respect for the law — to write laws that are actually enforced as written?

Also, speed cameras are a moral abomination that is offensive to the idea of a free society.

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.

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