Every day I take Master and Commander for our daily exercise along the East River Walk. This promenade is a (very) slender strip of "greenspace" (there's far more asphalt than grass) for walking, jogging, bicycling, etc. Dogs are welcome on the promenade, but New York City's leash law is in effect at all points along the strip (there are off-leash dog runs at either end of the 30-block-long path).
All along the promenade itself are very clear signs:
In the late morning, when I used to walk Diamond (I worked nights until recently), we would, on average, encounter three or four unleashed dogs on the promenade, in only a ten-block stretch lasting perhaps 25 minutes. It was an extremely rare day that we would not encounter at least one unleashed dog. Again, the promenade is an extremely narrow lane, at some points sometimes only wide enough, literally, for one person. But that doesn't stop scofflaws from intentionally disregarding the leash law and letting their pets roam uncontrolled.
Question for the lawyer and law student Freespacers: Why do we have leash laws? Answer: It's a straightforward safety statute, arguably the most primal type of law.
Question for the economist Freespacers: Why do we have leash laws? Answer: Unleashed dogs generate negative externalities. These externalities cannot practically or efficiently be internalized. In order to maximize social welfare, the optimal approach is a "corner solution" -- i.e., zero-tolerance prohibition. Stated differently, society -- using traditional cost-benefit analysis -- has determined that the private benefits (whatever they may be) can never outweigh the social costs imposed by allowing dogs to be off-leash in public spaces.
Coming back to the lawyers: What is the typical standard for civil liability in most jurisdictions regarding damage or injury by animals? Answer: Strict liability, not negligence. (Alternatively, one can argue negligence per se for violating a safety statute, which for our purposes yields the same result.) This is just the legal mirror-image of the economist's answer: zero tolerance.
Ask the owner of an unleashed dog on the East River Walk why she willfully disregards the leash law, and she'll say -- well, generally what they say is not fit for publication (we are New Yorkers, after all). Seriously though, they'll typically say something like "my dog isn't vicious." Or, to elaborate: "I know my dog better than you or the city do. It should therefore be my decision, not society's, whether to impose on others the risk (which I deem negligible) of disregarding this safety statute. If and when I turn out to be wrong and my dog causes harm, then I will of course be responsible. But unless and until I have imposed "real" harm on others, I should be free to make my own decisions as to what risks are acceptable regarding my conduct. The leash law punishes me before any "real" crime has been committed and before anyone has been harmed. The law is therefore inconsistent with the principles of a free society and I am morally entitled to oppose it and even to disobey it.
This is, of course, utter nonsense.
Yet this is exactly the reasoning posited by most libertarian opponents of DUI laws. Such libertarians are misguided in their opposition. (By "DUI law" I mean strict liability crimes based on exceeding a certain blood alcohol content, even without observed evidence of actual "impaired" driving.) Examples:
[T]hat you don't have to be "drunk" to be in violation of the law is part of the problem, isn't it? The whole purpose of roadblocks is to catch people who aren't driving erratically enough to be noticed and stopped by cops. But if they aren't driving erratically enough to be stopped by cops, then maybe they really aren't such a danger, are they? (Source.)
Every day when I was a prosecutor I saw drunk driving defendants in court who had not caused any accident, injury, or property damage, facing devastating criminal penalties merely for driving with an unlawful blood alcohol content (BAC). (Source.)
I think you guys are blurring the distinction between driving DRUNK and drinking and driving. One is illegal and the other isn't. But we're taught to think they're equally bad. (Source.)
Zero tolerance has nothing to do with drunk driving. We don't need zero tolerance to combat drunk driving, because the drunk driving laws already make that conduct a crime. Zero tolerance was designed to penalize drivers who are not drunk... (Source.)
What precisely is being criminalized? Not bad driving. Not destruction of property. Not the taking of human life or reckless endangerment. The crime is having the wrong substance in your blood. Yet it is possible, in fact, to have this substance in your blood, even while driving, and not commit anything like what has been traditionally called a crime. (Source.)
What all these hyper-anarcho-libertarians are forgetting is that not all harms are post hoc, physically manifested harms (e.g., actually crashing into another vehicle). The very act of drinking and driving imposes a probabilistic harm (i.e., a risk). That harm, that risk, is just as real, just as costly and just as deserving of criminal prohibition as post hoc harm. Moreover, the probability is objective (i.e., as measured by society, or the "reasonable person"), not subjective (i.e., as measured by the drinker).
Just as my Upper East Side neighbor has no right to replace society's judgment about her dog's potential danger with her own judgment (even if "better informed"), so too does the drinker have no basis to argue that his own subjective judgment to have "just two beers" should replace society's cost-benefit analysis finding that zero tolerance is the efficient solution.
In tort law, meanwhile, strict liability also attaches to "ultrahazardous activities." DUI laws merely reflect, one could argue, society's determination via the criminal law that drinking and driving rises to the level of "ultrahazardous activity." Unlike blasting with dynamite or running a nuclear reactor, however, drinking and driving is not a productive endeavor, but rather a consumptive act, and is therefore arguably even more susceptible to criminal prohibition than hornbook "ultrahazardous activities."
But even if you have a problem borrowing from private (tort) law to justify a public (criminal) law, you don't have to do so. It just makes the analysis easier. Think back to first-year criminal law -- why do we even have it? Two basic reasons: retributivism and deterrence. How is a strict liability DUI law inconsistent with either goal? Clearly DUI laws serve a deterrent function. As for retributivism: as I describe above, society is entitled to "punish" the DUI driver for the probabilistic harm -- the risk -- that he has in fact imposed, even if that harm never physically manifests via an accident or injury. Criminal law punishes for harm done. The DUI driver, simply by drinking and driving, has caused harm. It is therefore entirely proper, even to a libertarian, to punish him for that harm.
And for those obsessed with physically manifested harm, consider the very real harms imposed by drinking any amount of alcohol and then driving. When I'm walking Diamond and an unleashed dog approaches, I now have to pause and ponder: is this dog vicious? Fixed? Too playful for the narrow confines of the Walk? If the owner is so careless regarding the leash law, then why should I think she's responsible about vaccinations, or flea & tick control? Even if the dog is "harmless," I have already been harmed. I have to worry about the other owner and the soundness of her judgment. I have to adjust my behavior in response to her unreasonable behavior. My leisure time is diminished by her conduct, which is neither objectively reasonable nor privileged nor excused. How is it wrong to criminalize such harmful conduct, and how is the DUI analogy any different? Maybe you can in fact handle "just two beers" and drive home safely -- but why should I have to worry about it? Maybe you'll cause an accident, maybe not. Either way, every other driver on the road has already been harmed simply by your engaging in the conduct.
(I presume incidentally that no extensive discussion of criminal intent is necessary here. As with tort law, intent can mean the "intent to perform the act" -- i.e., to drink and then drive -- and does not require "intent to harm." I suppose there can be a hypothetical "involuntary intoxication" defense to DUI, but such a bizarre fact pattern is not fatal to my thesis.)
I am of course not saying that any and all anti-drunk-driving laws are automatically consistent with libertarian principles, or that they're effective, constitutional or even sane. There are several extreme laws that unacceptably infringe upon protections regarding search and seizure, self-incrimination, the right of jury trial, property rights, parental rights and other personal freedoms. My focus in this post is only on the straightforward strict liability criminalization of driving with a certain blood-alcohol content.
Diamond weighs 5o pounds, can maybe reach 15 miles per hour and has no locking jaw. When you drive, you are hurling a multi-ton slab of metal down public roads at potentially fatal speeds. Can it really make sense to have strict liability offenses for an unleashed dog but not for DUI?
Zero-tolerance BAC offenses are consistent with the nature of harm being addressed, accurately reflect the economics of the offender, his actions and his surroundings, and -- without more -- do not offend any bona fide notions of personal liberty. They are therefore wholly consistent with a libertarian worldview.
POST SCRIPT: Some may ask how it can be that so many unleashed dogs are romping around this public space. Simple: there is absolutely no law enforcement on the Walk whatsoever. I have walked that promenade literally hundreds of times, at all hours of the day and night, every day of the week, during all seasons and weather conditions. And never -- not once -- have I ever seen a police officer, park official or Humane Law Enforcement representative. How remarkable that the center of human civilization can have, right in its core, a small little state of nature. Go figure.
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