With news that the state of Maryland will start penalizing drivers who use cell phones, the Old Line State joins a long list of jurisdictions around the world which are attempting to crack down on the nebulous concept of distracted driving.

There is strong evidence suggesting that not only is such legislation ineffective, but that it may actually lead to more dangerous roads as drivers continue to use these devices (despite laws to the contrary) -- but now do so more covertly and dangerously.  Unfortunately, many of the laws on this topic also tread dangerously close to the concept of pre-crime.

The true purposes of this type of legislation is twofold.  First off, and very important from the government's perspective, these laws are substantial sources of revenue from drivers receiving fines for corresponding infractions.  It is for this reason alone that -- regardless of their ineffectiveness (or even increased danger) -- such laws may never be repealed.  The second purpose is to prevent accidents.  This second purpose, and its links to the actual actions being penalized and the actions sought to be deterred, raises some problematic questions of pre-crime legislative targeting (a concept well-illustrated in the film Minority Report with Tom Cruise).

On its own, being distracted while driving is almost impossible to prove.  Sure, if you have your head down near the floorboards, you are clearly distracted (and probably not driving very well, or safely).  But many people can drive very effectively under conditions for which another less competent driver may be dangerously distracted.  Take eating, or playing with the stereo, or talking on a cell phone, or even texting.  Many (if not most) drivers can perform these tasks with minimal impact on their ability to drive safely and avoid accidents.  A few can't.  So why have laws catering to the level of the most incompetent among us?  That is most certainly not fair (nor rational) policymaking.  Why punish the many for the deficiencies of the few?

And what about daydreaming?  Or a long blink?  Both of these actions can lead to distracted driving.  How many accidents are caused by these situations?  Of course, we'll never know, but they may outnumber by a large margin the number of accidents caused by using a cell phone.  Are we going to legislate against them as well someday?  How will we monitor the infractions?  In-car brain-wave readers and eye-scanners?

We end up in the Minority Report pre-crime territory when we ask legislators why it is illegal to use a cell phone while driving.  Their answer: well, if you use your cell phone while driving, you may become distracted, and in that distracted state, you might cause an accident (i.e., property damage and/or injuries).  On its own, using a cell phone while driving does not injure others and/or damage their property.  The problem (i.e., the crime) is a possible resulting accident, but this is a hypothetical event in the future, and the legislators cannot get to the occurrence they wish to prevent (i.e., the true crime) without invoking the future tense and then legislatively interceding between an otherwise theoretically lawful action and a potential future unlawful event.  In other words, we are talking about pre-crime.  This is not good, because by accepting such laws regarding communications device usage while driving, society is perhaps unwittingly allowing the slippery slope precedent of pre-crime legislation.  Where does this slippery slope end?  Watch the movie.

Another key point: blunt legal instruments make for bad law.  The law must be targeted at those doing harm and capture as few innocent parties as possible.  This is the principle behind "innocent until proven guilty," and the general concept that it is better to let x guilty parties go free than to convict y innocent parties of a crime they did not commit (with x being typically much larger than y).  Do general bans against cell phone use while driving adhere to this principle?  No.

What is the correct answer?  Repeal all bans on the use of communications devices while driving, and probably repeal most of the associated distracted driving legislation, and then work solely from the true (and more effective) deterrence aspect.  Namely, just increase the penalties for being at fault in an accident.  By definition, you are not at fault in an accident unless you are distracted, engaged in some type of inappropriate activity, or generally an incompetent driver -- they all deserve equal penalization, so the specific cause of the accident (beyond assigned general fault) is largely irrelevant.  But the moral hazards of any form of pre-crime legislation mean that it must be avoided at all costs.