Drunk Driving, Pre-Crime, and The Christian Ideal

The Problem (or, a problem)

Rayshard Brooks was guilty of driving under the influence of alcohol. 

The use of force in the killing of Rayshard Brooks is a tragedy, whatever your perspective on the shooting. The morality of the use of deadly force is a question that demands an answer and is deserving of its conversion. This killing is likely a case in which the letter of the law was followed, per Tennessee v. Garner and department policy. However, we also know that the letter of the law is not always righteous or a reflection of true justice. Though a medical examiner has ruled the shooting a homicide, I do not have much hope a court will agree. I hope I'm wrong. With that said, I believe it would be helpful to look at a systemic issue within our society that causes these sorts of potentially deadly encounters to happen in the first place. If we can avoid potentially fatal encounters, we can prevent at least some needless death. 

Law enforcement pulling their firearms is not where the problem begins.

A significant problem in American society is that armed state enforcers are the de facto solution to every last issue in society. The police are the first people to be called in countless non-emergency and non-violent situations. 

A mentally ill person is having an episode or in need of help? Society's solution is armed law enforcement. There's an unruly child in an education environment? Society's solution is armed law enforcement. Twenty-somethings have a party that's too loud for the neighbors? Society's solution is armed law enforcement. Assigning this multitude of social problems as the task of armed enforcement agents causes escalations and further conflicts. Departmental policy, the nationwide militarization of the police, and police culture all contribute to situations escalating in violence and harm instead of deescalating and preserving life. 

First, I want to offer a few assurances. Reckless drunk driving is hatred towards your neighbor. It is very dangerous, and it is a sin. What constitutes drunkenness is debatable, but the principle remains the same. I am not shrugging off or minimizing the harm of drunk driving. In fact, I believe the Christian libertarian/theonomic position would adequately answer the drunk driving problem.

So, according to libertarian principles and God's Law, how should society deal with drunk drivers?

Victimless Recklessness

The answer largely depends on where the drunk driver is driving and whether his drunk driving has caused any bodily or physical harm. In a libertarian/theonomic society, the civil realm would not play a significant role (or a role at all) in personal transportation. Transportation companies, other companies, community associations, etc., would own and manage highways and roads. The point being, the state wouldn't own the roads.

How these companies/associations decide to regulate access to their roads would be up to them. Still, there is a great deal of reason to assume strict contractual regulations regarding basic traffic safety guidelines. That would undoubtedly include being under the influence of a substance like alcohol. These internal and voluntary regulations would be a necessity due to basic business needs, liability, marketing, etc. It is in the vested interest of the companies to provide an excellent service to their customers. But I digress. A detailed explanation of the roads in a Libertarian society can be found elsewhere.

If someone is drunk on a highway or road, the righteous punishment would likely be at least a hefty fine that goes to the owner of the roadway. This fine would be contractually based and not based on state legislation or regulations. Depending on the terms of the use of the highway, he could also lose his access to this road. Failure to pay the fine could result in a permanent loss of access to the service of roadways. Failure to comply with a loss of service would result in trespassing charges. Depending on the terms of other highway owners/associations, he could lose access to those. It's likely that major transportation groups would cooperate to ensure that repeat dangerous offenders do not have access to their roads.

Employees of the highway would ensure that the drunk is off the road, ensure that he's transported somewhere safely, and ensure identification so that the owner of the roadway can collect fines and enforce sanctions. This staff is not by default armed with firearms and aren't privileged with qualified immunity. They'd, hypothetically, specialize in de-escalation and dealing with the incapacitated and uncooperative. The drunk driver would also be billed for the ride home along with any other associated fees. A sort of non-statist drunk tank is also a possibility when there aren't other alternatives; however, the drunk driver would be billed for that service as well. 

A very similar process would happen on private property such as a Wendy's parking lot, but service businesses aren't likely to have on-site staff for traffic violations. But clearly, traffic or transportation on-site services are needed in a libertarian society, so one could easily assume that it would exist. When there's a need, the market typically provides.

All of this can be done without being locked in a cage, without handcuffs, without police, and without violence.

Now, all of this is for situations in which there was no bodily harm or property damage. The sanctions I mentioned are contractually based and serve as stiff incentives against drunk driving. There's every reason for road owning companies to cooperate and share data on dangerous drivers. Drunk driving can quickly lead to losing the privilege of using those services. 

However, the act of drunk driving should not be a crime.

Pre-Crime

This is where some will be alarmed. Here's the moral and philosophical argument. Being drunk is not a crime; it's a sin. Further, while driving drunk can often be dangerous and reckless, the mere potential for harm is not a crime. We should not punish pre-crime as if we can omnisciently show that people will be harmed if they drive with an arbitrary level of alcohol in their blood. We cannot tell the future, and we cannot know the physiology of every last driver. We cannot turn some fancy dials on a screen and drop some magical spheres into a track to show some potential future that includes bodily harm or property damage. We cannot treat potential harm as realized harm. We have a right to address reckless behavior, but not to treat an irresponsible individual like an individual guilty of harming others. A moral distinction between careless sin and harmful crime must be made. God's Law is restorative and punitive, it is not preemptive. Preemptive law is lawlessness. This theological distinction does not mean we should be reckless or careless. The Parapet Principle speaks to how God's Law places a high value on ensuring others' safety, even when on your property.  

"When you build a new house, you shall make a parapet for your roof, that you may not bring the guilt of blood upon your house, if anyone should fall from it." - Deuteronomy 22:8 

The Parapet Principle is comparable with ensuring that your swimming pool is enclosed by a fence or generally kept safe if you invite young children onto your property. In ancient Israel the roof was a social space, and having parapets, or a wall along the edges of your roof, was an act of love and kindness to your guests. However, it is vital to understand that legal action only took place if anyone should fall from your roof while you did not have parapets. God's Law is not preemptive or regulatory in that it does not prescribe penalties or fines for failing to have a wall on your roof. The choice to have parapets was the jurisdiction of the homeowner, but there would be severe sanctions (in this case, bloodguilt) if the owner chose not to have a parapet, and someone fell. In other words, there is no crime until there is a victim.

Again, reckless behavior that places others at risk is sinful, and society should answer this kind of behavior. The answer to victimless recklessness, however, is not making irresponsibility a crime. 

Victims of Recklessness

But what if there is bodily harm? All other fines and sanctions would apply and more sternly than before, but this is when it becomes an actual crime. After due diligence and an investigation, the guilty would have to pay at least financial restitution to the hurt. This restitution could be huge fees depending on the harm. If they cannot pay, they'd pay their restitution through income garnishments or a labor arrangement. This restitution would be flexible according to the desires of the one harmed. The victims have rights to their restoration. But that restitution cannot go further than what the court dictates. The court prescribes a maximum penalty, and the victim has a right to accept lower restitution according to their grace and mercy. A theonomic lex talionis argument for physical punishments for this crime would apply as well. Prison is not an option according to God's Law.

Property damage is also a crime, and restitution would work the same way save with no possibility for physical sanctions. Restitution would be paid to the owner of the damaged property.

If a drunk driver kills another driver or a pedestrian, this will dictate according to God's Law, the death penalty. Reckless endangerment that leads to loss of life is de facto murder. It's not a pure accident in which texts speaking of cities of refuge (Deuteronomy 19:1-10; Numbers 35:22-25) apply because this scenario includes evident gross neglectfulness. 

Conclusion

If we treat every violation like an act of violence, we only get more violence. The police cannot be the solution to every problem, and reliance upon the state can't solve every problem. This is especially true when too often there is one law for the police and one law for the people. The solutions above can be easily applied to other non-violent acts of recklessness or other non-emergency social issues. There are far better and far more consistent ways to deal with these pressing social problems. In treating people as if they've caused great harm to others when there's only the potential to cause significant harm, we are only creating encounters that do cause great harm.

Further, allowing the state to sanction pre-crime can only lead to dystopian measures against the populace based on ever increasingly far-fetched hypotheticals. 

You might hurt someone while driving, so the state treats you like you already did.

You might shoot someone with your AR-15, so the state treats you like a criminal and makes sure you can't own one. 

The gulf between these two state actions is a wide one, admittedly, but they're both based on the same flawed and amoral concept of pre-crime. There may be a victim at some point, so the state treats you like you've already victimized someone. It's a presumption of guilt without due diligence or trial packed into a Philip K. Dick science-fiction style arrogance that presumes to know the future. Lastly, relying on a pre-crime concept of law is ineffective, and there are far better methods to minimize gross recklessness. 

I don't know if Rayshard was a good man or not, but I do know that if our society did not tacitly endorse the idea of pre-crime, he would still be alive.