[jrkatz]

> lock their car and take them to the police station and let them contact someone from there. But don't force them to pay a fine or go to court if they haven't caused harm.

Supposing at least some drunk drivers are aware they are drunk but fully convinced they will not harm anyone, this improves their worst case scenario substantially. Before, losing their license; now, getting even closer to home before calling a ride. Does this incentivize drunk driving among people unable to evaluate the danger they present to others (e.g., drunks)?

Obviously, this falls apart somewhat because those same people probably drive drunk today thinking they won't get caught. Nonetheless, the common consensus is that certainty of punishment is the primary deterrent against criminal activity. Certain non-punishment will change some of the calculus.

[pdonis]

> the common consensus is that certainty of punishment is the primary deterrent against criminal activity.

There is no such thing as "certainty of punishment". There isn't even "certainty of punishment if you get caught", since our society is not a sane society in this respect and lets people who do cause harm, up to and including murder, off the hook for all manner of insane ideological reasons.

That said, I didn't say we shouldn't punish people who actually cause harm. The scenario I was describing was a person who is, for example, driving drunk, but hasn't caused harm, and gets stopped by a cop. Should the cop be able to ticket them? Or just prevent them from driving until they are sober? If they haven't caused harm, I would say the latter.

[jrkatz]

I'm sorry, I should have been clear. The 'certainty of punishment' bit should be understood as a probability. The gist of it is that a person considering criminal behavior isn't worried about the severity of the punishment `S` in isolation, but also the likelihood (read: 'certainty') `C` thereof. Simplistically the deterrence model is `C*S`. An extremely severe punishment (execution!) with zero or effectively zero chance of getting caught provides no deterrence. There's more to it - for example doubling severity does not double deterrence in general - but that's the gist of it.

My little thought experiment supposes a person who is drunk evaluates, before deciding to get in the car, the potential outcomes of drunk drive, while entirely convinced they won't harm someone. (I suspect most drunk drives are entirely convinced they won't harm someone, although it is obvious to anybody else there is at least a _chance_ they will.) Today, getting caught with whatever nonzero probability results in a punishment of some severity. By the model we're assuming above, this produces a nonzero amount of deterrence. If we shift away from punishing drunk drivers, the severity drops to zero. If a drunk's options are to call for a ride from the bar or try to drive home, and getting caught at the latter only mean they'll have to call for a ride from some location between the bar and home, driving is the rational choice after all, _so long as they are convinced they won't hurt anybody_.

I was being too circumspect. The point of my scenario is to highlight that decriminalizing drunk driving will likely increase the amount of drunk driving, at least among the population of drunk drivers who are overconfident in their abilities. That in turn will increase the danger drunk drivers present to the rest of us.

I gather you think reaction is morally preferable to prevention in such cases. Is that a fair assertion? In general, I bet we agree there is some amount of risk to myself that I must tolerate to afford others their freedoms, and have just landed at different risk tolerances. I try to take need into account when drawing my line in the sand. "Does anybody _need_ to drive drunk?". Since it's a situation drunk drivers make for themselves I'm happy to punish it. How do you draw your line?

[pdonis]

> My little thought experiment supposes a person who is drunk evaluates, before deciding to get in the car, the potential outcomes of drunk drive, while entirely convinced they won't harm someone.

And just that last clause makes it clear that, at least at that time and place, that person is not going to be deterred by reasonable incentives against reckless behavior, because their judgment is impaired.

Basically, your solution (which is also, as you point out, the solution in place in our current society), is to put unreasonable incentives in place--unreasonable from the point of view of the person, because, in your hypothetical, they're 100% convinced they won't harm anyone, so to them this whole "don't drive drunk" thing seems like an unreasonable restriction. It might be reasonable from the point of view of society, but that very view of "society" is not really compatible with a free society of free and responsible adults. More on that below.

> I gather you think reaction is morally preferable to prevention in such cases. Is that a fair assertion?

The only moral principle I have stated is that one should not impose punishments on people who have not caused actual harm. But I did imply a corresponding moral responsibility for the people themselves: that they should exercise reasonable judgment when making choices. People who either will not or cannot take on that responsibility are not going to be deterrable by the kinds of reasonable incentives I am proposing.

Your position seems to be, basically, that in our current society, most people fall into the latter category: they either will not or cannot take responsibility for exercising reasonable judgment--for example, by making it an ironclad rule for themselves that if they are going to go someplace where they might get drunk, they have a plan in place in advance to get home without having to drive. If most citizens of our supposedly free society can't meet that standard, we have a much worse problem than drunk driving.

> Since it's a situation drunk drivers make for themselves I'm happy to punish it.

I don't disagree that being in a situation where you "need" to drive drunk is self-inflicted; I basically said the same thing just above. My point is broader: that our society seems to assume that most adult citizens, if not prevented by various nanny-state laws, will make such errors of judgment frequently enough for it to be a problem. Either that assumption is false, in which case our society is imposing huge restrictions on people that are not justified; or, even worse, that assumption is true, in which case I think our society is doomed.

[jrkatz]

> The only moral principle I have stated is that one should not impose punishments on people who have not caused actual harm

But isn't the risk of death a harm? That's what I'm driving at here. It's about where the line is drawn.

Should it be legal for someone to take shots at you as long as they miss? Drunk driving is the tip of an iceberg here.

> My point is broader: that our society seems to assume that most adult citizens, if not prevented by various nanny-state laws, will make such errors of judgment frequently enough for it to be a problem. Either that assumption is false, in which case our society is imposing huge restrictions on people that are not justified; or, even worse, that assumption is true, in which case I think our society is doomed.

This bit about a doomed society interests me. Why must society be doomed if it needs "nanny-state" laws to function? If society needs those to function and it makes them (society produces its own laws, after all), isn't that the look of a society that is succeeding? A society that regulation and fails to self-regulate is doomed, for sure.

Now then, the bit about 'most' adults needing such help doesn't come from anywhere. I agree it's a few. But if most adults don't need government incentive to drive sober, regulation preventing drunk driving abrogates a 'right' _they won't exercise_. Are their freedoms limited in that case? Or are laws against drunk driving highly targeted, impacting only the people who are driving drunk, getting them off the roads before they hurt someone?

[pdonis]

> isn't the risk of death a harm?

No. It's a risk. Death itself is a harm, but risk of harm is not the same as actual harm.

> Should it be legal for someone to take shots at you as long as they miss?

If they're taking shots at you with the intent of harming you, that's already a crime; in most jurisdictions it's called assault with a deadly weapon or something similar. The basis for such laws is that having someone intentionally shoot at you, even if they miss, is a harm in and of itself. But that theory does not generalize to any action that carries a risk of causing harm.

If they don't realize you're in the path of the shots and they miss, there is no crime, but there is certainly a very good reason to keep that person as far away from you as possible. And if everyone did that with people who do obviously reckless and dangerous things, those people would find it impossible to survive and would pay the price of their recklessness. I'd be fine with that.

> Why must society be doomed if it needs "nanny-state" laws to function?

Because if it actually needs nanny state laws to function, that means its citizens are not responsible adults. And a society whose citizens are not responsible adults is doomed.

> I agree it's a few.

If it's only a few, why is it a serious problem that requires nanny state laws to fix? Why can't all of us who are responsible adults just, as I said above, refuse to associate with the few who are not responsible adults? Oh, you want a drink at my bar (or my private party, or just hanging out with me)? Are you going to drive? Sorry, I can't give you a drink if you're going to drive. And so on.

In other words, a society in which all but a few people are responsible adults does not need nanny state laws for the few who are not, because everyone else, as responsible adults, will regulate the behavior of the non-responsible few anyway. Nanny state laws are only needed if many citizens are not responsible adults. But you've said you don't think that's the case. So why don't you, as (presumably) a responsible adult, just do what responsible adults are supposed to do when dealing with the few who aren't responsible?

> are laws against drunk driving highly targeted, impacting only the people who are driving drunk, getting them off the roads before they hurt someone?

I already described a scenario in which a cop does exactly this with a drunk driver who doesn't cause harm, without imposing any punishment. So your implicit assumption that the only way to get drunk drivers off the roads is to punish them for violating a nanny state law is incorrect. In other words, in my proposed scenario, the cop, a responsible adult, regulates the behavior of one of the few who is not responsible. He can do that without needing any nanny-state laws to justify it. His simple duty to keep the roads safe is enough. That duty already empowers him to get drunk drivers off the road. He can do that just fine without imposing any punishments.

> regulation preventing drunk driving abrogates a 'right' _they won't exercise_

In this particular case, perhaps. But giving the government power to enact such nanny state regulations will abrogate other rights that responsible adults will want to exercise. There is no such thing as a government that only imposes just those nanny state laws that are needed to restrain the irresponsible few and never imposes any that unjustifiably restrain the responsible many. I already gave one counterexample: speed limit laws. There are many others.

[jrkatz]

> If they're taking shots at you with the intent of harming you, that's already a crime; in most jurisdictions it's called assault with a deadly weapon or something similar. The basis for such laws is that having someone intentionally shoot at you, even if they miss, is a harm in and of itself. But that theory does not generalize to any action that carries a risk of causing harm.

You can't lean on the argument that the harmless act of shooting and missing is a already a crime while simultaneously arguing that drunk driving should not be a crime unless the driver connects. You really need to decide what amount of reckless disregard for another life constitutes a 'harm' and should be criminalized.