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About 41,000 people are killed annually in traffic crashes. Excessive speed causes almost one-third of these incidents; only alcohol accounts for more. The year 2000, for example, witnessed more than 12,000 fatalities due to speeding as well as more than 700,000 persons injured. So much carnage should attract attention, and sometimes specific instances do�especially when multiple deaths occur, the circumstances are egregious (such as driving while intoxicated), or the perpetrator is famous. But absent dead or wounded victims, speeding passes under the radar of public scrutiny and, ordinarily, triggers no significant official response. Many scofflaws are serial speeders who need to be jailed before, not after, they snuff out lives. Regrettably, several factors conspire to make the slap-on-the-wrist approach very hard to change. Recently, Representative William Janklow, R-S.D., drew national headlines and a second-degree manslaughter charge when, doing 71 miles per hour in a 55 miles per hour zone, he ran a stop sign, barreled into a motorcycle and took the life of its rider. What did not incur any real publicity until this tragedy was the shameful record that he had amassed in the past decade: seven or eight prior accidents and a dozen speeding citations, one for going 25 mph over the speed limit. For the tickets he received fines of approximately $1,000-on average, less than $90. Apparently, his license was never revoked or even suspended. Send a real message Predictably, the minor dent in his wallet made little impression on the congressman. In 1999, remarking on what he plainly viewed as a mere foible, he noted that he always pays his tickets. He added, however: “If someone told me I was going to jail for two days for speeding, my driving habits would change. I can pay the ticket, but I don’t want to go to jail.” Janklow’s comments suggest that if the state took speeding seriously, imposing prison at least on the chronic and worst offenders, perhaps “solid citizens”-those who consider being locked up scary or shameful-might floor the gas pedal less often. (Notably, even if Janklow, a former governor and attorney general of South Dakota, was cut some slack by the authorities, noncelebrities also receive very lenient penalties as a rule.) Reform, to be sure, will not come easily. Americans believe faster is better in cars, food and communications, just to cite a few examples. By the same token, we disparage the slow, including poky computers or old-fashioned “snail mail.” Drivers, in particular, tend to regard posted limits, especially on highways, as an unjustified inconvenience. Most drivers admittedly speed; few get caught (and fewer still end up in accidents when they do). In addition, many of the people stopped now receive only warnings rather than tickets. Tickets, moreover, rarely result in a large fine or a lifted license. Expectations of lenient treatment, coupled with the view that “everyone does it,” have fueled the perception of speeding as a “noncrime”: Drivers identify with the speeder, not the cop. Tougher laws and enforcement policies are, therefore, difficult to sell politically. From a broader vantage, raising speeding to real-crime status poses issues that imbue a perennial debate in the criminal law: To what extent should the law punish risk creation not leading to tangible harm? Abstract justice may counsel against imprisoning solely the William Janklows, who get into fatal accidents, while letting off lightly the luckier majority, whose speeding habits cause no damage. Yet as the scholar James Fitzjames Stephen noted: “Both certainly deserve punishment, but it gratifies a natural public feeling to choose out for punishment the one who actually has caused great harm.” The flip side is that the same sentiment may, in practice, beconducive to nullifying penalties viewed as excessive for “mere” speeding. Finally, Janklow’s remarks to the contrary notwithstanding, the prospect of jail may not, at least in the short term, produce as much marginal deterrence as is hoped. After all, even the potential for deadly results has failed to persuade the legion of speeders to kick their habit. Despite these problems, proponents of a stricter approach to speeding need not give up. Instead, they should simply adopt the intuitive, modest goal of sending the “high enders” to jail for a short period of “shock therapy.” (The general public will identify less with drivers who grossly violate limits and thus will likely tolerate this strategy.) Recidivists should be targeted, too. In the long run, forcing such speeders to “do the time” even when their conduct claims no victims, ought to send the message to others that speeding is, indeed, a real crime with real consequences. Vivian Berger, professor emerita at Columbia University Law School, is an NLJ columnist.

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