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Alcohol Enforcement: The Better Part of Power is Discretion*

Seventh in an eight-part series: 1, 2, 3, 4, 5, 6, 7, 8.

W H Crane ias Falstaff-Photo-B&W-Resized.jpgHow much freedom do the Hanover Police have to ignore non-vehicular student violations of the alcohol laws, like the tolerant police in Middlebury, Vermont? Well, it turns out that all laws are not equal — in that they are not equally enforced.

In fact, there is a well developped literature on the subject of police discretion: the freedom of police to ignore violations of an activity that is formally forbidden by the law. In his seminal work “Broken Windows” and Police Discretion, police reformer George Kelling, a part-time resident of the Upper Valley, cites the work of Warren LaFave (1965) and Kenneth Culp Davis (1969) who listed three possible criteria for what they called “nonarrest”:

— Police believe the legislature did not desire full enforcement.

— Police believe the community wants lenient or lax enforcement.

— Police believe other duties are more urgent or important.

A little reflection leads to numerous examples of the exercise of police discretion beyond the policies of the Middlebury police. As recently as 2005 Virginia had laws on the books outlawing fornication; Texas law forbade sodomy until the Lawrence case in 2003; and in Connecticut adultery was illegal and could theoretically result in a prison sentence until early in the 1990’s — yet these laws were rarely enforced, if ever.

Through the mid-1960’s, the sale of contraceptives, and even their use by married couples, was formally forbidden in Connecticut, but in order to elicit the fine that led to Griswold v. Connecticut, campaigners for personal privacy had to open a shop that so egregiously flouted the law that the police had no choice but to act.

Closer to home, any local policeman will tell you that driving in the low 70’s on an interstate highway will not get you in trouble, and if you take a whiff of the air at a Dartmouth rock concert, you will understand that the personal use of certain illegal substances has not been punished for decades by Safety & Security and the Hanover Police. [Full disclosure: I didn’t inhale]

A democratic society uses police discretion as a safety valve when a consensus develops that some laws are not rational. Call it the rule of common sense: safety and other considerations can be given priority over legal interpretations that produce unduly harsh results.

Could the Hanover Police invoke police discretion to overlook the consumption of alcoholic beverages by undergraduate students in a residential college setting? The answer is yes, given that just like Middlebury, every other Ivy League municipal police force already does so. Chief Giaccone’s officers would be on solid legal and precendential ground if they cut Dartmouth’s undergrads some slack. How about it, Chief?

*With apologies to the Bard. In 1 Henry IV, Part 1, Act 5, Scene 4, Falstaff says: “The better part of valor is discretion, in the which better part I have sav’d my life.”


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