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Isn’t Drinking Against the Law?

Three different letters came in yesterday about upholding the law: one was from a staff member at DHMC, and two came from faculty members at the College:

1. “While I think the actions taken against the underage student caught drinking are ridiculous I also think that the punishment is fair. Underage drinking IS illegal. Should not all crimes be punished? Why don't the brilliant student minds at Dartmouth take up a campaign to lower the legal drinking age?”

2. “Oh c’mon Joe, should we really be teaching Dartmouth students that they are above the law? Is it a sign that someone “hates students” when they report illegal behavior to the police? Do you also think other misdemeanors (say, snagging a bicycle or spray-painting the front of a local business) should not be reported?

“The ‘boys will be boys and we’ll just drive ‘em underground’ argument is so, as they say, lame. If it were a valid argument, it would more widely applied: don’t punish shoplifting because we’ll only make more clever thieves; don’t punish simple assault because then they’ll only assault people in the privacy of their own home. Any educational institution worthy of the name does not condone fraud (which is what presenting a fake id is) and should applaud someone who holds students accountable for their behavior (especially potentially risky behavior, which seemed a real, whether or not realized, possibility in this case), not pillory them as ‘hating students.’”

3. “Of course you are right to signal the stupidity and wrongfulness of staffer’s obsessive pursuit of this freshman, as well as the other violations of rights that followed. But your remark “Yes, yes what he was doing is illegal, but …” is a problem in its own right. Do we really want to license a whole generation of students to break the law whenever they wish? The liquor laws and 21-year old age limit are ridiculous. Let’s work to change those laws, not warrant individual lawbreaking.”

We’ve been over this ground in the past. The appropriate response to my riled up correspondents involves a more supple, or perhaps, a more dynamic view of the law. As a police chief once stated to me, “The law is what the police say that it is.” That is not to imply that the police can invent laws that don’t exist, but rather, the statement means that in a functioning democracy there is some room for the police to determine which laws are enforced. The term of art is police discretion.

We live with the phenomenon every day: for example, the de facto speed limit on most interstates is 75-80mph, even though this speed is 10-15mph over the posted limit. I had a NH state trooper once tell me outright, “”Sir, the limit is 65; keep it under 80.” In a previous post, I wrote:

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.

As regards alcohol, like so many other campuses, the town police in Middlebury, Vermont have made a policy choice that reflect society’s unwritten/unspoken — but very real — consensus: Middlebury Chief of Police Tom Hanley told me on October 1, 2009 that, “Middlebury College has asked us not to come onto their campus and we respect that. Frankly, we have better things to do.” During the years 2009, 2010 and 2011, Middlebury saw a total of two arrests for alcohol violations:

Middlebury Arrests 2009-2011.jpg

As this space has reported, the police in the various Ivy cities and towns adhere to the same socially accepted standard. In 2011, Harvard, Princeton, Brown and Columbia had no arrests for underage drinking; Cornell had 4 and Penn had 5. In contrast, Yale ramped up its enforcement of the law during that year, and the local police arrested arrests Yalies, the same number as at much smaller Dartmouth (in 2010 we had 84 arrests and in 2009 there were 110 arrests.)

At most campuses, the police have decided in the exercise of their discretion that 18-to-20-year-old students may drink, even though an 18-year-old high school senior living nearby cannot. To my mind, that is how things should be. First off, it is impossible to stop college students from drinking, no matter how draconian the enforcement (see the last decade in Hanover for proof of that proposition), and secondly, on a residential campus, the crime of underage is essentially a victimless one — especially when consumption is in a local restaurant, as was the case with the Freshman.

So, are we teaching Dartmouth students that our laws can be flouted by allowing them to drink on campus? No. We are simply teaching them that the law of the land is enforced with an intelligent flexibility.

Addendum: A little more than three years ago, I wrote a post on exactly how the underage drinking statues would be drafted if we wanted the written law to reflect reality.

Addednum: a lawyer-to-be writes in:

A quick response to the first individual who responded to you. Underage drinking in the State of New Hampshire is a violation, not a crime. So any individual who erroneously conflates the act of underage drinking with crimes such as embezzlement and murder is not providing a legitimate standard. Other NH violations include unauthorized fishing, or as you noted, speeding. The law is harsher in some areas more so than others for a reason. In this case, it’s because drinking and just-happening-to-be-a-lower-age does not directly cause harm to others.


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