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Criminalizing Communion?: Problems with Underage Drinking Bill

Updated: Apr 15

House Bill 1586 passed the Arkansas House Thursday by a vote of 56-35. This is a well-intentioned bill that attempts to solve the problem of underage drinking. Unnfortunately, it’s so expansive that it produces a laundry list of perverse consequences.

Here’s how the bill works: if you have control over private property, and you allow anyone under 21 who isn’t your relative to drink alcohol, or just to stay on the property after they drink alcohol, you’ve committed a class A misdemeanor.

However, if you’re not on the property, you are free from criminal liability, as long as you’re not “present and in control of the private property at the time the consumption occurs.”

Let’s examine how this works in a bit more detail:

If the person who controls the property — call her “Mom” — sticks around while underage drinking occurs, she’s committed a misdemeanor.

Suppose, on the other hand, Mom hears a knock at the door and sees her daughter welcome her best (underage) friends Jane and Mary in; if Mom announces that she’s going across town to catch the 7:15 showing of “Bride Wars” and drives off, she’s free from criminal liability if underage drinking occurs.

Does this bill give an incentive for unmonitored underage drinking to occur? I think so, and I also think that the law would be better if it went the other way — that is, to give an incentive for an adult to stick around and keep an eye on the problem, rather than leave. I understand that a couple of teenagers sitting around drinking beer is hardly an ideal situation, but this new bill makes the problem much worse by discouraging adult monitoring of any kind.

In any case, Mom isn’t out of trouble yet. Suppose she comes back from “Bride Wars” and sees Jane drinking something she shouldn’t. Under this bill, Mom will be a class-A misdemeanant if she allows Jane to remain on the property.

I tend to think that a legal requirement to order a child off your property has its own set of problems. Maybe Jane has a cell phone and can call for a ride, or maybe she can walk home. I hope so, and I hope she hasn’t had much to drink. And I hope it’s not too late at night — especially once the new law we voted for last week kicks in and it’s a ticketable offense for a minor to drive from 11 p.m. to 4 a.m. Maybe if she has a car outside, her best bet is just to lock the doors and sleep it off.

There are other problems. Remember, the bill says that anybody who exercises control over private property who allows someone under 21 to consume alcohol on that property has committed a crime. This will be a big problem for some religious communities, given that as far as I can tell we have just criminalized children’s Communion. (This is a traditional Catholic practice in which a child takes a tiny, ceremonial sip of wine.) Similar rites take place in some Jewish, Episcopalian, and Lutheran congregations — and probably others, but I am just a lawyer and legislator and not a scholar of comparative religions. But there’s reason to be nervous when it looks like the state legislature is criminalizing traditional religious practices. (You can read the bill text in its entirety here — link opens as PDF file.)

Finally, the problem this bill’s trying to solve is already addressed in current state law. It’s already a criminal offense to “give, procure, or otherwise furnish” alcohol to someone under 21 (and that law, unlike this one, exempts religious ceremonies). It’s also a criminal offense to contribute to the delinquency of a minor. Both of those offenses, already on the books, carry harsher criminal penalties than this bill. In short, the House is once again being tough on crime by legislating against a problem that has already been addressed.

I spoke against this bill on the floor of the House. I wasn’t successful. One of my favorite legislators, the independent-minded Democratic Rep. Pam Adcock, stood up after I spoke and asked the House if this bill could criminalize having a drink with your 20-year-old nephew after he just got back from military service in Iraq. She was right, so was I, and so were about 33 other legislators. Regrettably, we were outnumbered.

After we voted, the bill’s sponsor came over and assured me that the bill would be amended in the Senate to fix some of its problems. I tend to think that the only way to fix this bill’s problems is to run it through a shredder, incinerate the remains and bury what’s left in a big hole.

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