THREE years ago, the Virginia General Assembly followed New CarHampshire's lead banning "internal possession" of alcohol. According to The Washington Post, Vermont, Arizona, Utah and Missouri have passed similar legislation. These states, abandoning common law legal tradition, have opted to penalize underage persons having drinks in their systems with charges equivalent to those who have a drink in hand. Generally, the legal definition of possession has not been pushed so far as to include so called "internal possession." These laws and the application thereof carry neither the moral weight nor the deterrence value requisite to justifying their philosophically problematic status.
First of all, "internal possession" laws are both historically and philosophically questionable. Historically, the internal possession of drugs has not been considered grounds for a possession charge; according to The Washington Post, expanding the definition of possession to account for the content of a person's bloodstream represents a "break with legal tradition" and furthermore remain "relatively uncommon."
The main philosophical problem was implicitly underlined by University Law Prof Richard Bonnie who said, "When the law makes the offense simply a biological fact, of simply having a certain chemical in one's body, that steps over a line in the law that has been traditionally accepted." The key here, as Bonnie points out, is that common law has traditionally not been accepting of laws outlawing "biological facts." Specifically, Anglo-Saxon common law has typically required acts to be voluntary in order to be illegal.
In this scenario, underage persons are being arrested for involuntary acts. While the act of getting drunk (possessing alcohol and willingly pouring it down one's throat) is a voluntary act, the act of being drunk is not voluntary. Being drunk is the consequence of involuntary processes that occur inside one's body. The point is, no person chooses to be drunk: one only chooses to get drunk. Therefore, only her choice to get drunk should be grounds for legal punishment; punishing one involuntary status as a drunk person, while seemingly similar on face, is actually philosophically unsound.
However, as Eddie Edwards, New Hampshire's chief of liquor law enforcement pointed out, without illegalizing internal possession, individuals could oftentimes not be charged with anything. When an underage party would be busted, partiers would throw the evidence away and run. The result: Only a few individuals could be nailed for possession or active consumption. Therefore, the internal possession law does give law enforcement officials some teeth by which to penalize underage drinking.
When analyzing this argument, there are at least two major grounds for analysis. First, does the aim of the law carry significant moral weight? Second, will the law bring significant deterrence value?
The problem which the law seeks to rectify does not carry significant moral weight. Underage drinking is a social problem rather than a moral one. In fact, many European countries have 16 as the legal drinking age and cannot reasonably be labeled as immoral nations. However, in the United States, underage drinking mainly presents itself as a problem in the form of drunk driving. There are, rightfully so, aggressive drunk driving-prohibitions in all 50 states, and thus the new internal possession laws do nothing for enforcing laws against drunk driving.
The other problems associated with the status of being drunk are primarily of a criminal nature: assault, public urination, etc. But yet again, all of these are already under legal care: they can be punished without internal possession laws. Therefore, underage drinking is mala prohibita, that is, wrong because it's illegal, not because it's immoral. Because the crime it seeks to punish has an inherent status as a mala prohibita crime, it would be difficult to effectively argue that internal possession laws have significant moral weight.
Nonetheless, a proponent of such laws can argue, as Eddie Edwards has, that they provide deterrence against underage drinking. Thus, even if the law does not carry significant moral weight, it helps enforce a law that a strong majority of Americans support. This argument would be effective only if it could prove that the law actually served as a deterrent.
Historically, laws preventing drug use, such asProhibition, have been wildly ineffective and, arguably, counter-productive. Laws against underage possession and active consumption have thus far been weak: One conservative study indicates that 44 percent of college students participate in binge drinking. It is highly unlikely that an internal possession law carries some sort of special deterrence value that distinguishes it from traditional possession and consumption laws.
As more and more states consider internal possession laws, they should also consider the philosophical problems inherent in them. In analyzing the moral weight and deterrence value of such laws, it would be difficult for anyone to reasonably argue that these laws have a place in state law books. They are, instead, offensive to our common law rights and contrary to the common sense definition of a crime that traditionally requires and should continue to require a voluntary act.
Sina Kian's column appears Tuesdays in The Cavalier Daily. He can be reached at skian@cavalierdaily.
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