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"Criminalizing [Children's] Communion?"

The Arkansas House of Representatives just passed An Act to Provide Criminal Liability for a Social Host Who Knowingly Serves Alcohol to Persons Under the Age of 21 ...:

3-3-219(a)(1) A person who exercises control over private property shall not knowingly allow a person under twenty-one (21) years of age who is not a child or ward of the person to:
(A) Consume alcohol on the private property; or
(B) Remain on the private property if the person under twenty-one (21) years of age consumes an alcoholic beverage on the property.
(2) This subsection applies only to a person who is present and in control of the private property at the time the consumption occurs.

(b)(1) A first violation of this section is a Class C misdemeanor.
(2) A second violation of this section is a Class A misdemeanor.
(3) A third or subsequent violation of this section is a Class D felony.

But as my friend Dan Greenberg, an Arkansas state legislator, points out:

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....

[Also,] I tend to think that a legal requirement to order a child off your property [see (a)(1)(B)] has its own set of problems. Maybe [the child] 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....

This will [also] 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....

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....

I spoke against this bill on the floor of the House. I wasn't successful....

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.

theobromophile (www):
Wouldn't another problem be the sheer silliness of this law? If a parent were out when the kids were drinking, and returned to find them drunk after having consumed every lost drop of liquor in the house, he wouldn't be liable under this law. If, however, a person kept drinking as the parent pulled into the garage, the parent may be liable. Or something.

Unless I'm really confused, though, there would be a Free Exercie right that would trump this law, at least with regards to Holy Communion. In the Catholic Church, the Eucharist is said to be the body of Christ, and the wine, the blood; you can't simply omit one part of those and still have a good Catholic ceremony. (Real Catholics can correct me on this point, or elaborate as necesary.)
3.17.2009 1:42am
Fub:
Arkansas' legislature is at least as prone to moral panics and inutterably stupid "think of the children" rationales as any other.

Plenty of counties still vote dry and drink wet. I lived in some. When I was in high school, it was easy enough to drive to OK for a few cases of 3.2 Coors or to Texarkana for most anything. Parents had nothing to do with it.

I still know a newspaper publisher in AR who just happens to be Catholic. Maybe he'll decide this piece of legislative balderdash is worth raising a ruckus. I doubt he wants to be prosecuted for taking his granddaughter to Communion. Come to think of it, we made plenty of booze runs together back in the day.
3.17.2009 2:11am
PlugInMonster:
It's always "for the children".
3.17.2009 2:15am
Wilpert Archibald Gobsmacked (mail):
Another easy lesson on "How to make politicians 'feel good'" Not effective, just good. These guys have been taking lessons from the CA legislature, haven't they? 'Fess up, now.
3.17.2009 2:32am
Bill Poser (mail) (www):

In the Catholic Church, the Eucharist is said to be the body of Christ, and the wine, the blood; you can't simply omit one part of those and still have a good Catholic ceremony.

I'm not a Catholic, but I'm pretty sure that the official view is that both the bread and the wine are the body and blood of Christ, so in spite of the obvious symbolism, either one is sufficient by itself. In fact, the wine has long been reserved to the priest; the laity receive only the bread.
3.17.2009 3:44am
Bill Poser (mail) (www):
Oops, I should qualify the last bit: the laity receive only the bread in many churches, but not all.
3.17.2009 3:47am
Dan M.:
Does this law even apply exclusively to adults? Is a teen left at home by his parents considered to be exercising control over their property so that he would be criminally liable if his friends come over to his house and drink alcohol, whether they brought it themselves or raided the parents liquor cabinet? What about an 18 year old college student who drinks with a friend in his dorm room or apartment?
3.17.2009 4:08am
epeeist:
First, as a practicing Catholic: either species (body or blood) is "sufficient" as a prior poster put it. I believe Lutherans consider both species necessary to be complete. In the church I go to (and from what I've read is what is supposed to be done generally) some people with e.g. gluten allergy who can't receive the host therefore go up to receive communion in the other species. At the church I go to on certain special feast days communion in both species is offered to the congregation as a whole, and at one Sunday mass it is almost always offered (the reason I've been told for usually limiting it to the host is a combination of numbers of people who don't like drinking from the same chalice, having enough trained ministers of the eucharist in addition to the priest, etc. -- it is NOT a matter of being reserved to the priest).

Second, aside from all the other problems noted with this law (including having to kick out inebriated people!), at least it recognizes an adult can serve his/her child alcohol -- but only on that parent's private property! Not only can't that adult allow a child to receive communion, in the secular arena if say one has gone to visit grandparents, it's their property so if one serves one's children they now have to start kicking out their grandkids, or if one visits the neighbours even consenting parents can't allow their children to drink there or the neighbours are guilty under this law (while the permissive parents are not -- not that they should be, it's just additional ridiculousness).

Just to think of the most ridiculous thing that comes to mind, if someone goes to the emergency room of a hospital (that's not state-run, i.e. private property) and starts drinking alcohol in view of a security guard (or whoever would be considered in control), trips, falls, and is knocked unconscious, to allow that person to remain on the hospital property to be treated would seem to violate this law...
3.17.2009 4:24am
Ricardo (mail):
From arkansasnews.com:

Rep. Pam Adcock, D-Little Rock, asked, "If you have a nephew or a niece that's 19, 20 years old and they came back from Iraq and wanted to sit on the back patio and have a beer with you and you were caught, would you be charged?"

"I don't think the intent at all is to come on someone's patio and arrest someone because they're having a beer," said Rep. John Lowery, D-El Dorado, a supporter of the bill. "I don't think also they'd bust in on communion or a religious service. The problem is parties, beer kegs, those types of things."


Translation of Rep. Lowery's statement: "I realize this bill could be abused by overzealous police and prosecutors and could have perverse consequences. I just don't care."
3.17.2009 5:03am
TruePath (mail) (www):
I really really really want some kind of structural mechanism or court review to restrict prosecutorial discretion.

In particular this kind of awful bill is the result of the temptation that wide prosecutorial discretion creates. More or less it tempts the legislature to create bills that sweep broadly and to count on prosecutors not to prosecute the 'reasonable' cases. In particular I think the assumption here is that prosecutors won't bring charges against communion or uncles who let their nephews have a half glass of wine but will against parents who run keggers.

Locally that may be all fine but it transforms the society from one based on the rule of law to one based on the rule of prosecutor or public whim (pressure on prosecutors). This is how we end up with situations where teen couples of the same age have sex and only the boy gets screwed.

---

Prosecutorial discretion is important but there should be some way to limit the percentage of cases where the prosecutor can decide not to pursue despite a strong case. Laws that the prosecutor chooses not to enforce in most cases simply shouldn't be possible to enforce against anyone.

This would force the laws to actually outlaw what they mean to outlaw. Thus no more laws against "pictures of naked children" or whatever else is targeted at the latest boogeyman on the assumption it won't be enforced against reasonable people.
3.17.2009 7:00am
Wallace:
I'm only guessing, but I'd bet the Arkanasas--like most states--probably as a "de minimis" exception either written explicitly into the code or one that is long recognized by state courts. The fear that adults who give children a sip of wine of champagne at some function will not be hauled off to forty years hard labor may be unfounded.
3.17.2009 7:38am
Kharn (mail):
Bill Poser:
"Oops, I should qualify the last bit: the laity receive only the bread in many churches, but not all."

Catholic Mass always includes making both the bread &wine available for everyone eligible to recieve Communion.
3.17.2009 8:37am
rick.felt:
Unless I'm really confused, though, there would be a Free Exercie right that would trump this law, at least with regards to Holy Communion.

It's a law of general applicability that's not intended to restrict the religious practices of Catholics or any other group that uses alcohol in its ceremonies. So it's just a stupid law, not an unconstitutional one.
3.17.2009 8:42am
corneille1640 (mail):

Bill Poser:
"Oops, I should qualify the last bit: the laity receive only the bread in many churches, but not all."

Catholic Mass always includes making both the bread &wine available for everyone eligible to recieve Communion.

Kharn,

That's my understanding, too. I was raised Catholic and never heard of the wine being reserved solely for the priest. I admit there's a lot about Catholicism and how other Catholics worship that I don't know (and I'm no longer a practicing Catholic). But the charge that only the priests may partake of the wine/blood of Christ is a new one to me.
3.17.2009 8:44am
Fugle:
In the Catholic church(s) I attended in my youth, the Blood of Christ (wine) was reserved to the priests; this changed in the late 80's when both the Body and Blood were made available to all.
3.17.2009 9:10am
TruePath (mail) (www):

It's a law of general applicability that's not intended to restrict the religious practices of Catholics or any other group that uses alcohol in its ceremonies. So it's just a stupid law, not an unconstitutional one.


Yes, it wouldn't be a constitutional claim but the federal RLUPA (or some acronym like that) statute would preempt the state law in this case. It's pretty straightforwardly analogous to the Ayahusca case with the weird psychedelic church.
3.17.2009 9:14am
Eugene Volokh (www):
TruePath: RLUIPA only applies to land use (the LU) and institutionalized persons (the IP), chiefly prisoners. The federal RFRA, which would have mandated religious exemptions more broadly, has been held unconstitutional as to state laws, in City of Boernes v. Flores (1997). The hoasca case you have in mind had to do with the federal RFRA being applied to a federal drug ban.
3.17.2009 9:33am
Matt (mail):
In the Roman Catholic Church, Communion under both species (both the Body and Blood of Christ), is NOT a traditional practice.

Before Vatican II in the 1960s, the faithful received only the Body of Christ, while the priest celebrating the Mass received both the Body and Blood.

The practice of Communicants receiving both species became widespread in the 1980s.
3.17.2009 9:38am
Melvin H.:
This law sounds to me like the Arkansas version of the CPSIA controversy over minibikes, children's books, toys, clothes, resold items, etc.:

> Law proposed to correct "loophole" in existing laws, usually after "big problem" comes to a legislator's attention ("too much time on my hands" syndrome).

> Legislature passes feel-good/"it's for the children" law, likely without members reading it.

> Someone outside does read it and realizes that said law overreaches badly.

> People complain about it and/or ask questions about it to legislature.

> Person(s) who wrote law assure public that "it'll be fixed--later" (of course, it never is).

> Penalties are harsh compared to the act, both civil and criminal, with the [unwritten] law of unintended consequences heavily applying here (i.e. "What were they thinking when this law was passed!!!").

> Laws already on the books can do the job--just enforce the existing laws!

> The best idea is to scrap/repeal the law entirely, followed by excoriating the person(s) who wrote the law and those who delayed, delayed, delayed changing/repealing that law. (How about voting them out at the next election, too!)
3.17.2009 9:53am
Blue:
In the Episcopal church communicants receive both the wine and bread and have since I've began taking Communion as a child (which would put the practice at least back to the late 1970s). (In fact, children's Communion is probably more common in the Episcopalian tradition since the only requirement is to be baptized in Christ, not to have gone through Cathecism). It would seem utterly strange to me for someone at the rail to refuse the wine...although some (older folks and the sick) will often have the wafer or bread dipped in wine rather than drink from the communal chalice.
3.17.2009 9:56am
Houston Lawyer:
In my last church, Missouri Synod Lutheran, after consecration, the communion wine was considered the Blood of Christ. Any that was left over at the end of the service had to be consumed by the elders and the minister on duty. The wine we used was strong and generally of awful quality, being made at some winery that made only communion wine. There was many a Sunday afternoon when I had to go home and sleep off the Blood of Christ. We had discussions among the elders about what to tell a cop if we were pulled over after the service. Fortunately they don't generally do DUI checks at noon on Sunday.
3.17.2009 10:00am
Sk (mail):
Why is this even controversial?

1) It is illegal for people under 21 to drink.
2) it is illegal to allow others (minors, people under your control, people on your property, etc) to do illegal things, (for example, if I am in a house, and my 18 year old son is torturing somebody, and I know about it, I am breaking the law if I allow it to continue. If my 17 year old daughter is peddling stolen goods, and I know about it, am I not 'aiding and abetting' or something?).
3) It is illegal to allow underage drinkers to drink (see 2), above).

????

Sk
3.17.2009 10:09am
Clayton E. Cramer (mail) (www):
I am a bit surprised that this is controversial, too. There is an enormous problem with underage drinking (at least everywhere that I have raised kids). Some parents seem to think that it's okay if the kids are drinking or smoking pot as long as they are supervised. No, it really isn't. Both drugs are significant risks for adults, and much more so for developing brains.
3.17.2009 10:14am
Joe Kowalski (mail):

Fortunately they don't generally do DUI checks at noon on Sunday.


A couple of years ago a local sheriff's deputy decided to get cute on his Sunday morning shift. He pulled over a guy who was leaving Mass, had him take a breathalyzer, and his sip of "the Blood of Christ" 3 minutes earlier was enough to have him blow just past a .08. The guy protested, and when he was taken in to the sheriff's station, was fortunate enough to have a sympathetic church member working there let him know he could insist on a blood test. This was done and the matter was dropped, but that deputy was quietly reprimanded.
3.17.2009 10:20am
comatus (mail):
Thank you all for a thoughtful and considerate review of this issue, although you have not done a thing to clear up the fine points of Roman Catholic theology. This is why I keep a priest on retainer, but only call my lawyer when I need him.

But I do understand the Missouri Synod a little better now.
3.17.2009 10:22am
Clayton E. Cramer (mail) (www):

A couple of years ago a local sheriff's deputy decided to get cute on his Sunday morning shift. He pulled over a guy who was leaving Mass, had him take a breathalyzer, and his sip of "the Blood of Christ" 3 minutes earlier was enough to have him blow just past a .08.
If this is true, it means that breathalyzers are completely useless. There isn't enough alcohol in the amount of wine that anyone gets for Communion to impair even me, the lightest of lightweights.
3.17.2009 10:22am
JohnEMack (mail):
Under Catholic doctrine, the consecrated cup is considered to be the transubstantiated blood of Christ, although it has all its physical attributes. It would be interesting to try the matter to a jury in a Catholic area and argue that the substance is not alcohol.
3.17.2009 10:23am
blcjr (mail):
Clayton, Sk...

I don't think it was controversial, per se. As Dan Greenberg pointed out, adequate laws are already on the books. Why do we need another?

What problem is this law going to solve that cannot be dealt with by laws already on the books?

And will this law make it easier to for prosecutors to abuse their "prosecutorial discretion" compared to existing law? Do we need to be giving prosecutors greater power these days, or are their enough examples of prosecutorial misconduct that it is reasonable to be concerned about this?
3.17.2009 10:29am
mem5:
If this is true, it means that breathalyzers are completely useless.


This sounds like an urban legend to me also. A random congregant isn't going to get much if any alcohol in a communion sip or intinction (dipping of bread into the chalice). There is only one way that somebody could get more than that in the regular conduct of the Mass. If they were an "Extraordinary Minister" somebody designated as a server of communion when there are too many communicants and not enough priests sometimes they are asked to consume the remaining wine/blood that was blessed for communion. The bread/body can be put back in the tabernacle for the next mass but the wine consecrated at that mass must be consumed or disposed of in a special way. If there are multiple EMs and a priest this shouldn't amount to very much alcohol per unless they were way off in the estimates and blessed way too much wine. If the quantities were too large, the would probably opt for the disposal rather than the consumption method.
3.17.2009 10:43am
sdfsdf (mail):
Practically, the law's fine as it is. First, there is prosecutorial discretion and a good prosecutor won't prosecute an evil or unconstitutional case. Second, if he does, the courts will dismiss an obviously unconstitutional case like a communion prosecution.

There is a jurisprudence question: Is it better to rely on the prosecutors and courts, or better to clutter up the law with exceptions and qualifications?

On communion in both kinds. The Utraquists mounted a major rebellion against the Roman church with allowing the laity to drink the wine as their main point. The Chruch changed its mind in the 20th century, but Utraquism was condemned in the Council of Constance thus:

From the h decrees of the Council of Constance: ttp://www.newadvent.org/cathen/15244b.htm, "although this sacrament was received by the faithful under both kinds in the early church, nevertheless later it was received under both kinds only by those confecting it, and by the laity only under the form of bread. For it should be very firmly believed, and in no way doubted, that the whole body and blood of Christ are truly contained under both the form of bread and the form of wine. Therefore, since this custom was introduced for good reasons by the church and holy fathers, and has been observed for a very long time, it should be held as a law which nobody may repudiate or alter at will without the church's permission. To say that the observance of this custom or law is sacrilegious or illicit must be regarded as erroneous. Those who stubbornly assert the opposite of the aforesaid are to be confined as heretics and severely punished by the local bishops or their officials or the inquisitors of heresy in the kingdoms or provinces in which anything is attempted or presumed against this decree, according to the canonical and legitimate sanctions that have been wisely established in favour of the catholic faith against heretics and their supporters. "
3.17.2009 10:44am
ShelbyC:

it is illegal to allow others (minors, people under your control, people on your property, etc) to do illegal things, (for example, if I am in a house, and my 18 year old son is torturing somebody, and I know about it, I am breaking the law if I allow it to continue.


What law are you breaking? I don't think it's illegal to "allow" people on your property do do illegal things. If my friend smokes a joint in my yard, am I committing a crime?
3.17.2009 10:51am
http://volokh.com/?exclude=davidb :

There was many a Sunday afternoon when I had to go home and sleep off the Blood of Christ.

Perhaps this is one of the things he died for? Who are we to say he didn't?
3.17.2009 10:54am
David M. Nieporent (www):
Practically, the law's fine as it is. First, there is prosecutorial discretion and a good prosecutor won't prosecute an evil or unconstitutional case. Second, if he does, the courts will dismiss an obviously unconstitutional case like a communion prosecution.
I don't know if that's parody or ignorance.

1) There are lots of prosecutors who aren't "good."

2) There are lots of bad prosecutions that aren't "unconstitutional."

3) Like a communion prosecution, which is not "unconstitutional" at all.
3.17.2009 10:55am
armchairpunter:
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) decided
"the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use."
I do not know the extent to which the subsequent federal religious freedom legislation might have mitigated the effects of Smith. To the extent the primary holding stands, it is inconceivable that a court, in reviewing the constitutionality of the state law, would give underage communion wine consumption a pass in view of the clamp down on peyote.
3.17.2009 10:55am
David M. Nieporent (www):
Why is this even controversial?

1) It is illegal for people under 21 to drink.
No, it isn't. In many places, including Arkansas, it is entirely legal for people under 21 to drink under the supervision of a parent or guardian, or in the course of a religious ritual.

But that has nothing to do with anything anyway; the fact that something is illegal does not mean that any law which somehow touches upon that something is a good law.
2) it is illegal to allow others (minors, people under your control, people on your property, etc) to do illegal things, (for example, if I am in a house, and my 18 year old son is torturing somebody, and I know about it, I am breaking the law if I allow it to continue. If my 17 year old daughter is peddling stolen goods, and I know about it, am I not 'aiding and abetting' or something?).
Where on earth did you get these ideas? Although there are circumstances where one can get in legal trouble for the crimes of another, pretty much most of what you said here is wrong. (And the very fact that they're passing this law helps illustrate that point.)
3) It is illegal to allow underage drinkers to drink (see 2), above).
Again, no.
????
!!!! As explained above, it's controversial because (a) it would encompass many things which it ought not to encompass under any circumstances (such as communion), (b) it would criminalize many trivial activities, such as serving a glass of wine to one's child with dinner, and (c) it would provide perverse incentives, such as (1) encouraging a parent to not supervise their children's drinking, and (2) forcing people to drive drunk.
3.17.2009 11:08am
David M. Nieporent (www):
1) It is illegal for people under 21 to drink.

No, it isn't. In many places, including Arkansas, it is entirely legal for people under 21 to drink under the supervision of a parent or guardian, or in the course of a religious ritual.
In fact, to go further, it is legal in many states for people under 21 to drink even without a parent. Purchase and possession are illegal, but drinking is not.
3.17.2009 11:12am
random Catholic:
It's possible that a Free Exercise challenge could still work for Communion. Smith left the door open for hybrid challenges that combined a Free Exercise challenge with one under another right, such as a parental right to direct your child's upbringing under Pierce. This was to avoid overruling Yoder, which allowed the Amish to yank their kids from school at 8th grade rather than age 16.

So if I, as a parent, want my kids to receive communion, I have that hybrid, which the Smith party didn't. The problem, of course, is that it suggests that the Native Americans adults can't use peyote, but could give it to their kids. Maybe the hairsplitter is that I can't give my kids something that's contraband for all, but can give them something, under "free exercise plus," that's otherwise legal for adults but illegal for kids?

I don't know, but there seems to be something in there.

Also, many States have their own global RFRA laws, but I don't know if Arkansas has one, and if a later in time, more-specific statute would trump it. But it seems in the nature of a RFRA to grant exceptions to all future laws, not just the ones in place when the RFRA was enacted.
3.17.2009 11:17am
sdfsdf (mail):
Perhaps instead of "good" prosecutor I should have said, "Prosecutor who wants to win re-election".
3.17.2009 11:18am
SeaDrive:
From the Arkansas Constitution:


24. Religious liberty.

All men have a natural and indefensible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect, or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other.


Interesting phrase: "indefensible right". I guess you have to go to law school.

I would hope that the second sentence would remove communion from the scope of the proposed law.
3.17.2009 11:20am
Smooth, Like a Rhapsody (mail):
After many years as a crim def atty or a prosecutor, I call BS on Kowalski's story above.

1. A cop does not carry a 'breathalyzer' in his car; he carries a little hand-held PBT unit. The results of a PBT, in and of themselves do not mean anything; in conjunction with field sobriety tests and other observational evidence, they can provide PC to arrest a person and take him to the station, where a 'breathalyzer' is offered.

2. A person would have to consume about 3 "drinks" (a can of beer or a single shot is a "drink") in the hour before the test to blow 0.08%.

Can machines malfunction?; sure. But far far more likely is that either the anecdote is completely apocryphal or the defendant was still metabolizing results of the previous night's bender.
3.17.2009 11:38am
Smooth, Like a Rhapsody (mail):
Sea Drive:

It's "indefeasible".
Maybe you should delay the application to law school
3.17.2009 11:45am
flashman (mail):
Here's a different take. In Colorado, where I live and work as a cop, Contributing to the Delinquency of a Minor (18-6-701) is a felony. In the resort town where I live (but do not work) there was an effort to pass a social host ordinance that effectively gave law enforcement the discretion of charging adults with local, non-felony charges (the ordinance only mandated fines, alcohol education, and community service as penalties) since it is unlikely the DA would ever seriously consider a felony charge (the police don't "charge" felonies, but only make recommendations to the DA's office) let alone a local jury ever convicting in anything other than the most grievous circumstances such as the death of a child. It's a permissive ski culture, but staunchly "progressively liberal" in its political outlook. In December the measure fell short of the needed majority on a 3-3 vote. One of the ordinance's early supporters on the council was out of town at the time. I guess that's a good way to avoid controversy. The most active community youth organizations were in favor of the measure while many of those speaking against the ordinance appeared to be clueless about the felony only option and wanted nothing to do with what many of them considered a gross violation of their "civil liberties" and, frankly, a challenge to their permissive life style. In essence, they didn't even support a measure that effectively de-criminalized the felony. I have had the opportunity to see first hand (three deaths in as many months) the results of under age drinking and have a hard time accepting that the parents, who have allowed if not encouraged parties on their property, and have subsequently done such a poor job in assuring the children's "safety" while drinking, should not be held accountable. But, because there's no graduated penalties (from petty offense on up) it's unlikely the most irresponsible parents will ever get the message until a child's death occurs. I consider myself a conservative with a strong libertarian streak, but find the "don't violate my rights" rantings of the over-educated, under-employed "ski class" offensive. With those "rights" come responsibilities that the most vocal opponents of the measure shun.
3.17.2009 11:49am
TruePath (mail) (www):
Yah, studies have shown that amount of alcohol in your lungs (hence deteceted in a breathalyzer) is going to settle to equilibrium with that in your blood in an extremely short period of time. Of course if someone were actually swishin alcohol around in their mouth while using the breathalyzer you might get a different result but short of that no.

I mean just think about it for a second. Our lungs are very efficent at exchanging oxygen and CO2 with the air. It would be very strange if the vapor pressure of alcohol (which readily passes through the lungs) in your lungs wasn't in equilibrium with that in your blood.

Sounds like a great excuse though
3.17.2009 11:52am
Doug Sundseth (mail):
"I really really really want some kind of structural mechanism or court review to restrict prosecutorial discretion."

Historically, that structural mechanism was the jury (or grand jury). (Not that it ever worked well, mind.) Discretion inheres in the jury as much as in the peace officer or in the prosecutor, and it is your civic duty as a member of a jury to exercise that discretion responsibly.

Judges and prosecutors, IME, disagree with that assessment of the historical record, but I find their arguments unpersuasive.
3.17.2009 12:04pm
SeaDrive:
It's "indefeasible".
Maybe you should delay the application to law school...


It was wrong in Widipedia: http://tinyurl.com/dl9luc

I have no interest in law school, or the practice of law.
3.17.2009 12:05pm
D.A.:
It won't make communion criminal. There's already a specific section in the same chapter that deals with the issue.
"3-3-202.Knowingly furnishing or selling to minor.

(a)(1)It shall be unlawful for any person knowingly to give, procure, or otherwise furnish any alcoholic beverage to any person under twenty-one (21) years of age. However, this section shall not apply to the serving of such to one's family or to the use of wine in any religious ceremony or rite in any established church or religion."
3.17.2009 12:10pm
karl m (mail):
"This is a traditional Catholic practice in which a child takes a tiny, ceremonial sip of wine"
I did take communion and i did not take any sip of wine. There is not such practice( not outside the USA). the only one taking wine is the priest
3.17.2009 12:18pm
David M. Nieporent (www):
D.A., I'm not sure how you come to the logic that an exception written into an old statute supersedes a newly-passed one that has no exception.
3.17.2009 12:20pm
billb:
karl m: I took wine at Episcopal communion services every Sunday after about my 10th birthday or so. Catholics are not the only ones that use wine in their celebrations.
3.17.2009 12:25pm
Bama 1L:
In the Catholic Church, the Eucharist is said to be the body of Christ, and the wine, the blood; you can't simply omit one part of those and still have a good Catholic ceremony. (Real Catholics can correct me on this point, or elaborate as necesary.)

As has been said, according to Catholic teaching, the blood contains the body and the body contains the blood. Therefore either is sufficient. The belief that one must receive in both kinds is called "utraquism" (both-ism) and is condemned. Late medieval dissenters such as Wyclif and Hus were utraquists. I believe many Lutherans and other Protestants hold an utraquist position.

Several commenters have remarked on the Catholic practice of reserving the blood (wine) for the clergy prior to Vatican II. Communion in both kinds appears to have been common until the twelfth century. Then the practice of reserving the blood became widespread. After Vatican II and related developments, American Catholics began offering communion in both kinds at every mass. But this is not the practice everywhere else; in most European countries, only the body is offered at most masses.

At one time reservation of the blood was justified in terms that exalted the clergy above the laity. This is no longer done; rather, concerns of practicality are cited. These include the risk of spilling the wine (especially after it has become the blood of Christ), the expense of obtaining sufficient quantities of wine and bringing them to mass, and the problem of disposing of unconsumed wine after mass. It must all be drunk up so that it does not go bad. I think all churches that use wine for their communion services teach this.
3.17.2009 12:28pm
Bama 1L:
D.A., I'm not sure how you come to the logic that an exception written into an old statute supersedes a newly-passed one that has no exception.

It's got a certain pragmatic appeal and sure sounds like something an actual court would do.
3.17.2009 12:35pm
hattio1:
sfdsfd says;

Perhaps instead of "good" prosecutor I should have said, "Prosecutor who wants to win re-election".


What about areas that don't elect prosecutors? What about areas that don't have a majority (or even a significant minority) of Catholics? What about areas that are the types of fundamentalists that preach Catholicism is the Great Whore of Babylon? I guess the Catholics in those areas are just screwed?
3.17.2009 12:46pm
The Cabbage (mail):
Communion in both kinds appears to have been common until the twelfth century.

The Orthodox (and eastern rite Catholics) only offer communion with the Body immersed in the blood, and everyone sharing from the same cup.
3.17.2009 12:47pm
trad and anon (mail):
What an awful law. We should be encouraging parents to allow limited, supervised drinking by their teenagers and their friends. That's how people learn to drink responsibly. Requiring it all to go into hiding promotes a dangerous culture of binge drinking.
3.17.2009 12:52pm
Bama 1L:
The Orthodox (and eastern rite Catholics) only offer communion with the Body immersed in the blood, and everyone sharing from the same cup.

Being half a Melkite myself, I have normally seen this accomplished by the priest dipping the bread (which in this case really does look like a piece of bread rather than a cracker) and then pushing it into the communicant's mouth. There is a plate and/or napkin held underneath the whole transaction so that nothing falls on the ground.

Notable to this discussion, Christians who follow the Eastern rite typically give a child's first communion shortly after baptism--that is, in the first weeks or months of life. So you are talking about furnishing alcohol to six-week-olds (or so) rather than seven-year-olds (or so), as would be the case for many Western-rite churches.
3.17.2009 12:56pm
wfjag:
Ricardo wrote:

From arkansasnews.com:

Rep. Pam Adcock, D-Little Rock, asked, "If you have a nephew or a niece that's 19, 20 years old and they came back from Iraq and wanted to sit on the back patio and have a beer with you and you were caught, would you be charged?"

"I don't think the intent at all is to come on someone's patio and arrest someone because they're having a beer," said Rep. John Lowery, D-El Dorado, a supporter of the bill. "I don't think also they'd bust in on communion or a religious service. The problem is parties, beer kegs, those types of things."


Translation of Rep. Lowery's statement: "I realize this bill could be abused by overzealous police and prosecutors and could have perverse consequences. I just don't care.""You can have my cold brew when you pry my cold, dead fingers from around the bottle."

Certain things you shouldn't contemplate doing in Arkansas:
1. Trying to take a bone away from a hound;
2. Trying to take a brew away from someone at a BBQ (especially if that someone has a gun rack in the back of his pickup);
3. Dissing America -- especially the military or the flag;
4. Saying that the Razorbacks won't win the National Title this season (no matter what the sport is).
3.17.2009 1:22pm
epeeist:
To D.A.: the exception apparently only applies to that section -- so this new section would still apply.

Even someone who thinks under no circumstances should anyone under 21 drink alcohol should still object to this measure because it imposes a duty to expel people from the property after they've already consumed alcohol, which seems particularly unsafe for all the reasons given in the original post and these comments (unsafe for the individual, unsafe for the person expelling say rowdy 19-year-olds, unsafe for other people if the person drives).

That is, the response of a parent coming home to find his or her child has been drinking with friends: "This is terrible, I'm taking all this alcohol away and your car keys and calling your parents who will pick you up in the morning, for safety reasons you can sleep it off here unless they want to pick you up now" = the parent is guilty (in respect of all the under-21s other than the parent's own child) because they haven't been kicked off the private property.
3.17.2009 1:56pm
Sk (mail):
Why is this even controversial?

""1) It is illegal for people under 21 to drink.
No, it isn't. In many places, including Arkansas, it is entirely legal for people under 21 to drink under the supervision of a parent or guardian, or in the course of a religious ritual.""

Read the proposed law:
"A person who exercises control over private property shall not knowingly allow a person under twenty-one (21) years of age who is not a child or ward of the person to:"

Now reread it. "who is not a child or ward of the person." The proposed law is consistent with your argument. Why are you against it again?

""But that has nothing to do with anything anyway; the fact that something is illegal does not mean that any law which somehow touches upon that something is a good law.
2) it is illegal to allow others (minors, people under your control, people on your property, etc) to do illegal things, (for example, if I am in a house, and my 18 year old son is torturing somebody, and I know about it, I am breaking the law if I allow it to continue. If my 17 year old daughter is peddling stolen goods, and I know about it, am I not 'aiding and abetting' or something?).
Where on earth did you get these ideas? Although there are circumstances where one can get in legal trouble for the crimes of another, pretty much most of what you said here is wrong. (And the very fact that they're passing this law helps illustrate that point.)""

Really? I freely admit that I might be wrong. But I'd be surprised if I am. You are claiming that if I own a house, and I have a minor in the house, and that minor is torturing someone in the house, and I know about it, but do nothing to stop it, I am not culpable. You are really claiming that this is not one of those 'circumstances where one can get in legal trouble for the crimes of another'? (Really? You really don't believe I would be charged with at least aiding and abetting the crime?).

"3) It is illegal to allow underage drinkers to drink (see 2), above).
Again, no."
Again, yes. That's the essence of the law being proposed.
But, I'll qualify it. It is illegal to be in a supervisory position and allow non-dependent minors to drink alcohol (which is what the law says).

????
!!!! As explained above, it's controversial because (a) it would encompass many things which it ought not to encompass under any circumstances (such as communion),I HAVE READ MANY STRAW MAN ARGUMENTS IN MY DAY, AND THIS IS JUST ABOUT THE STRAW-MANNIEST I'VE EVER SEEN (b) it would criminalize many trivial activities, such as serving a glass of wine to one's child with dinner, NO IT WOULDN'T-READ THE LAW AGAIN. and (c) it would provide perverse incentives, such as (1) encouraging a parent to not supervise their children's drinking, IT ENCOURAGES PARENTS TO NOT SUPERVISE THEIR CHILDREN IN ILLEGAL BEHAVIOR. and (2) forcing people to drive drunk. IT DOESN'T FORCE ANYONE TO DO ANYTHING-OTHER THAN TO NOT ALLOW UNDERAGE CHILDREN TO DRINK IN MY HOUSE.


For the record, I too believe that children should be allowed to drink under the supervision of their parents. I too think that nephews back from the war in Iraq should be allowed to drink beer on the porch. I believe children should be allowed to take communion.

But if the State (i.e. the democratic representatives of the majority of the people in my democractic society)disagrees, I don't understand the opposition to a law which punishes adults for allowing illegal behavior on the part of minors, under their control,
in their own property.

On the contrary, it would be a bizarre society that says 'Action X is illegal, but providing a venue for X is not.' For instance, if prostitution were illegal, but owning a whorehouse weren't, we'd all conclude that there's something wrong with that legal system.

Sk
3.17.2009 2:01pm
epeeist:
To Sk:

Objecting that a law on its face criminalizes a common behaviour that most people would find unobjectionable and don't think should be illegal, is not a "straw man" argument. It's a "this is a stupidly drafted law that is horribly overbroad" argument.

This law is even worse, it not only criminalizes Communion (or secularly, the example of 20-year-old Iraq veteran nephew on porch = crime), it criminalizes laudatory behavior (e.g. you come home and find drunk teenagers, taking away all alcohol and car keys, calling their parents, offering to let them sleep it off for safety reasons = you're a criminal).

Aside from those issues, contrary to your assertion, the law criminalizes behavior that is currently permissible. For instance, Mom and Dad and 20-year-old child go to Grandma's house. Mom and Dad allow their 20-year-old child sit at the adult table and drink some wine. Grandma permits this. In the past this was fine, but under the new law Grandma has committed a criminal offense, whether the drinking was celebratory, celebrating the Seder (Passover), whatever. Let alone the Communion at church violation of the law (it violates the law on its face, that's not a straw man argument!).
3.17.2009 2:57pm
David M. Nieporent (www):
Now reread it. "who is not a child or ward of the person." The proposed law is consistent with your argument. Why are you against it again?
Wrong. It is not consistent with my argument. My neighbors come over for dinner and bring their teenage son. We serve wine with dinner, and they give some to their son. Guess what -- they've done nothing wrong -- but I have! Although another statute allows the kid's parents to serve him alcohol, this law forbids the property owner -- me -- from allowing the consumption of alcohol by a minor on my property.

Really? I freely admit that I might be wrong. But I'd be surprised if I am. You are claiming that if I own a house, and I have a minor in the house, and that minor is torturing someone in the house, and I know about it, but do nothing to stop it, I am not culpable. You are really claiming that this is not one of those 'circumstances where one can get in legal trouble for the crimes of another'? (Really? You really don't believe I would be charged with at least aiding and abetting the crime?).
Well, let's set aside "charged" -- innocent people can be "charged" -- and focus on what you're guilty of. You may be guilty of the rather vague contributing-to-the-delinquency-of-a-minor, or some such. But for accomplice liability, you generally have to actually advise, assist, solicit, encourage, etc., the criminal in the commission of the crime. Mere knowledge of, and failure to report, a crime does not make one an accomplice. I'm not admitted in Arkansas, so don't take this as legal advice, but generally speaking a person has no duty to prevent someone else from committing a crime.

!!!! As explained above, it's controversial because (a) it would encompass many things which it ought not to encompass under any circumstances (such as communion),

I HAVE READ MANY STRAW MAN ARGUMENTS IN MY DAY, AND THIS IS JUST ABOUT THE STRAW-MANNIEST I'VE EVER SEEN
I don't think you've read many strawman arguments in your day, because this isn't a strawman at all. A strawman is when one falsely attributes a weak position to someone in order to refute it, rather than addressing their real points. Saying, "As written, this law forbids communion" is simply not a strawman, but a statement of fact. Perhaps what you mean is that you think this application to be unlikely, but I don't think bad laws should be passed just because it's "unlikely" they'll be misused.
(b) it would criminalize many trivial activities, such as serving a glass of wine to one's child with dinner,

NO IT WOULDN'T-READ THE LAW AGAIN.
You're correct; I was in a hurry and didn't properly write that one out, and it came out wrong. But as I explain above, it would criminalize serving a glass of wine to someone else's child with dinner.
(c) it would provide perverse incentives, such as (1) encouraging a parent to not supervise their children's drinking,

IT ENCOURAGES PARENTS TO NOT SUPERVISE THEIR CHILDREN IN ILLEGAL BEHAVIOR.
Right; that seems rather stupid; some might say "perverse." If kids are drinking, I'd prefer an adult supervise them, wouldn't you? But this law says that if the property owner is "present and in control of the property," he's guilty, but if he goes out to dinner while the party is going on, he's innocent.
and (2) forcing people to drive drunk.

IT DOESN'T FORCE ANYONE TO DO ANYTHING-OTHER THAN TO NOT ALLOW UNDERAGE CHILDREN TO DRINK IN MY HOUSE.
It does force anyone to do anything. Section (a)(1)(B) of the statute makes it a crime to allow your child's friend to remain on the property if he had a drink. In other words, if you come home and find that your teenage son had a party in the basement with his teenage friends and several of them drank a keg of beer, you're required -- forced -- to throw them out of the house. That again seems really stupid, doesn't it? If you found a drunk teenager (or adult, for that matter) in your home, you'd think letting them sleep it off would make more sense than sending them outside where they're likely to drive home. But this law forbids that.

But if the State (i.e. the democratic representatives of the majority of the people in my democractic society)disagrees, I don't understand the opposition to a law which punishes adults for allowing illegal behavior on the part of minors, under their control, in their own property.
Paeans to democracy don't move me, but in any case, your description of the law is false, for the reasons stated above. This law punishes adults for allowing legal behavior; itPerfectly legal consumption of alcohol

On the contrary, it would be a bizarre society that says 'Action X is illegal, but providing a venue for X is not.' For instance, if prostitution were illegal, but owning a whorehouse weren't, we'd all conclude that there's something wrong with that legal system.
But "owning a whorehouse" isn't illegal. Now, one may well commit crimes in the course of "owning a whorehouse," but the mere fact of owning a building where crime takes place is not illegal. (Now, if someone says, "I want to rent your warehouse to turn it into a whorehouse," that would lead to accomplice liability.) Indeed, note that a section of the statute not quoted by EV says, "This subsection does not apply to the owner of rental property or the agent of an owner of rental property unless the consumption occurs in the individual unit in which the owner or agent resides."
3.17.2009 3:56pm
David M. Nieporent (www):
This should have said:

Paeans to democracy don't move me, but in any case, your description of the law is false, for the reasons stated above. This law punishes adults for allowing legal behavior; it's perfectly legal for a minor to consume alcohol if given by his parents, and yet it's illegal for the property owner to allow it to happen.
3.17.2009 4:01pm
Duncan Frissell (mail):
US Catholic practice generally was one species reception by the laity before Vatican II. I first received under two species at a retreat in 1965. I recall that under special circumstances both species were served e.g. to the bride and groom at their wedding Mass.

My priest suggested that the practice grew up because of the cost and difficulty of serving wine to the large congregations in the days when all of Europe went to Mass every Sunday.

I understand that the total prohibition of alcohol in states like Oklahoma w/o medical or religious exceptions was successfully challenged by the Catholic church.
3.17.2009 4:30pm
Clayton E. Cramer (mail) (www):

What an awful law. We should be encouraging parents to allow limited, supervised drinking by their teenagers and their friends. That's how people learn to drink responsibly.
Sorry, but where I lived in the Bay Area, more than a few adults allowed quite unlimited, supervised drinking and pot smoking by their teenagers and friends. One friend of my daughter passed out at a party, and required an ambulance. The Mom (who is an MD) thought that this was funny. This wasn't the first time, either.
3.17.2009 4:50pm
Dan Hamilton:
The Eucharist can't break this law.

By definition in the miracle of the Eucharist the wine and bread are transformed into the body and blood of Christ.

Therefore the person doesn't drink any wine. To say otherwise is to opress religion and say it is wrong. The COP's can't do that.

If you are going to be a ritual cannibal you might as well get the best out of it.
3.17.2009 4:55pm
Sk (mail):
"Paeans to democracy don't move me, but in any case, your description of the law is false, for the reasons stated above. This law punishes adults for allowing legal behavior; it's perfectly legal for a minor to consume alcohol if given by his parents, and yet it's illegal for the property owner to allow it to happen."

I guess, then, that I agree with you. My current understanding of your position is that the law is poorly written. The specific instance (a parent and child, visiting grandma, can result in criminal charges against grandma) is silly. I hadn't thought of it.

My previous understanding of your position is that the law is silly, and the poorly written aspects of it (it criminalizes communion, it criminalizes grandma) were just logical quirks you were using, not to criticize the wording, but to criticize the principle behind the law. In other words, I was arguing principles (i.e. if x is illegal, what's wrong with making the supervision of x illegal?) You (and, I guess, this post) weren't arguing principles, but semantics (X is overbroadly written).

Re your other points:

"But "owning a whorehouse" isn't illegal. Now, one may well commit crimes in the course of "owning a whorehouse," but the mere fact of owning a building where crime takes place is not illegal. (Now, if someone says, "I want to rent your warehouse to turn it into a whorehouse," that would lead to accomplice liability."

I will grant you are correct here: but in doing so, you are back to supporting my argument. I was being imprecise in claiming that 'owning a whorehouse' would be illegal if whoring were illegal. Of course, the (generally understood) implication of 'owning' a whorehouse' includes 'and knowing that it is being used as a whorehouse, and contributing to the whoring-by knowingly offering the space, by advertising, by taking your cut of the profits, and so on -would, in your words, 'lead to accomplice liability."

And so with adult supervision of underage drinking. I of course don't mean 'owning the house' is illegal and can legitimately be punished. I mean, 'owning the house, and offering the opportunity to drink, and offering refrigerator space for the alcohol, and insuring the kids that I won't call the police," and all the other things that, in your words, would 'lead to accomplice liability.' 'Owning the house' was just shorthand used in order to avoid writing this whole paragraph.

"In other words, if you come home and find that your teenage son had a party in the basement with his teenage friends and several of them drank a keg of beer, you're required -- forced -- to throw them out of the house."

No, you're not. "(2) This subsection applies only to a person who is present and in control of the private property at the time the consumption occurs." If you were gone, and came home and found your teenage son had a party in the basement, you weren't present at the time of consumption. You can let them sleep it off.

Nitpicking aside, our essential differences are here:

"IT ENCOURAGES PARENTS TO NOT SUPERVISE THEIR CHILDREN IN ILLEGAL BEHAVIOR.
Right; that seems rather stupid; some might say "perverse." If kids are drinking, I'd prefer an adult supervise them, wouldn't you? "

No, I wouldn't.

I drank before I was of legal age (I imagine most people have). I don't believe I ever (with the exception of drinking around family) drank in the presence of adults before I was of age. I in fact can't even fathom the argument that 1) drinking is illegal for minors (outside of family, religion, etc etc), but 2) throwing a keg party for minors should be ok for the cool parents in the highschool class, because otherwise they'll be out doing it on their own, by god.

I also threw crab apples at cars when I was 10 or so, but I really can't fathom the argument that my father should have been there, supervising my illegal behavior (or that if he were there, supervising, he wouldn't be equally guilty if caught).

In both cases, supervision implies approval.

Thus, in principle, I find no problem with 1) setting a minimum drinking age, and 2) punishing those who aid and abet breaking 1). Whether that drinking age is 21, or 18, or 16, or 12.

My sense is that while you were nit-picking the semantics of the law (it criminalizes communion! it criminalizes grandma!), you were really against it in principle. That, while a minimum drinking age is probably reasonable (even if you don't agree with it being 21-maybe you, like I, think it should be 18 or 19), the law should be written to allow parents (The cool ones) to fudge the law a bit and have their teenagers over for beers.

And that I don't get (and that is what I was referring to when I mentioned the democratically elected decision). I'm not sure why you think laws should be written, but then 'fudged' to allow you to ignore the ones you don't like.

Plato's Apology addresses this very issue.
He drank the hemlock.

Sk
3.17.2009 5:31pm
fat tony (mail):
I assume Socrates was still around to supervise him.
3.17.2009 6:20pm
David M. Nieporent (www):
I also threw crab apples at cars when I was 10 or so, but I really can't fathom the argument that my father should have been there, supervising my illegal behavior (or that if he were there, supervising, he wouldn't be equally guilty if caught).
I don't know what you mean by "supervising," but he would not in fact be. Parents are not responsible for the criminal acts of their children.
3.18.2009 12:37am
ReaderY:
This is the sort of statute that would easily have been found unconstitutional under a robust (pre-Smith) interpretation of the Free Exercise Clause.
3.19.2009 11:44pm

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