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Jack L.B. Gohn: The Gansler photo and teen drinking

The picture of Maryland Attorney General Douglas F. Gansler in the midst of a beach house party full of clearly inebriated just-graduated high school seniors has drawn national attention and provoked national amusement, including a mention on Leno. It has also rekindled perennial discussions about the proper role of parents, especially those who happen to be in law enforcement. For me, the photo begged questions not addressed in last month’s column.

Last time, I argued that prohibition of hard drugs and marijuana is self-defeating, that criminalization does not stop people from marketing, buying, or using addictive substances but only makes everything worse. For adult users, that is, I think, beyond reasonable debate. But arguably the issues weigh differently when we are talking about minors and alcohol. My conclusion after wrestling with it: The issues are different all right, and they get very strange very quickly.

There seem to be two principal benefits urged to justify criminalizing drinking before age 21: improved health and life effects, and reduced drunk-driving deaths. From a survey I saw of the scientific literature between 1960 and 2000 (Wagenaar & Toomey, 2005), however, the impact of raising the legal age for drinking upon health and life outcomes seems to have been oversold; for many of the supposed benefits, there seems to be little evidence of a correlation. There is no doubt the adolescent brain is still developing, and animal research strongly suggests alcohol does bad things to a developing brain. But this case seems yet to be proved in human drinkers.

Drunk driving is another matter. What was reportedly the best-controlled study of the effects of minimum drinking age laws upon drunk driving was published in July 2008 in the journal Accident Analysis and Prevention. The subject is maddeningly complicated statistically, but the overall conclusion seems clear enough: The ratio of intoxicated teens involved in accidents to unintoxicated teens involved in accidents went down after Congress imposed a national, mandatory minimum drinking age of 21 to take effect by 1988. The difference is not huge, an 11.2 percent reduction in the ratio just mentioned, but it is statistically significant. In other words, laws that chill teenage drinking must have saved lives on the highway.

The reduction in drunk driving is in fact the pitch that proponents of minimum drinking age laws use. Indeed, the most influential lobby in favor of such laws goes by that very name, Mothers Against Drunk Driving; and the group’s founder quit the organization because she felt it had strayed from a focus on drunk driving to sheer naked prohibitionism.

The MADD view seems to be that directly interfering with all teenage drinking so as to save lives indirectly on the highway is justified, whatever the teenagers and their parents who have been interfered with may think. Implicit in the position is a disregard of the aspirations and views of teenaged drinkers who were never going to get behind the wheel. Maybe it is felt that they are a small minority.

The trouble is that they are not a small minority. As a matter of fact, more than 89 percent of teen drinkers don’t drive, down by 54 percent since 1991, according to a 2010 Centers for Disease Control study.

On its face, that calls into question the MADD rationale: How urgent is it to use direct alcohol control if the real objective is indirect control of drunk driving (which is, of course, directly illegal anyway)? Is that not, in effect, “punishing” the vast non-driving majority of drinking teens for the “sins” of their relatively few driving compeers?

And that’s not the only thing wrong. Are minimum drinking age laws not a bit irrational and contrary to experience? Irrational, because the notion that you can’t hold your liquor through 11:59 p.m. on the eve of your 21st birthday and then, at midnight, suddenly you can is laughable. Contrary to experience as well, because the way most of us learn to drink is with experiences that begin well before our 21st birthdays.

According to a 2011 study, 46.8 percent of American 18- to 20-year-olds report being current users of alcohol – and according to the Centers for Disease Control, the percentage of high schoolers who have ever tried alcohol is 70.8 percent. A survey by Southern Illinois University’s Core Institute revealed that in college, the “current user” rate rises to 82 percent.

In other words, this is a law that most of us have broken, a fact which by itself undermines the law’s legitimacy. But the fact that most of us broke that law tells us more than that. It tells us that few of us become responsible adult drinkers or for that matter non-drinkers without having done some drinking – and thereby breaking the minimum drinking age law – before we turned 21.

Now this early use can be regarded as irresponsible “jumping the gun” that makes no positive contribution to patterns of responsible drinking that may emerge later. Or — and I’m guessing that the parents who sanctioned the party at which Mr. Gansler was photographed felt this way — it may reasonably be viewed as integral to the way responsible drinking is actually learned in our society. (You learn what excess feels like — what the kids in the Gansler photo were doubtless feeling — and then you learn how to avoid that feeling.)

The non-driving majority of drinking teens should stay part of the policy equation, and in the end that majority does pose an agonizing philosophical dilemma. And here it is: Can we legitimately interfere with the free choices of young Americans — many of whom (let it be remembered) are old enough to vote, to marry, to enter binding contracts, to pay taxes, commit adult crimes, and to fight and die for this country — and, to be blunt, can we make lawbreakers of the majority of Americans in this age bracket, merely because we know from experience that a small but significant proportion of them will become more dangerous on the highways without that interference? (An admittedly extreme analogy: We don’t lock up the entire population simply because we know that, if we don’t, there will be some criminals on the street.)

Or do we, on the other hand, treat our youngsters with a respect consistent with our treatment of them in most other contexts – and accept some dreadful adverse consequences that might well have been prevented had we shown less respect?

In Gansler’s case, the solution that the parents who threw the party reportedly tried to enforce (allowing the drinking but preventing driving) seems like an agonized compromise in the face of this impossible dilemma, in the face of laws that are a blunt instrument dealing with a delicate problem.

Well, I for one do not condemn the parents for having chosen one reasonable resolution. I understand why legislatures pass the minimum drinking age laws, and I understand why few young people obey them, and I understand why parents as well quietly rebel.

And I don’t think we know the proper way to resolve these dilemmas.

Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com