Monday, January 31, 2011

Draft One, Composite

Draft One -- Explanation of sorts

Draft One -- Introduction

Draft One -- "Literature Review", rough notes, incomplete

Draft One -- References and Table; some of the references that appear are not cited in the text yet -- but I anticipate that they will be in future drafts.

Draft One -- References and Table


Jefferson M. Fish, editor, How to Legalize Drugs. Jason Aronson Inc., 1998.

Jefferson M. Fish, editor, Drugs and Society. Rowman & Littlefield, 2006.

Raymond B. Fosdick and Albert L. Scott, Toward Liquor Control. Harper Brothers, 1933.

Richard M. Evans, “What is ‘Legalization’? What are ‘Drugs’?” Chapter 14, pages 369-387, in Fish (1998).

Joseph L. Galiber, “A Bill to Repeal Criminal Drug Laws: Replacing Prohibition with Regulation.” Hofstra Law Review 18(3): 831-880, Spring 1990.

Glenn Greenwald, Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies. White Paper, Cato Institute, April, 2009; available at

Jeffrey A. Miron and Katherine Waldock, The Budgetary Impact of Ending Drug Prohibition. Cato Institute, 2010; available at

Transform Drug Policy Foundation, After the War on Drugs: Blueprint for Regulation, 2009; available at

Frederick Howard Wines, John Koren, and the Committee of Fifty for the Investigation of the Liquor Problem. The Liquor Problem in its Legislative Aspects. Houghton, Mifflin, 1897.

Table 1: Estimated totals of top 7 arrest offenses, plus gambling and prostitution arrests, United States, 2009

Type of arrest Number of arrests

Total arrests 13,687,241
Drug abuse violations 1,663,582
Driving under the influence 1,440,409
Larceny/theft 1,334,933
Simple assaults 1,319,458
Disorderly conduct 655,322
Drunkenness 594,300
Liquor laws 570,333
Prostitution and commercialized vice 71,355
Gambling 10,360

Many disorderly conduct arrests are alcohol-related; assaults are another common arrest category that involve a substantial alcohol-related segment.

Source: FBI, Uniform Crime Reports, Crime in the United States 2009, Table 29, available at

Draft One -- "Literature Review", rough notes, incomplete

2. Some Major Contributions to Ending Prohibition

The contributions that I look at here came in two varieties, policy-relevant writings and real-world policy implementations. I will focus mostly on writings, though the concrete steps associated with the end of national alcohol Prohibition, along with the drug decriminalizations or depenalizations taking place in Netherlands, Portugal, Mexico, and other countries, also receive some notice.

Fosdick and Scott

Toward Alcohol Control was published when the end of Prohibition was a foregone conclusion. Beer had already become available thanks to a revision of the Volstead Act, and the 21st amendment was shortly to be ratified. The book takes it as a given that national alcohol Prohibition is a failed policy, and that the country will be well-served by repeal. Perhaps the chief aim of the proposals in Toward Alcohol Control is to ensure that the Prohibition-induced lawlessness be ended. A second concern is to control the commercial forces that might provoke intemperance in a regime of legal alcohol. Fosdick and Scott note that distilled alcohol is much more socially dangerous than beer and wine, and argue for much tighter controls for the high-proof beverages; indeed, they doubt (p. 48) that distilled spirits should legally be sold for on-premises consumption. They examine two alternative systems of legal control, one in which sellers are licensed, and a second where the state assumes direct control of all sales for off-premises consumption. While they think that both systems potentially are viable, they fear that in the US, a license system will give way to commercial liquor interests over time; hence they prefer a state sales monopoly. Taxes can be employed with an aim to promoting temperance, not for the purpose of revenue collection. Areas within states are themselves quite heterogeneous, so Fosdick and Scott support Local Option, where jurisdictions such as counties and municipalities can choose their own liquor laws.

Hofstra 1990

The Hofstra Law Review published a symposium on drug decriminalization in 1990. Among the articles, which took various pro- and anti-decriminalization positions, was one by Joseph L. Galiber, a New York state senator, that included a draft law to replace New York’s drug prohibition with a regulatory scheme. Galiber’s proposal would have made drugs legally available to adults, though in a potentially highly-regulated manner. Pharmacists and doctors who wanted to dispense the newly-legalized drugs would need a special license. Detailed regulations, including licensure provisions, advertising controls, quantity limits, and pricing (including a tax component), would be promulgated by a state-level Controlled Substances Authority, modeled after New York’s post-Prohibition State Liquor Authority. Galiber’s proposed law endorses a licensing regime, as opposed to Fosdick and Scott’s preferred state monopoly plan. Galiber (1990, p. 846) suggests that drug tax revenues be earmarked for treatment: “It seems proper and fitting that the costs of drug use ought to be borne by drug-users rather than by the public at large from general tax revenues.” Galiber did not limit his proposal to publication in a scholarly journal; he introduced his draft law to the New York Senate in 1989.[4]

How to Legalize Drugs

How to Legalize Drugs, a book of more than 650 pages, edited by Jefferson M. Fish, appeared in 1998.[5] The volume does not argue the case for ending prohibition, but rather, as the title indicates, discusses (especially in Part II, “Approaches to Legalization”) how to implement a legalization; as with Fosdick and Scott, the desirability of legalization (or at least decriminalization) is taken as a given. How to Legalize Drugs illustrates, however, the lack of one or two standard models for post-legalization drug regulation – a sharp contrast from the Fosdick and Scott predecessor. There are medicalization approaches, suggestions for consumer licensing, mail-order delivery requirements, personal consulting pharmacists, and laissez-faire, to name just a handful of the ideas presented in How to Legalize Drugs.


Transform is a British Drug Policy Foundation ( that has provided a detailed guide to global drug legalization. After the War on Drugs: Blueprint for Regulation examines all of the popular recreational drugs, and suggests the steps that should be taken to bring them into legal control.

California’s Proposition 19

In November, 2010, California’s Proposition 19 was defeated at the polls, with 53.5 percent of the electorate voting against the initiative. Had it passed, the Proposition would have legalized adult possession for personal use of up to one ounce of cannabis, and small-scale cultivation for personal use, too. These elements would have had statewide scope, though of course the federal marijuana prohibition would remain in effect. Further, Proposition 19 included an option provision that would have allowed local governments to legalize, tax, and regulate marijuana sales, and to license premises for marijuana consumption. (Consumption in private residences would be legal statewide, as long as no minors were present.) Premises licensed for sales and/or consumption could be subject to various restrictions, such as advertising controls, hours regulations, and taxes.


[4] Galiber’s 1989 proposal built on a marijuana-only legalization bill that was first introduced in the New York Senate in 1971; see Evans (1998, p. 377).

[5] Fish followed up with a 2006 volume, Drugs and Society, that covers some of the same ground.

Draft One -- Introduction

Toward Drug Control

Jim Leitzel

“We believe in strict regulation of beverages of high alcoholic content. We do not believe that such regulation is possible under a strict form of prohibition.” -- Raymond B. Fosdick and Albert L. Scott in Toward Liquor Control, 1933, page 25.

1. Introduction

The most common reason for someone to be arrested in the United States is what the Federal Bureau of Investigation terms a “drug abuse violation,” that is, contravention of the drug laws. Of the more than 1.6 million US drug arrests in 2009, upwards of 80 percent were for drug possession (as opposed to trafficking), with more than 750,000 people arrested for possessing marijuana. The criminal law is a central component of public drug policy; enforcement continues to outpace treatment and prevention within the federal drug budget.[1]

The criminalization of drug-related activity, though a longstanding global phenomenon, is far from uncontroversial. There is significant support for decriminalization or depenalization of possession of limited, personal-use quantities of illegal drugs, and such a policy has been adopted in a number of countries. Outright legalization of drugs, especially marijuana, is another policy that is gaining traction: in November, 2010, more than 46 percent of the California electorate approved an initiative calling for the legalization and taxation of marijuana. Nationwide support for legal cannabis is at a similar level.[2]

The philosophical underpinnings for drug prohibition are weak. Adult drug use per se is a “self regarding” activity, one that does not involve significant external effects. John Stuart Mill’s harm principle would not permit the prohibition of drug consumption, nor of sales, either, if sales were nearly requisite for consumers to acquire their drug of choice. But the principled case for drug prohibition always has been weak. The mounting interest in ending prohibition seems to be driven as much by recognition of the negative consequences of drug criminalization as by newfound respect for Millian notions.

With empirical and theoretical arguments favoring a system of drug regulation, not prohibition, it is worth asking why prohibition has lasted so long.[3] There are surely many reasons, but the one that I focus on here is that people don’t have a good idea about what a legal alternative entails. (The longstanding nature of drug prohibition, combined with its global reach, is reinforcing in this sense, as there essentially is no living memory of previous regimes involving legal marijuana or cocaine or opium, for instance.) Legal channels for the distribution of currently illegal drugs to adults for recreational purposes do not imply that every convenience store can sell heroin to all comers. Non-prohibitory regimes will involve all sorts of rules and regulations, presumably, as with current controls on tobacco and alcohol. Kids can (and will) remain as proscribed consumers, and licenses can be required for both buyers and sellers. Advance purchase mandates, voluntary purchase limits, significant taxes, advertising controls – all of these measures, and more, can be imposed. Drug policy reformers frequently have developed detailed blueprints for legal, regulated drug markets. Nevertheless, most public discussion of drug law reform remains quite unspecific, comparing some vague legalization or decriminalization alternative with the current prohibitions. The various detailed guides do not seem to have permeated the consciousness of the chattering classes or the electorate; further, the suggested legal regimes themselves vary considerably, from tightly controlled prescription-style systems to near laissez-faire.

My goal in this paper is to follow up on previous contributions by attempting to flesh out at least the broad contours of drug control post-prohibition. First, I survey existing publications and policy initiatives in this area. Second, I look at the prospects for buyer licensing, voluntary purchase limits, and self-exclusion. It is my view that these elements of potentially desirable regulatory structures have been relatively neglected in the drug policy reform literature. Finally, I will extend the discussion to the regulation of other vice-related behaviors, such as prostitution.

The title of this paper is a nod towards an influential contribution to alcohol regulation following national Prohibition, Toward Liquor Control, by Raymond Fosdick and Albert Scott. This 1933 book, commissioned by teetotaler and former Prohibition supporter John D. Rockefeller, Jr., served as a guide for many states in developing their alcohol regulatory approach as the demise of Prohibition loomed. There is much pragmatic wisdom in Toward Liquor Control, and much of it can be applied to today’s prohibition, too.

[1] See Fiscal Year 2011 Federal Drug Control Spending by Function in the National Drug Control Strategy, available at The budgetary information in the National Drug Control Strategy does not include the costs of prosecuting and incarcerating federal drug offenders. A majority of the prisoners in US federal prisons are serving sentences for drug-related crimes. Anti-drug spending by state and local governments in the US probably eclipses federal expenditures; see Miron and Waldock (2010).

[2] See the report on the outcome of a Gallup poll, “New High of 46% of Americans Support Legalizing Marijuana,” by Elizabeth Mendes, October 28, 2010, available at

[3] The reader might disagree with the claim that the case for drug prohibition is weak; nevertheless, this paper will take the undesirability of prohibition as a given, and look into how transition to a workable post-prohibition regime might best be secured. My thoughts on the puzzling persistence of drug prohibition first surfaced in a 2006 post on the blog Vice Squad, available at

A Shameful Start

The assiduous reader of Five Drafts will recall that the deadline for Draft One is January 31, 2011. I trust that such a reader also will recall my weaselwording, the qualifier "This might be a well-less-than-complete draft." Well, it certainly is -- well less than complete, that is. Not even hinting at completion, really.

But here is a capsule summary of what has taken place. I have followed to some extent the plan as laid out in the previous post. I have looked at what I think have been some milestones in terms of designing legal regimes for prohibited drugs. I have not written much about them (the entire "draft" is less than 1800 words), in part because I have not read them fully and carefully yet. At this point, I have only a short introduction and a few sentences on some of the previous contributions. But one of the nice surprises for me was how interesting I find the 1933 guide to alcohol re-legalization, Toward Liquor Control. My working title for my paper, therefore, is Toward Drug Control.

So my progress has been limited, and I expect that some of the writing that has taken place will not survive through to the final draft. (The eventual literature review should be more about creating a context for my paper than simply summarizing earlier contributions.) I have not started to write what I think will be the heart of the paper, the discussion of consumer licensing and self-exclusion. Nevertheless, this blog managed to help me make more progress than I would have made in its absence, so I am not entirely disheartened. I think that I will try to offer weekly progress reports up to the deadline for the second draft, which occurs on the Ides of March. In the meantime, I will post what little I have, in three posts. I imagine.

Sunday, January 16, 2011

Regulation, Not Prohibition

I have been ruminating a bit, or so I claim, and am beginning to narrow down the "topic" of my paper. The proximate issue that is driving the rumination is the Proposition 19 initiative to legalize and tax marijuana in California -- an initiative that a majority of California voters rejected in November. Oh, but some 46% of the electorate voted to legalize marijuana -- what other "crime" would have its criminal status rejected by more than 40 percent of the population? Nevertheless, the fact that the California initiative did not provide any guidelines (beyond taxation) for what a regulated marijuana market would look like suggests that it was possible for someone to favor marijuana legalization while still voting against Proposition 19. Would mj advertising be allowed? Would marijuana legally be sold near schools? Would California encourage lots of drug tourists? Voters didn't know what answers a Proposition 19-style legalization would give to these questions.

Some years ago I wrote about why drugs are still illegal, and I concluded that much of the problem was uncertainty about what even the broad contours of a legalized regime would look like. So I want to explore these contours some more, including the margins -- such as sales to children -- under which the criminal law would still dominate. With respect to the potential topics listed in the previous Five Drafts post, it is mostly numbers (3) and (4), concerning desirable policies for legal vices, that I am now leaning towards. Those "numbers," precisely, were:

(3) Licensing and self-exclusion as elements of desirable vice control policies.

(4) Inter-jurisdictional issues in vice control, including vice tourism and federal v. state policies.

So, what do I want to do move ahead?

(1) Read Fosdick and Scott's Toward Liquor Control, which laid out in 1933 two types of regulatory regimes for states to choose between following the end of national alcohol Prohibition -- and most states chose a regulatory structure closely modeled on the book's suggestions. I also want to learn more about the history around the end of Prohibition: some information on this, including the role played by Fosdick and Scott, can be found in this paper by Levine and Reinarman.

(2) I want to learn more about licensing of other legal activities (hunting?; fishing?), and get back to following self-exclusion more closely. Part of this effort will be to learn more about the economic theory surrounding naive and sophisticated consumers with self-control problems.

(3) I want to examine recent efforts to draw up regulatory structures for the currently illegal drugs, and perhaps also for prostitution -- while I see drugs as the focus of my paper, I think that I will also be writing about vice more generally.

Well, these ramblings clearly do not constitute much of a focused plan at this point. But maybe the plan will emerge simultaneously with the paper?

Saturday, January 1, 2011

The Broad Topic

The symposium hopes to make progress in thinking through the role (or lack thereof) of the criminal law in regulating vice. Related issues include defining "vice" and seeing how any vice regulatory framework might apply to areas that are not typically regarded as vicious, including handgun possession, cockfighting, and boxing or other violent, voluntary confrontations.

My feeling is that I have already sketched out my views on these issues, in my book and related papers. One possibility it to revisit those earlier views, probing more deeply and amending or amplifying where appropriate. But I also have some more specific topics in mind, and might want to focus my paper instead on one of these. Here are a few possibilities:

(1) Snus and Khat: two plant-based substances. Snus, a form of chewing tobacco, is sold legally in the US but is banned in the European Union (excepting Sweden); khat (more a plant in itself than a plant-based substance) is legal in Britain but banned in the US. So snus and khat seem to offer natural experiments where the identical drug is criminalized in one country and legal in another. Is the legality of khat a significant problem in Britain? Does the prohibition of khat come at a high cost in the US? How about the parallel questions involving snus?

(2) Prostitution: again, we have an ongoing natural experiment, in that some forms of prostitution are legal in some places while illegal in other places.

(3) Licensing and self-exclusion as elements of desirable vice control policies.

(4) Inter-jurisdictional issues in vice control, including vice tourism and federal v. state policies.

Numbers three and four seem to me to important as we move away from drug prohibition. But for now, my purpose is just to signal some of the main topics that I might take on. I'll try to look into some of them a bit more in the coming days. I am worried about dawdling too long on narrowing my focus, so the looming January 31 deadline for the first of the intended five drafts is chosen in part to force my hand.

Inaugural Post (January 1, 2011)

I have to prepare a paper for a symposium on vice crime and policy; the deadline is mid-August 2011, and the paper must be less than 10,000 words. This blog is my attempt to commit to making progress, and to record the evolution (devolution?) of the paper. The blog title refers to my plan to produce 5 draft versions, with the following due dates:

Draft #1: Monday, January 31, 2011 -- This might be a well-less-than-complete draft;
Draft #2: Tuesday, March 15, 2011;
Draft #3: Wednesday, April 27, 2011;
Draft #4: Thursday, June 16 (Bloomsday!), 2011;
Draft #5: Friday, August 5, 2011. My goal is to post this fifth draft to

OK, here goes.....

[Update: The Five Drafts commitment device has been deemed a success, and hence has been retained (in a revised way) for numerous other papers...]