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 http://www.whitehousedrugpolicy.gov/publications/policy/11budget/table1.pdf. 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 http://www.gallup.com/poll/144086/New-High-Americans-Support-Legalizing-Marijuana.aspx.

[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 http://vicesquad.blogspot.com/2006_02_01_vicesquad_archive.html#113927159382027135.