3.2 Positive and Negative Licensing
Drug policy researcher Mark Kleiman (1992, pp. 98-101) has distinguished between positive and negative licenses. A positive license is one in which the default condition is unlicensed, where a would-be consumer must take some positive steps to opt in, to become licensed. A negative license shifts the default, so that adults automatically have the right to purchase alcohol, say, but that right can be revoked in the face of alcohol-related misbehavior or for other reasons. Familiar licensing regimes such as those for driving offer a sort of combination of positive and negative elements: steps must be taken to acquire a driver’s license, but holders who break driving laws can have their licenses revoked. Any alcohol regulatory scheme that mandates an opt-in buyer’s license presumably would possess similar features, in that the license could be revoked in the wake of misbehavior.
An alternative to a buyer’s alcohol license is a pure negative licensing system: the default is that adults are licensed buyers, but they can lose, for cause, their privilege to purchase. Some of the infractions that would lead to at least a temporary revocation of an alcohol purchaser’s license would be transfer of liquor to an underaged or otherwise unlicensed consumer, violent behavior under the influence, drunk driving, and use of alcohol in forbidden areas (such as drinking in public, for instance). (Loss of a purchase license might not exhaust the penalties imposed for these infractions, of course.) Under a negative licensing system, all purchasers would have to be screened (as they would with positive licensing) at the time of purchase, to ensure they had not lost their purchasing privilege.
Variations on the theme of negative alcohol licenses are spreading. People who are in legal trouble connected with alcohol can be monitored to ensure that they are not drinking. Sometimes people adopt these measures voluntarily, though perhaps also with an eye to benefiting in future legal proceedings. In other instances, courts impose alcohol monitoring as part of pretrial release or probation. South Dakota’s 24/7 Sobriety Program, for instance, aimed at repeat drunk driving offenders, seeks to keep participants away from drinking.[i] Participants in the program either check in twice a day for an alcohol breath test, or wear an electronic alcohol monitor. These monitors, which can come in the form of small ankle bracelets, allow frequent testing without the necessity to travel to a testing location; they have been adopted by many court systems in the US.[ii] Ignition interlock devices are a sort of negative driver’s license, temporarily suspending the driving (though not the drinking) privileges of someone who fails the requisite sobriety test.
Without testing or other ex post checks, negative licensing is enforced like age controls are enforced, by requiring that every potential purchaser provide identification. The Ids are then checked to see if the age minimum is met, and that the customer is not on the list of unentitled individuals. Negative licenses backed up by testing require that only the proscribed individuals need be involved, by submitting to the requisite tests. Everyone else, including sellers and entitled adults, can take no notice of the banned users. This advantage comes at a cost, however. Alcohol licensing regimes that involve some participation by all consumers can serve to put troubled drinkers into contact with counseling and treatment options. Removing the bulk of consumers – many of whom might be at risk of having problems related to their alcohol use – from the regulatory regime makes it more likely that problems will escalate before help is sought or mandated.
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