3.3 Licensing Drug Users
Though the preceding discussion of licensing focused on alcohol, analogous regulatory approaches can be employed for the currently illegal drugs. Drug prohibition implies that almost everyone is unlicensed. (There are exceptions in the case of people who receive controlled substances via medical prescription.) The general prohibition sometimes is complemented by a further negative licensing element in the form of drug testing. South Dakota’s 24/7 Sobriety Program, for instance, extends to illegal drugs for some participants. These individuals submit to frequent drug testing, either with regular on-site testing or through the use of “sweat patches,” which are worn for a week or more and then tested for evidence of drug use.[i] Hawaii’s HOPE program (Hawaii’s Opportunity Probation with Enforcement) combines frequent drug testing of probationers with swift incarceration for brief periods in the event of failed or missed tests.[ii]
The legalization of the currently illegal drugs can involve buyer licensing, where the conditions under which a license is granted and maintained can be tailored to the user, the specific characteristics of the drug, and the conditions under which it is to be consumed: drug, set, and setting, in Norman Zinberg’s celebrated triad.[iii] Consider heroin, for instance. First, it is likely that under a legal regime, the vast majority of opiate users will shun heroin and consume opium in relatively dilute preparations, perhaps in the form of tea. Nevertheless, heroin can be made available, both for maintenance of existing addicts and for use by non-addicts. Maintenance provision of heroin to addicts might be conducted along the lines of current maintenance programs in some European countries. For non-addicts, what would a workable licensing system look like?[iv]
First, we will assume that legal sellers of heroin will themselves be strictly controlled, either through a state monopoly regime or through a licensed dispenser model: the two alternatives that Fosdick and Scott recommended for implementing alcohol legalization. When someone turns 21 years of age, he or she would be eligible to apply for a heroin license. This could be a stand-alone license, but given the wide variety of opiates and opioids available, it might be more sensible to offer a general opiate license, with sub-categories, including one for heroin, which opiate consumers could choose to opt into. The applicant for the heroin subcategory would have to pass a short exam indicating that he or she understands the potential dangers of using heroin in different delivery modes, steps to take in case of an accidental overdose, and the regulations concerning public use, drugged driving, and transfers to unlicensed individuals. A brief discussion with a counselor also will be mandated, aimed at determining if the user is experiencing problems (or has previously experienced problems) with her drug use, with treatment options explained and made readily available. The license would last for one or two years, and renewals would necessitate further discussion, to see how the user is coping with his or her drug use.
A person who passes the exam can then choose limits to how much heroin he or she can buy in a day, a week, a month, and a year. These limits then will be enforced by the seller, and an electronic data base will be necessary so that multiple dispensaries can access and update the same information. (There will be regulatory limits imposed with an eye to restricting diffusion into the black market, but those limits should not impair an ardent user from receiving the (substantial) doses that she desires. The option (or even requirement) of choosing personal limits is made available to license holders to help them implement their own plan for controlled usage.) A user also might specify a mode of ingestion, so that appropriate doses can be provided, and so an injector will receive pre-dosed syringes. (The license might only extend to use in controlled locales, and perhaps the heroin will only be dispensed in such locales, with ingestion taking place on site and monitored; in general I think such a rule would be too constricting a regime to place on all users, though it might be a viable option for license holders to select.)
There would be a small fee for the license, with harder forms of opium products or administration facing higher fees, perhaps. (Experience with an opium license might even be required before a heroin license could be issued.) Purchases of the harder drugs might also be taxed at higher levels than purchases of the less potent varieties. Purchases themselves might be required to be arranged in advance, perhaps by two or three days, to restrict impulsive consumption.
People who are concerned about their excessive drug use (including alcohol) often intend to cut back or quit in the future, but continue as heavy users in the here and now. The regulatory regime can offer some assistance to individuals in implementing their plans for forthcoming temperance, by giving them the opportunity to commit to reduced purchase limits in the future.[v] When a person applies for a heroin license, for instance, and chooses her daily, weekly, monthly and annual limits, she might also be able to choose reductions in those limits for future years. For instance, she might agree that the licensing authority must decrease her limits by ten percent (of the original limits) per year, starting next year and continuing over the following decade, when her limit will be zero. Of course, she might commit to zero consumption today by not applying for a license, but many people are not willing to give up their drug of choice entirely in the near term, even if they recognize that their relationship with the drug is damaging. Zero needn’t be the end point of such commitments, of course – a similar ratcheting down could be scheduled for five years, leaving the user with limits that are half of today’s.
One of the more difficult issues with drug licensing is the extent to which the identities (and perhaps chosen limits) of license holders will be made available publicly, and whether it will be legal for employers or insurance companies to discriminate on the basis of holding a heroin license. There is something to be said for a conservative implementation of a licensing plan when drugs initially are re-legalized, so perhaps disclosure and legal discrimination might be useful as transitional devices. Nevertheless, public disclosure of the names of license holders and legal discrimination on the part of any employer against licensed consumers could easily prove so onerous that users would shun the licensing system for the black market. Therefore, I do not think these measures would be appropriate, even as temporary elements of a conservative plan for ending prohibition. Sensitive jobs, however, might be exempted: employers for these positions would then be allowed to screen employees on the basis of licenses (or perhaps by requiring drug tests instead, as is now done).
[i] Sweat patch requirements are controversial; see the Drug Policy Alliance’s “Drug Testing Technologies: Sweat Patch,” at http://www.drugpolicy.org/law/drugtesting/sweatpatch_/.
[ii] See http://www.hopeprobation.org/.
[iii] Zinberg (1984).
[iv] Chapter 3 in Leitzel (2008) details my views on the principles underlying desirable vice controls. The licensing regimes discussed in this paper are consistent with those views. I am not suggesting that the regimes here are optimal, only (potentially) workable – indeed, I might not support all of the elements of the regime that I propose. Presumably different regimes would be tried in different places, and regulations would evolve over time as shortcomings revealed themselves and successes were replicated.
[v] The “Save More Tomorrow” plan, which involves a formal but not binding commitment to, well, save more at a future date, has shown success in increasing savings; see Thaler and Sunstein (2008, pp. 112-115).
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