2. Some Major Contributions to Ending Prohibition
The four contributions that I look at here come in two varieties, policy-relevant writings and real-world policy implementations. The end of US federal alcohol Prohibition in 1933 provides the first example – the individual states, empowered by the repeal Amendment to control their own internal beverage alcohol markets, needed some guidance in how to proceed, and suggestions from the Fosdick and Scott volume were widely adopted. The second contribution I examine is the detailed “Blueprint for Regulation” aimed at currently prohibited drugs, developed by Transform, a British foundation promoting drug law reform. The real-world implementations, one ongoing, the other proposed (and, for now, rejected) concern the drug decriminalization or depenalization taking place in Portugal, and the effort to legalize marijuana for adult recreational use in California.
2.1 Fosdick and Scott
Toward Alcohol Control was published when the end of Prohibition was a foregone conclusion. Beer had already become available legally 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 Prohibition-induced lawlessness be ended. Achieving this aim limits the strictness of the regulatory regime, as effectively “prohibitionist” policies would sustain the criminality prompted by an official prohibition. A second concern is to control the commercial forces that might provoke intemperance within a regime of legal alcohol. Third, Fosdick and Scott note that distilled alcohol is much more socially dangerous than beer and wine, and argue for much tighter controls for high-proof beverages; indeed, they doubt (p. 48) that distilled spirits should legally be sold for on-premises consumption.
Toward Liquor Control examines 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 Fosdick and Scott 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 should be employed with an aim to promote 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. Education (and not only in-school education) about the real dangers of intemperance is a mainstay of their recommendations for limiting alcohol-related problems: “Education is a slow process, but it carries a heavier share of the burden of social control than does legal coercion.”[i] Fosdick and Scott (1933, p. 131) emphasize a point that is commonly made by drug regulation analysts: drug problems by and large do not admit of solution, only control.
What must an adult do to acquire beverage alcohol, in the view of Fosdick and Scott? For beer and wine, their general recommendation is that patronizing a licensed establishment should be sufficient. With respect to spirits, they recognize that some states and localities within states might want to remain dry, to not make available package stores or other legal alcohol sales premises. Even in these cases, however, they recommend (p. 87) that deliveries of spirits to individuals residing in dry areas be legal: otherwise, illegal bootlegging, and all its attendant problems, would be too likely.[ii]
Fosdick and Scott (pp. 102-105) examine personal buyer licenses for spirits, drawing on experience in Canada and Scandinavia. The licenses allow adults to purchase (perhaps limited) amounts of alcohol from the state monopoly shop, and licenses can be revoked for misbehavior. Toward Liquor Control takes a fairly dim view of buyer licensing, and is particularly concerned that it will not work well where bootlegging is already entrenched. Nonetheless, Fosdick and Scott withhold any categorical statement on this score, and note that personal alcohol licenses are popular with many segments of Canadian officialdom. Further, they foresee that some people will automatically have their privilege to purchase alcohol revoked, as part of the regulations imposed upon sellers: “Rules are also necessary forbidding sale to minors, habitual alcoholics, paupers, mental defectives and to anyone who is drunk [p. 49, footnote omitted].”
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