2.2 Transform
Transform is a British Drug Policy Foundation (www.tdpf.org.uk) that has developed a detailed guide to global drug legalization. Their 2009 publication, 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.
Transform raises many of the same considerations found in Fosdick and Scott. The criminality associated with prohibition is a major concern; avoiding continued lawlessness restricts the stringency of regulations that should govern in a legalized regime. There is a recognition that uncontrolled commercial forces could lead to highly undesirable outcomes. As a result, seller licensing, advertising limitations, and pricing interventions are all called for. Price controls, which might include higher per-unit prices charged to an individual as purchase quantities increase, are to be used for regulating use, not for revenue collection. Education about drugs and their risks is a central component of Transform’s regulatory regimes – as it is for Fosdick and Scott. The notion that making the relatively dilute forms of drugs much more readily available than their more potent siblings is fundamental to both legalization blueprints: opium and coca tea instead of heroin and cocaine for Transform, for instance, and beer and wine instead of spirits for Fosdick and Scott.
Transform endorses buyer licensing or limits for many drugs, and the proposed licenses come in a wide variety of styles. For cannabis, Transform does not recommend buyer licenses, though purchase limits (as in the Dutch coffee shops) might be put in place. For users of cocaine, opiates, and amphetamines, Transform supports buyer licenses and purchase limits, at least during the early part of a transition to a legal regime. In the case of the psychedelic drugs, Transform imagines licensed, nonprofit clubs at which these drugs could be dispensed to members, who, among other conditions, might have to undergo training on the risks (and benefits) of drug use.
2.3 Portugal
For the past decade, possession and use of illegal drugs, including marijuana, cocaine, and heroin, have not been criminal offenses in Portugal. The decriminalization applies only to amounts appropriate to ten days or less of personal consumption: trafficking in such substances remains within the ambit of the criminal law. Police officers cannot arrest people for small-scale possession, but they can issue hearing notices, the vast majority of which result in no fine being imposed. In both intent and result, the Portuguese decriminalization makes treatment resources more available to addicts and others suffering from problems related to drug use. Drug-related harms appear to have declined in Portugal following decriminalization, despite small increases in adult drug use.[i] Nor has Portugal become a haven for significant drug tourism. “None of the fears promulgated by opponents of Portuguese decriminalization has come to fruition, whereas many of the benefits predicted by drug policymakers from instituting a decriminalization regime have been realized.”[ii]
The Portuguese decriminalization operates as a de facto licensing system for personal use amounts of drugs. The license can be revoked, however, even if there is no visible harm to others from an individual’s drug consumption. The police-initiated hearings can result in fines or community service sentences, especially for repeat offenders. But users adjudged to be addicts are not fined, under the theory that financial penalties will lead addicts towards acquisitive crime, and that drug addiction is a health, not a criminal justice matter.[iii] Dependent users generally are referred to treatment in lieu of sanctions. In treatment, opiate addicts in Portugal can receive a second drug “license”, in the form of access to maintenance doses of methadone, buprenorphine, or another opiate agonist.
2.4 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. Consumption in private residences also would have been legal, as long as no minors were present. These elements of Proposition 19 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. Premises licensed for sales and/or consumption could be subject to various restrictions, such as advertising controls, hours regulations, and taxes. Public consumption outside of licensed premises would remain banned.
Possession and use of marijuana with a physician’s recommendation is legal under California state law, and caregivers also are licensed to grow and transfer marijuana. The medical marijuana system is lenient enough that it can be utilized by consumers to provide a de facto state license for recreational use.[iv] The federal prohibition still is in effect, though, and serves as a rationale for discriminating against medical marijuana users in employment. In California, medical marijuana consumers, behaving legally under state law, still can be fired from their job following a positive cannabis test.
The four contributions described above tend to invoke or reflect some common principles. First, they do not view drug use per se as a particularly vexing problem requiring a forceful solution. As Fosdick and Scott found, “public opinion will not support the thesis that the temperate use of alcohol is inconsistent with sobriety, self-control, good citizenship and social responsibility. More than that, many people believe that such moderate use can be made an agreeable phase of a civilized mode of living [p. 16].” This sentiment seems today to extend at least to cannabis, and perhaps to other illicit drugs. Second, the contributions recognize the problems associated with intemperance, but tend to view these problems as health issues, not criminal justice concerns – though intoxicated behaviors remain within the scope of the criminal law. Third, commercial forces in the realm of psychoactive drugs are mistrusted: advertising and marketing controls and even much heavier restraints on sellers are called for. Together, these principles suggest that adults should be able to receive a de facto or de jure license to consume drugs, though the terms of that license can be set to discourage intemperance. Licenses can be revoked through misbehavior, too. Sellers can be heavily regulated and even banned, if licensed consumers can still use drugs in the absence of commercial sales. Sections 3 and 4 below examine two types of policies that reflect these same principles.[i] Hughes and Stevens (2010).
[ii] Greenwald (2009, pages 27-28).
[iii] Peter Beaumont, “What Britain Could Learn from Portugal’s Drugs Policy,” The Observer, September 5, 2010.
[iv] The distinction between recreational and medical use is not one that I support as a basis for determining legality; indeed, I support legal (though not unfettered) access for adults to drugs for either medical or recreational purposes. If a drug makes someone feel better, is the drug use medical or recreational?
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