Toward Drug Control: Exclusion and Buyer Licensing
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. IntroductionThe 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.[i]
The criminalization of drug-related activity, though a longstanding global phenomenon, is far from uncontroversial. Significant support exists for decriminalization or depenalization of possession of limited, personal-use quantities of illegal drugs, and such liberalized policies have 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.[ii]
The philosophical underpinnings for drug prohibition are weak. Adult drug use per se generally is a “self regarding” activity, one that does not involve significant external effects. This self-regarding property implies that John Stuart Mill’s harm principle would not permit the prohibition of drug consumption, nor of sales, either, if sales were nearly requisite for adult consumers to acquire their drug of choice.[iii] 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.[iv] 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 – or first-hand knowledge of current regimes – controlling legal marijuana or cocaine or opium, for instance. Alcohol and tobacco regulatory control systems are widely understood, but these models are unappealing for many of the currently prohibited drugs.
Drug policy reformers have developed diverse, 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 status quo prohibitions. The detailed guides do not seem to have permeated the consciousness of the electorate; further, the suggested legal regimes themselves vary considerably, from tightly controlled prescription-style systems to near laissez-faire. In the public mind, drug legalization seems to suggest fairly loose controls, something akin to alcohol regulation.
Desirable non-prohibitory regimes for currently illegal drugs share at least two features with alcohol control: (1) kids will remain as proscribed consumers and (2) the full panoply of rules will be rather elaborate. For many of the currently banned drugs, however, legal controls will be much stricter than the standard alcohol model; surely convenience stores will not be allowed to sell unlimited quantities of heroin to all adult customers. Licenses can be required for buyers as well as for sellers. Advance order requirements, voluntary or mandated purchase limits, significant taxes, advertising controls – all of these measures, and more, can be imposed.
My goal in this paper is to follow up on previous contributions by detailing the role that buyer licensing and exclusion might play in a post-prohibition drug regulatory regime. The notion of licensing is, in itself, quite broad. All drug control regimes, looked at from the point of view of potential consumers, can be described as variations on the license theme. What steps do you have to take, what hoops must you jump through, to acquire the drug legally, to be a “licensed” user? For alcohol, you must be 21 years of age or older (to purchase); for marijuana, in terms of federal law, there is nothing you can do to legally acquire marijuana for medical or recreational purposes.[v] Other marijuana "licensing" regimes are in existence: in California, you must receive a recommendation from a physician (though you will still bump up against the federal prohibition), while in the Netherlands, you must be at least 18 years of age for technically illegal but officially tolerated possession of personal-use quantities. Elements of the regulatory regime will determine precisely what behaviors are countenanced by the license, what actions result in the revocation (and reinstatement) of a license, and whether license holders can (or must) choose to officially limit their own licensed activities – no more than one ounce of marijuana per month, say.
Some people will be excluded from possessing a drug license, whether the licensing regime is explicit or implicit. In particular, a person who causes harm under the influence of the drug can lose the privilege of consuming the drug – and the exclusion can be enforced via testing. Such mandatory exclusions built into the regulatory structure can be supplemented with voluntary measures: self-exclusion regimes, which are popular in gambling regulation. An individual who chooses to self-exclude forgoes the possibility of acquiring the drug legally for a period of time into the future: many gambling exclusion programs offer lifetime options, though minimum exclusion periods tend to be six months or one year. Any drug regulatory system that requires some positive step (beyond becoming sufficiently old) to acquire a license has a built-in self-exclusion system: don't acquire the license, and you are not a legal buyer. But for drugs (or other vices) that do not require such positive steps, voluntary, enforceable self-exclusion schemes can be useful elements of the regulatory framework – as they already are for gambling. No one wants to be an addict, even though people make the choices that drive them to addiction and maintain themselves in an addicted state. Licensing and exclusion programs enlist the self-interest people have in avoiding or ending addiction into an enforceable method of raising barriers to excessive drug use.
Prior to examining exclusion and licensing, I survey two existing attempts to provide detailed blueprints for controlling newly legalized drugs: one for alcohol following national Prohibition in the US, and the second a current effort by a British drug policy organization developed for today’s prohibited drugs. I also look at the implementation of drug liberalization in Portugal, as well as the defeated California marijuana legalization initiative, to see the sort of regulatory regimes that these endeavors envision. These four examples are mined both for general lessons about drug control, as well as for their relationship with and implications for licensing. I then turn to the prospects for augmenting an alcohol-style regulatory regime with mandated and voluntary exclusion or purchase limits, and with buyer licensing. It is my view that these dimensions of regulatory structures have been relatively neglected, and further, that they are highly desirable elements of systems of legal control for the currently illegal drugs.
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. Pragmatic wisdom permeates Toward Liquor Control, and much of it can be applied to today’s prohibition, too.
[i] 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).
[ii] 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.
[iii] Mill (1978 [1859]).
[iv] 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.
[v] There are a handful of exceptions, in the form of individuals who receive medical marijuana under a federal license; the program was discontinued decades ago but the existing users’ “licenses” were continued. Marijuana can be legally procured for federally approved research projects.
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