Draft Four, Section 2

2. Two Major Contributions to Ending Prohibition

The contributions that I look at here come in two varieties, one historical, one current. 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.


2.1 Fosdick and Scott

Toward Liquor 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 Liquor 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 (including 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.” 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.

Fosdick and Scott (pp. 102-105) examine personal buyer licenses for spirits, drawing on contemporaneous experience in Canada and Scandinavia. The licenses allow adults to purchase (perhaps limited) amounts of alcohol for off-premises consumption 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].”


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 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. Transform recognizes the existing social norms surrounding drug sharing and communal use, and that attempting to overturn those norms is a recipe for sustaining the drug underground.

Transform’s suggested regulations and Toward Liquor Control 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. Drug policy experts, for instance, often note that most drug users do not become dependent consumers. Transform (2009, p. 6) argues that “the majority of drug use is not significantly harmful, is an informed adult choice, and is rationally motivated – primarily by pleasure.” 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. Fourth, social realities cannot be ignored. Laws that run counter to established drug practices will be very difficult to enforce, and will help to maintain black markets. 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, and sellers can be heavily regulated. Sections 3 and 4 below examine two types of policies that reflect these same principles.

[Note -- This post was updated on July 11, 2011, to correct mistakes in the title of the Fosdick and Scott book and to remove some formatting that has a tendency to creep into these posts when pasted from a Word file.]