5. A Closer Look at a Small Subset of Complicated Issues
5.1 Sharing and Social Norms
Many people consume their drugs in social settings, as part of a group, and they often share drugs in these situations. Does this reality imply that exclusions or buyer licensing will prove futile? After all, even if these regulations succeed in keeping unentitled individuals away from purchasing drugs, those individuals can still use drugs provided by their legally-entitled friends.
This is a situation familiar to young adults in the United States, who are not allowed to purchase alcohol until the age of 21. Many older teens do drink, however, often alcohol purchased by slightly older friends. As with alcohol, transferring legalized drugs to an underage or unentitled person will be illegal, despite the barriers to enforcement.
Quantity controls can limit the extent to which any one licensed individual can undermine the intent of the overall program – an option currently unavailable for alcohol. Loss of a drug license is an additional sanction that can be used to dissuade illicit sharing. For drugs that often are consumed in social settings, restricting use to licensed clubs – with the clubs only available to licensed members – also can help. The possibility that drug packaging and the drugs themselves can be labeled in a traceable manner – using so called microtaggents – might also ease enforcement.[i] Nevertheless, leakage from legal users to unlicensed individuals in their social sphere will surely occur; enforcement resources are probably best aimed at diversion to teenagers and at profit-motivated secondary distribution channels.
5.2 The Highly-Skewed Distribution of Drug Consumption
Most adults do not use the currently illicit drugs. For those who do use such drugs, most are not heavy consumers. But those who are heavy consumers tend to consume the majority of the drugs, and also are responsible for many or most of the social costs associated with drug acquisition and use.
Heavy drug users typically enjoy easy access to their drug of choice. An attempt to replace prohibition with a regime that does not provide such users with similarly easy access is a recipe for maintaining illicit supply channels and the violence and corruption that accompany them. Taxes on legal sales, therefore, cannot be exorbitant, if the legal market is to out-compete the black market. Nor can license requirements be overly onerous. Pharmaceutical grade drugs of a known potency, however, typically are preferable to street drugs, so the effective price of drugs does not have to decline substantially for the legal market to dominate the black market. Further, with a large chunk of sales moved into the legal market, enforcement resources can be targeted at the relatively small number of illicit sales, driving up prices on the residual market.
The importance of heavy users to sustaining a black market implies that displacing their demand into licit channels is a key, perhaps essential component of combating illegal drug sellers. Further, their drug consumption and its related problems are sufficiently different from casual or moderate users that a separate channel of legal supply is probably appropriate, something akin to the maintenance regimes some jurisdictions have in place for opiate users. A treatment component or connection, desirable for exclusion and licensing regimes, takes on central prominence for the very heaviest users.
5.3 The Privacy of Licensee or Exclusion Lists
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.[ii] Therefore, I do not think these measures would be appropriate, even as temporary elements of a cautious 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 conducting drug tests, as is now done).
[i] Transform (2009) suggests the use of microtaggants to aid the enforcement of personal drug licenses. See also “Tuning in to Taggants,” by Paul Thomas, Pharmamanufacturing.com, 2006, available at http://www.pharmamanufacturing.com/articles/2006/004.html?page=1.
[ii] Colorado and some other states in the US that have legalized marijuana for medical purposes employ confidential registries of patients’ names; see www.cdphe.state.co.us/hs/medicalmarijuana/confidential.html.
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