Sunday, March 27, 2011
There are three books relevant for Five Drafts that I hope to read by April 20 or so; I mentioned all three of them before. They are:
(1) The Saloon Problem and Social Reform, by John Marshall Barker, 1905;
(2) Last Call, by Daniel Okrent, 2010; and,
(3) All or Nothing, by Jessica Warner, 2008. I'll just record where things stand on these three books, in terms of the pages I have read and the total pages required:
Barker, 47 out of 212; Okrent, 14 out of 469; and Warner, 6 out of 230. Not a happy picture so far, but a record that leaves lots of room for improvement. If and when I make progress, I hope to memorialize in Five Drafts some of what I learn from these books.
I have prepared hand-written revisions to Self-Exclusion, but have not yet entered them -- I hope to finish that task this week, and as noted, possibly submit the paper for publication or rejection. I have made some brief handwritten edits to Draft Two, too, but again, have not entered them.
Those other commitments that I have so mysteriously alluded to include four public presentations before the end of April: all of these presentations are related to, though not coincident with, the work for this blog. So my hope is that even if those commitments detract from the emergence of Draft Three in the short run, they will complement it in the long(er) run. Tomorrow's start of the Spring quarter at the University of Chicago means that a new class is starting up, one that does not overlap much with the Five Drafts project; the name of the course is "Regulating Speech."
Tuesday, March 22, 2011
The next month looks pretty busy, so I don't expect to do much writing for Draft Three until mid-April. In the meantime, I will try to finish reading the books mentioned above, along with Jessica Warner's book on abstinence. I will also try to revise (and perhaps even submit somewhere for publication) my Self-Exclusion paper. By my standards, this is an ambitious plan.
Tuesday, March 15, 2011
Toward Drug Control: Buyer Licensing and Self-Exclusion
Section 1, Introduction
Section 2, Some Major Contributions to Ending Prohibition (including 2.1, Fosdick and Scott)
Sections 2.2 (Transform), 2.3 (Portugal), and 2.4 (California's Proposition 19)
Section 3, Consumer Licensing (including 3.1 From Opting Out to Opting In)
Section 3.2 (Positive and Negative Licensing)
Section 3.3, Licensing Drug Users
Section 4, Self-exclusion (including 4.1 Gambling self-exclusion and 4.2 Drug self-exclusion)
Section 5, Conclusions
End Matter (References and Table)
Fosdick, Raymond B., and Albert L. Scott, Toward Liquor Control. Harper Brothers, 1933.
Greenwald, Glenn, Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies. White Paper, Cato Institute, April, 2009; available at http://www.cato.org/pub_display.php?pub_id=10080.
Hughes, Caitlin Elizabeth, and Alex Stevens, “What Can We Learn From the Portuguese Decriminalization of Illicit Drugs?” British Journal of Criminology 50: 999-10222, 2010.
Kleiman, Mark, “Dopey, Boozy, Smoky – and Stupid.” The American Interest Online 2(3), January – February 2007; available at www.the‑american‑interest.com/ai2/article.cfm?Id=224&MId=7 (visited February 24, 2007).
Kleiman, Mark, Against Excess: Drug Policy for Results, New York: Basic Books, 1992.
Leitzel, Jim, Regulating Vice. New York: Cambridge University Press, 2008.
MacCoun, R. J., and P. Reuter, Drug War Heresies: Learning from Other Vices, Times, and Places. Cambridge: Cambridge University Press, 2001.
Miron, Jeffrey A., and Katherine Waldock, The Budgetary Impact of Ending Drug Prohibition. Cato Institute, 2010; available at http://www.cato.org/pubs/wtpapers/DrugProhibitionWP.pdf.
Thaler, Richard H., and Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness. New Haven: Yale University Press, 2008.
Transform Drug Policy Foundation, After the War on Drugs: Blueprint for Regulation, 2009; available at http://www.tdpf.org.uk/Transform_Drugs_Blueprint.pdf.
Wines, Frederick Howard, John Koren, and the Committee of Fifty for the Investigation of the Liquor Problem. The Liquor Problem in its Legislative Aspects. Houghton, Mifflin, 1897.
Zinberg, Norman E., Drug, Set, and Setting: The Basis for Controlled Intoxicant Use. New Haven: Yale University Press, 1984.
Table 1: Estimated totals of top 7 arrest offenses, plus gambling and prostitution arrests, United States, 2009
Type of arrest Number of arrests
Total arrests 13,687,241
Drug abuse violations 1,663,582
Driving under the influence 1,440,409
Simple assaults 1,319,458
Disorderly conduct 655,322
Liquor laws 570,333
Prostitution and commercialized vice 71,355
Many disorderly conduct arrests are alcohol-related; assaults are another common arrest category that involve a substantial alcohol-related segment.
Source: FBI, Uniform Crime Reports, Crime in the United States 2009, Table 29, available at http://www2.fbi.gov/ucr/cius2009/data/table_29.html.
“With apprehension as well as relief the public asks: What shall replace national prohibition?” -- Fosdick and Scott, 1933, page 5.
One of the barriers to ending drug prohibition is the breadth of the possible meanings of “legalization.” The purpose of this paper is to explore two elements of regulatory systems – buyer licensing and self-exclusion – that can be helpful components of drug control and offer some assurance that drug legalization does not imply free availability. These types of regulations offer assistance to those who are worried about self-control problems with drugs, while not being significantly constraining upon those who are informed and satisfied drug consumers.
Licensing can be used to promote, in relative terms, milder forms of drug use: opium tea instead of smoking, opium instead of heroin, and so on. License tests can help make sure that users are informed of drug dangers and procedures for dealing with problems of overdose or addiction, and license revocation can provide an additional sanction for drug-related misbehavior. In short, relative to prohibition, licensing and self-exclusion can be part of a drug regulatory structure that is much more finely tuned to the risks of harm.
Enforcement via testing is a key component of court-supervised negative licenses – people who drink or take drugs in violation of the order face negative consequences imposed from without. People who voluntarily choose to be abstinent from alcohol or drugs do not face the same degree of testing and enforcement – though the illegality of some drugs typically does raise a barrier to use, relative to what would exist in a legal, lightly regulated market.
Voluntary abstainers might try to enforce their commitment. They might make a public pronouncement of their abstinence intention, so that any deviations from their plan might be noted by others and cause embarrassment. They might enlist their friends and family into serving as watchdogs and supporters of their commitment. They have the option of setting up enforceable contracts that would result in “fines” or other negative consequences if they stray from their declared path: see stickk.com. Even with these measures, the voluntarily abstemious generally lack the participation of sellers in preventing their alcohol or drug consumption. Indeed, sellers presumably have a pecuniary incentive to overcome the reluctance of wavering abstainers.
4.1 Gambling self-exclusion
Gambling jurisdictions around the globe have demonstrated the viability (and popularity) of a negative licensing system that can aid voluntary abstainers and recruit sellers into the enforcement mechanism: self-exclusion programs. In the US, adults are eligible to gamble by default: there is no positive licensing of gamblers. Nor are time or money limits generally imposed. Self-exclusion programs, however, allow individuals not only to opt out, but to do so in a manner that is binding for some time in the future. A person can (voluntarily) place himself on a self-exclusion list, and then he will not be permitted into casinos, nor keep any winnings if he evades the exclusion and manages to gamble anyway. For people who face severe self-control problems, a self-exclusion program can be a significant boon.
Self-exclusion presents a physical barrier to entry, and by confiscating winnings, renders any gambling that could take place in defiance of the ban to be less alluring. Self-excluders are removed from any promotional or frequent bettor plans, too, in an effort to limit temptations.
Without self-exclusion (or licensing), opting out of gambling requires those ongoing decisions to desist. The willpower to continue to abstain often proves wanting in those whose rationality with respect to wagering is most suspect. With a self-exclusion program, however, the opt-out can occur at any moment, and maintain a degree of enforceability for long periods of time. The new, voluntarily chosen default economizes on willpower, and has shown itself to be a valuable tool in curbing pathological gambling.[i]
One method of enforcing exclusions is to try to visually recognize excluded gamblers and to remove them from the gambling premises. Many jurisdictions allow trespassing charges to be brought against gamblers who attempt to enter a casino from which they have excluded. A more thorough enforcement regime involves checking the identification of all would-be gamblers, though such a regime would impose somewhat on the non-excluded. (Identification checks for relatively youthful gamblers might be necessitated by age restrictions in any case.) The collection of large jackpots from electronic gaming machines presents another enforcement mechanism. Jackpots in modern slots are not paid out directly by the machines; instead, receipts for credits are provided to the lucky player. Federal tax law necessitates that forms be filled out before winnings of $1,200 or more are disbursed, providing casinos with an opportunity to check names against the excluded list. As noted, these jackpots will be confiscated from excluded gamblers, with the proceeds in many jurisdictions earmarked for treatment of problem gaming.
The exclusion system can be extended to involuntarily excluded gamblers. Casinos do this on their own, barring individuals because of, for instance, prior cheating or criminal activity. But the more interesting extension concerns individuals who, like self-excluders, are problem gamblers or at-risk of becoming problem gamblers. For these people, family members might be empowered to initiate an intervention, one that could result in the involuntary exclusion of a gambler from betting locales. Singapore and Australia already make provision for such family exclusions; Singapore also automatically excludes from its casinos residents who are receiving public assistance or who are in bankruptcy.
In between voluntary and involuntary exclusions are exclusions that result from some active prodding. Gambling providers can track bettor behavior, and have personnel discreetly contact someone whose frequency or pace of wagering suggests potential problems. The casino employees (or officials empowered by the regulatory agency) might suggest counseling or self-exclusion, and provide information about these and other options. Casinos in the Netherlands must check, upon entry, the identification of all gamblers. These id checks facilitate the enforcement of exclusion orders, but they also track the frequency of entry; gamblers who enter a casino more than eight times in a month will be approached by casino personnel to discuss the possibility of control issues and self-exclusion.
4.2 Drug self-exclusion
Self-exclusion can be employed with the currently illegal drugs to set up a negative licensing system. First, consider a self-exclusion program in isolation, that is, as in the case of gambling, a self-exclusion program that is not combined with a positive licensing scheme. To be specific, imagine a self-exclusion system with respect to legal marijuana. Upon reaching the age of majority, all individuals would be licensed (implicitly) to purchase and consume limited quantities of marijuana. Users who are concerned that their marijuana use has become habitual and is detracting from their lives could choose to put themselves on the list of ineligible buyers. Presumably the method of enforcing the list would involve all marijuana customers producing identification, which then would be compared with the exclusion list.
All of the detailed provisions of exclusion that arise in the instance of gambling exclusions have precise parallels with drug exclusions. How long should an exclusion last? When an exclusion expires, is any positive step required for reinstatement of the (implicit) license to purchase marijuana? Would it be sensible to allow enforceable self-limits, partial exclusions that permit the purchase of restricted quantities of marijuana? (Note that such a non-zero option can be seamlessly provided as part of a positive licensing scheme.) Could family members initiate an intervention that could result in an enforceable exclusion?
Self-exclusion might be a good standalone option for the legalization of relatively soft or safe drugs like marijuana. For harder drugs, a positive licensing scheme might be a better route for legal provision, at least in the initial post-prohibition situation. For these harder drugs, a self-exclusion could supplement the positive licensing, where the exclusion would bar the possibility of receiving a license for some period in the future.
[i] See the relevant posts at the blog Self-exclusion, at http://selfexclusion.blogspot.com/search/label/Effectiveness.
3.3 Licensing Drug Users
Though the preceding discussion of licensing focused on alcohol, analogous regulatory approaches can be employed for the currently illegal drugs. Drug prohibition implies that almost everyone is unlicensed. (There are exceptions in the case of people who receive controlled substances via medical prescription.) The general prohibition sometimes is complemented by a further negative licensing element in the form of drug testing. South Dakota’s 24/7 Sobriety Program, for instance, extends to illegal drugs for some participants. These individuals submit to frequent drug testing, either with regular on-site testing or through the use of “sweat patches,” which are worn for a week or more and then tested for evidence of drug use.[i] Hawaii’s HOPE program (Hawaii’s Opportunity Probation with Enforcement) combines frequent drug testing of probationers with swift incarceration for brief periods in the event of failed or missed tests.[ii]
The legalization of the currently illegal drugs can involve buyer licensing, where the conditions under which a license is granted and maintained can be tailored to the user, the specific characteristics of the drug, and the conditions under which it is to be consumed: drug, set, and setting, in Norman Zinberg’s celebrated triad.[iii] Consider heroin, for instance. First, it is likely that under a legal regime, the vast majority of opiate users will shun heroin and consume opium in relatively dilute preparations, perhaps in the form of tea. Nevertheless, heroin can be made available, both for maintenance of existing addicts and for use by non-addicts. Maintenance provision of heroin to addicts might be conducted along the lines of current maintenance programs in some European countries. For non-addicts, what would a workable licensing system look like?[iv]
First, we will assume that legal sellers of heroin will themselves be strictly controlled, either through a state monopoly regime or through a licensed dispenser model: the two alternatives that Fosdick and Scott recommended for implementing alcohol legalization. When someone turns 21 years of age, he or she would be eligible to apply for a heroin license. This could be a stand-alone license, but given the wide variety of opiates and opioids available, it might be more sensible to offer a general opiate license, with sub-categories, including one for heroin, which opiate consumers could choose to opt into. The applicant for the heroin subcategory would have to pass a short exam indicating that he or she understands the potential dangers of using heroin in different delivery modes, steps to take in case of an accidental overdose, and the regulations concerning public use, drugged driving, and transfers to unlicensed individuals. A brief discussion with a counselor also will be mandated, aimed at determining if the user is experiencing problems (or has previously experienced problems) with her drug use, with treatment options explained and made readily available. The license would last for one or two years, and renewals would necessitate further discussion, to see how the user is coping with his or her drug use.
A person who passes the exam can then choose limits to how much heroin he or she can buy in a day, a week, a month, and a year. These limits then will be enforced by the seller, and an electronic data base will be necessary so that multiple dispensaries can access and update the same information. (There will be regulatory limits imposed with an eye to restricting diffusion into the black market, but those limits should not impair an ardent user from receiving the (substantial) doses that she desires. The option (or even requirement) of choosing personal limits is made available to license holders to help them implement their own plan for controlled usage.) A user also might specify a mode of ingestion, so that appropriate doses can be provided, and so an injector will receive pre-dosed syringes. (The license might only extend to use in controlled locales, and perhaps the heroin will only be dispensed in such locales, with ingestion taking place on site and monitored; in general I think such a rule would be too constricting a regime to place on all users, though it might be a viable option for license holders to select.)
There would be a small fee for the license, with harder forms of opium products or administration facing higher fees, perhaps. (Experience with an opium license might even be required before a heroin license could be issued.) Purchases of the harder drugs might also be taxed at higher levels than purchases of the less potent varieties. Purchases themselves might be required to be arranged in advance, perhaps by two or three days, to restrict impulsive consumption.
People who are concerned about their excessive drug use (including alcohol) often intend to cut back or quit in the future, but continue as heavy users in the here and now. The regulatory regime can offer some assistance to individuals in implementing their plans for forthcoming temperance, by giving them the opportunity to commit to reduced purchase limits in the future.[v] When a person applies for a heroin license, for instance, and chooses her daily, weekly, monthly and annual limits, she might also be able to choose reductions in those limits for future years. For instance, she might agree that the licensing authority must decrease her limits by ten percent (of the original limits) per year, starting next year and continuing over the following decade, when her limit will be zero. Of course, she might commit to zero consumption today by not applying for a license, but many people are not willing to give up their drug of choice entirely in the near term, even if they recognize that their relationship with the drug is damaging. Zero needn’t be the end point of such commitments, of course – a similar ratcheting down could be scheduled for five years, leaving the user with limits that are half of today’s.
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. Therefore, I do not think these measures would be appropriate, even as temporary elements of a conservative 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 requiring drug tests instead, as is now done).
[i] Sweat patch requirements are controversial; see the Drug Policy Alliance’s “Drug Testing Technologies: Sweat Patch,” at http://www.drugpolicy.org/law/drugtesting/sweatpatch_/.
[ii] See http://www.hopeprobation.org/.
[iii] Zinberg (1984).
[iv] Chapter 3 in Leitzel (2008) details my views on the principles underlying desirable vice controls. The licensing regimes discussed in this paper are consistent with those views. I am not suggesting that the regimes here are optimal, only (potentially) workable – indeed, I might not support all of the elements of the regime that I propose. Presumably different regimes would be tried in different places, and regulations would evolve over time as shortcomings revealed themselves and successes were replicated.
[v] The “Save More Tomorrow” plan, which involves a formal but not binding commitment to, well, save more at a future date, has shown success in increasing savings; see Thaler and Sunstein (2008, pp. 112-115).
3.2 Positive and Negative Licensing
Drug policy researcher Mark Kleiman (1992, pp. 98-101) has distinguished between positive and negative licenses. A positive license is one in which the default condition is unlicensed, where a would-be consumer must take some positive steps to opt in, to become licensed. A negative license shifts the default, so that adults automatically have the right to purchase alcohol, say, but that right can be revoked in the face of alcohol-related misbehavior or for other reasons. Familiar licensing regimes such as those for driving offer a sort of combination of positive and negative elements: steps must be taken to acquire a driver’s license, but holders who break driving laws can have their licenses revoked. Any alcohol regulatory scheme that mandates an opt-in buyer’s license presumably would possess similar features, in that the license could be revoked in the wake of misbehavior.
An alternative to a buyer’s alcohol license is a pure negative licensing system: the default is that adults are licensed buyers, but they can lose, for cause, their privilege to purchase. Some of the infractions that would lead to at least a temporary revocation of an alcohol purchaser’s license would be transfer of liquor to an underaged or otherwise unlicensed consumer, violent behavior under the influence, drunk driving, and use of alcohol in forbidden areas (such as drinking in public, for instance). (Loss of a purchase license might not exhaust the penalties imposed for these infractions, of course.) Under a negative licensing system, all purchasers would have to be screened (as they would with positive licensing) at the time of purchase, to ensure they had not lost their purchasing privilege.
Variations on the theme of negative alcohol licenses are spreading. People who are in legal trouble connected with alcohol can be monitored to ensure that they are not drinking. Sometimes people adopt these measures voluntarily, though perhaps also with an eye to benefiting in future legal proceedings. In other instances, courts impose alcohol monitoring as part of pretrial release or probation. South Dakota’s 24/7 Sobriety Program, for instance, aimed at repeat drunk driving offenders, seeks to keep participants away from drinking.[i] Participants in the program either check in twice a day for an alcohol breath test, or wear an electronic alcohol monitor. These monitors, which can come in the form of small ankle bracelets, allow frequent testing without the necessity to travel to a testing location; they have been adopted by many court systems in the US.[ii] Ignition interlock devices are a sort of negative driver’s license, temporarily suspending the driving (though not the drinking) privileges of someone who fails the requisite sobriety test.
Without testing or other ex post checks, negative licensing is enforced like age controls are enforced, by requiring that every potential purchaser provide identification. The Ids are then checked to see if the age minimum is met, and that the customer is not on the list of unentitled individuals. Negative licenses backed up by testing require that only the proscribed individuals need be involved, by submitting to the requisite tests. Everyone else, including sellers and entitled adults, can take no notice of the banned users. This advantage comes at a cost, however. Alcohol licensing regimes that involve some participation by all consumers can serve to put troubled drinkers into contact with counseling and treatment options. Removing the bulk of consumers – many of whom might be at risk of having problems related to their alcohol use – from the regulatory regime makes it more likely that problems will escalate before help is sought or mandated.
3. Consumer Licensing
3.1 From Opting Out to Opting In
Perhaps the one plank of vice policy that receives almost universal support is that children should not be given unbridled access to potentially addictive substances such as alcohol, nicotine, opiates, cannabis, and so on. Precisely what limits should be placed on children, and at what age they graduate into adulthood, remain debatable issues. Irrespective of how these tricky matters are decided, however, what happens when the age of majority is reached? Drugs do not stop presenting difficulties as soon as the drug consumer is an adult.
The questionable rationality of addictive behavior, along with the self-control issues faced by many non-addicts in vice-related decisions, suggests that public policy might want to counter excessive vice consumption – even in those forms of vice that do not involve significant externalities. One way to do this is via default rules.
The default setting – the action that takes place in the absence of any positive step to override the default – can be very powerful in altering decision-making.[i] In particular, many people will accept the default, despite having no strong commitment to the decision that the default implements.
For legal, non-prescription drugs such as nicotine and alcohol, the standard default rule is access to unlimited quantities. (The access is not entirely unhindered, however, in that restrictions of sales to licensed premises and special taxes present departures from the conditions under which regular, non-vicious goods can be acquired.) In the United States, for instance, you are not allowed to purchase alcohol if you are under 21 years of age. On your 21st birthday and dates thereafter, you are allowed to purchase as much alcohol as you or anyone else could possibly want (though on-site drinking establishments are not supposed to serve intoxicated customers). You don’t have to opt-in to being a legal alcohol purchaser – you only have to be sufficiently old.
An alternative regime can be envisioned, one that offers protection for people who are concerned that they might drink to excess. When you reach 21 years of age, you do not automatically qualify to purchase alcohol. Rather, you qualify for the opportunity to opt-in, for the opportunity to acquire a license that will allow you to buy alcoholic beverages.[ii] Alcohol sellers (who themselves are licensed) must check each purchaser’s “alcohol” license, just as they now verify the age minimum.
The introduction of drinking licenses provides new tools for alcohol control. People who misbehave under the influence can have their alcohol purchasing (and perhaps alcohol drinking – see below) privileges rescinded. Consumers who fear the possibility of excessive drinking could bolster their self-control by choosing not to acquire a license, or by becoming licensed but specifying a legally-enforceable limit on the amount of alcohol they can purchase in a day, week, month, or year. Licenses could be tied to price regulations or taxes in such a way that prices charged to buyers could mount as the extent of purchasing goes up – the second bottle of spirits during a week could cost more than the first, for instance. The strictness of the overall alcohol regulatory regime can be adjusted by tweaking the ease of acquiring a license or the circumstances in which a license could be revoked.
It is possible, therefore, to use buyer licensing to convert alcohol purchasing from an opt-out default to an opt-in default. One of the difficulties of the current opt-out system, for those who face alcohol self-control issues, is that maintaining abstinence or temperate consumption requires near continuous re-iteration of the decision to opt out. A buyer’s licensing system might make it much easier to pre-commit to abstinence or temperate consumption. Assuming that the process and cost of acquiring an alcohol buyer’s license are not very onerous, this pre-commitment option can be provided with little imposition upon those who place no value on limiting their alcohol purchases.
Transform is a British Drug Policy Foundation (www.tdpf.org.uk) that has provided a detailed guide to global drug legalization. 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. There is a recognition that uncontrolled commercial forces could lead to highly undesirable outcomes. As a result, seller licensing, advertising controls, and pricing interventions are all called for, and nonprofit clubs might become the licensed sellers in the cases of psychedelic substances. 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 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.
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.
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 them as health issues, not criminal justice ones – 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.
2. Some Major Contributions to Ending Prohibition
The four contributions that I look at here came 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 the 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 in a regime of legal alcohol. Fosdick and Scott note that distilled alcohol is much more socially dangerous than beer and wine, and argue for much tighter controls for the 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 promoting 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 [Fosdick and Scott (1933, p. 19)].” 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.[i]
Fosdick and Scott (pages 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.
[i] Note the coherence of Fosdick and Scott with John Stuart Mill – responsible adults who want to drink must be afforded a means of doing so legally, and if that requires sales (as Mill thought, in the case of alcohol, it did), then sales must be feasible.
Toward Drug Control: Buyer Licensing and Self-Exclusion
“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.
The 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 is a “self regarding” activity, one that does not involve significant external effects. 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. 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.[iii] 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 involving legal marijuana or cocaine or opium, for instance.) Legal channels for the distribution of currently illegal drugs to adults for recreational purposes do not imply that every convenience store can sell heroin to all comers. Non-prohibitory regimes will involve all sorts of rules and regulations, presumably, as with current controls on tobacco and alcohol. Kids can (and will) remain as proscribed consumers, and licenses can be required for both buyers and sellers. Advance order requirements, voluntary or mandated purchase limits, significant taxes, advertising controls – all of these measures, and more, can be imposed. 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 current 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.
My goal in this paper is to follow up on previous contributions by detailing the role that buyer licensing and voluntary self-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.[iv] 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. Other elements of the regulatory regime will determine precisely what behaviors are sanctioned by the license, what actions result in the revocation (and reinstatement) of a license, and whether license holders can choose to officially limit their own licensed activities – only one ounce of marijuana per month, say.
Self-exclusion regimes, popular in gambling regulation, provide a sort of negative license: an individual who chooses to self-exclude forgoes the possibility of acquiring the drug 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. Self-exclusion programs involve many of the same issues as broader licensing schemes: what do you have to do to self-exclude, how can the exclusion be revoked, are there ways to exclude in a limited way, and so on. Self-exclusion could even supplement regulatory systems for drugs that do require buyer licenses: a person could choose to self-exclude for some time from the option of acquiring a license.
Prior to examining licensing and self-exclusion, 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 their relationship with and implications for licensing. I then turn to the prospects for buyer licensing, voluntary purchase limits, and self-exclusion, with respect to regulating currently illegal drugs. 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.
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] 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.
[iv] 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.
Sunday, March 13, 2011
For this week, in terms of writing, I was supposed to produce a draft of section 3.3 (on buyer licensing for drugs) and section 4.2 (on drug self-exclusion), and maybe write a paragraph of "conclusions." I have done thse tasks, amazingly enough, sacrificing quality for -- well, not exactly quantity, but for something tangible (of a sort). Today I was reminded of the old saw about the enemy being the empty page, so I suppose I managed to keep that enemy at bay.
I also was supposed to finish reading the Committee of Fifty's book, but I failed in that quest: now I'm up to page 136 (of 182), though. (On page 113 there is an interesting use of the word "demoralized," perhaps indicating its original meaning. The discussion is about some nationalities that seem to have particular problems with alcohol after they come to the United States. Why? The book suggests that they "become demoralized by the high wages that they receive and drink to excess.") I wanted to make progress on reading two other books, too, but I failed. So for this coming week, I will reiterate my old reading goals: finish the Committee of Fifty's book, and make some progress on Daniel Okrent's Last Call and on the 1905 book on saloons.
As for the thinking part, including the application of behavioral economics models, well, that remains for the future. For Tuesday's draft, I would like to add a couple of paragraphs (one on California's initiative to legalize marijuana and a second to augment the drug self-exclusion section), and perhaps a table to summarize heroin licensing. We'll see.
Sunday, March 6, 2011
The same sub-section mania infected section 4, on self-exclusion. Sub-section 4.1 looks at gambling self-exclusion, and sub-section 4.2 looks at drug self-exclusion -- once again, the drug component is unwritten. So by next Sunday, I hope to have completed a draft of subsections 3.3 and 4.2. Matters are pressing, as the "complete" Draft Two is due in just 9 days, on March 15. Conclusions are always a weak point for me -- I am always tempted to say, "Draw your own conclusions" -- so I will try to have a draft paragraph or two of conclusions in hand for next week, too.
I am happy to report that I did indeed put down a preliminary discussion of Portugal. I hasten to add that all of the "discussion" in the draft in this stage is pretty superficial and incomplete -- it is left to drafts Three through Five to deepen the analysis. The summary book by the Committee of Fifty is a quick, 182-page read, yet I still have managed only to get through the first 58 pages. Here's a fun quote from page 53, a passage that I believe was quoted also by Fosdick and Scott: "...the sight of justices, constables, and informers enforcing a prohibitory law far enough to get from it the fines and fees which profit them, but not far enough to extinguish the traffic and so cut off the source of their profits, is demoralizing to society at large." I intend to finish reading the Committee of Fifty's book this week. I also want to start reading Daniel Okrent's well-received book on Prohibition, along with another 1905 book (the Committee of Fifty's summary book was published in 1905), this one on saloons.
I did begin collecting (recollecting, really, as I had a pretty thorough collection a few years ago) articles on behavioral economics that might have some bearing on the best way to design drug licenses and self-exclusion schemes. Here's a short piece by Ian Ayres that illustrates a mechanism whereby naive individuals might voluntarily make a commitment to, say, cut back on their drug use. Whether these sorts of mechanisms could add much to lowering the social costs of addictions is something I will try to think about in the future -- a rather weak commitment, I know.