Well, I have fallen a draft behind, so it is time to re-optimize, as it were. I still need two more drafts, I think, but I am not yet ready to extend the timeline for this project. So, I need a short fuse for Draft Three(a) to appear: I'll go with Friday, March 21, and keep Draft Four(a) scheduled for Thursday, April 3. Despite my recent lack-of-performance, I maintain that this schedule is doable.
Draft Two(a), including the partial references that I did not post, is roughly 6,100 words. This is good, as it gives me some room to work with, as the final version should come in at about 8,000 words.
Having fallen behind, at least let me mention that I did indeed accomplish my modest reading goal of finishing David Nutt's Drugs -- Without the Hot Air -- a book that I enjoyed quite a bit, and I hope one from which I learned quite a bit, too. For my next reading trick, well, I am not quite ready to commit to anything concrete, but I think I will tackle a book on prostitution policy.
Wednesday, March 12, 2014
Draft Two(a), Composite
Here's one handy post with links to all of the currently available parts of Draft Two(a) of "Regulating Vice"
1. Vice
2. Why Regulate Vice?
3. Surveying the Range of Controls
4. One Potential Guiding Principle to Vice Regulation
5. Robustly Regulating Casino Gambling
6. Changing Times
7. Vice 3.0 [no draft available]
References [no draft available]
1. Vice
2. Why Regulate Vice?
3. Surveying the Range of Controls
4. One Potential Guiding Principle to Vice Regulation
5. Robustly Regulating Casino Gambling
6. Changing Times
7. Vice 3.0 [no draft available]
References [no draft available]
Draft Two(a), Section 6 (quite incomplete)
6. Changing Times
Vice regulation demonstrates tremendous variation over time and place, with specific vices sometimes banned, and at other times made widely available and all-but-lauded. Some of the recent trends will be outlined here.
(1) Tobacco The regulatory approach to tobacco, and particularly towards cigarettes, has become much stricter in recent decades. Higher taxes and diminished availability of vending machine outlets are two notable changes, but perhaps most telling is the severe reduction in legal places to smoke in public. A trend that started with bans on smoking in airplanes and hospitals, has, in much of the world, spread to most workplaces, restaurants, and even pubs.
(2) Marijuana Marijuana has been globally prohibited (and covered by the UN conventions on drugs that promote global prohibition) for many decades now, but the once near-consensus that a ban (usually extended to possession as well as purchase, sale, manufacture, and transport) is desirable has shown significant cracks. Initial forays have included the legalization of marijuana for medical purposes, a change that has occurred in 20 US states and the District of Columbia. (Marijuana, medial or otherwise, remains prohibited at the federal level in the United States.) Uruguay has legalized marijuana, as have two US states, Colorado and Washington. Many countries and US states have adopted decriminalization or depenalization reforms that generally preclude any sort of serious punishment for marijuana users, though sellers might still be arrested and receive significant jail time.
(3) War on Drugs Marijuana is one of the more benign of the currently illegal drugs, and also the most popular. These factors, perhaps combined with pot’s obvious ability to offer relief to some patients in medical distress, help to explain why marijuana is the drug for which global prohibition is proving least sustainable. Nonetheless, the entire edifice of a prohibitory stance towards recreational drugs also has begun to crumble, probably due to the horrific consequences of the war on drugs. Portugal, the Czech Republic, the Netherlands, Mexico, Argentina, Uruguay, and some other countries have adopted fairly broad depenalization plans for personal use, and addiction is treated in many countries as a health problem, not a criminal justice concern. Still, much of the world, including Malaysia, Singapore, China, Vietnam, Indonesia, and Iran, among other nations, enforces draconian penalties against those deemed to be in the illicit drug trade.
(4) Gambling The last half century has witnessed a significant liberalization of gambling regulations in much of the world. Since 1960, the number of US states hosting legal casinos has gone from one to more than 30, and the number of states offering lotteries has climbed from zero to more than 40. Asia recently has become a global casino powerhouse: gambling revenues in Macau are much higher than in any other casino locale, while Singapore’s two casinos have combined revenues from gambling about the same as the overall take from the scores of casinos in Las Vegas.
(5) Prostitution While tobacco has become more tightly regulated in recent decades, the trend in marijuana and other drugs, and in gambling, has been towards liberalization. Prostitution is harder to characterize on a leniency scale, as the world has been splitting between opposite approaches, one that accepts some forms of legal, regulated prostitution, and another that shifts the focus on the traditional ban from prostitutes to their customers. In much of the world, prostitution is illegal, though in some places where it is criminalized – including Thailand – it is tolerated, while in other locales it is severely punished. In Britain and Canada, prostitution per se is legal, though related activities, such a streetwalking or keeping a brothel, are illegal. Brothel prostitution is legal in many countries, including Germany and Switzerland, as well as in some Australian states. New Zealand has perhaps the most liberal rules governing prostitution: consensual agreements between adults for paid sex are legal, as are related activities, including streetwalking. A policy of one-sided enforcement, where sellers are not breaking the law but buyers are, was instituted in Sweden in 1999, and has served as a model for later reforms in Iceland and Norway, and continues to be considered elsewhere. In a sense, the Swedish system reverses the de facto system existing in many nations with prostitution bans, where prostitutes are criminalized but their customers are tolerated or punished less severely.
Vice regulation demonstrates tremendous variation over time and place, with specific vices sometimes banned, and at other times made widely available and all-but-lauded. Some of the recent trends will be outlined here.
(1) Tobacco The regulatory approach to tobacco, and particularly towards cigarettes, has become much stricter in recent decades. Higher taxes and diminished availability of vending machine outlets are two notable changes, but perhaps most telling is the severe reduction in legal places to smoke in public. A trend that started with bans on smoking in airplanes and hospitals, has, in much of the world, spread to most workplaces, restaurants, and even pubs.
(2) Marijuana Marijuana has been globally prohibited (and covered by the UN conventions on drugs that promote global prohibition) for many decades now, but the once near-consensus that a ban (usually extended to possession as well as purchase, sale, manufacture, and transport) is desirable has shown significant cracks. Initial forays have included the legalization of marijuana for medical purposes, a change that has occurred in 20 US states and the District of Columbia. (Marijuana, medial or otherwise, remains prohibited at the federal level in the United States.) Uruguay has legalized marijuana, as have two US states, Colorado and Washington. Many countries and US states have adopted decriminalization or depenalization reforms that generally preclude any sort of serious punishment for marijuana users, though sellers might still be arrested and receive significant jail time.
(3) War on Drugs Marijuana is one of the more benign of the currently illegal drugs, and also the most popular. These factors, perhaps combined with pot’s obvious ability to offer relief to some patients in medical distress, help to explain why marijuana is the drug for which global prohibition is proving least sustainable. Nonetheless, the entire edifice of a prohibitory stance towards recreational drugs also has begun to crumble, probably due to the horrific consequences of the war on drugs. Portugal, the Czech Republic, the Netherlands, Mexico, Argentina, Uruguay, and some other countries have adopted fairly broad depenalization plans for personal use, and addiction is treated in many countries as a health problem, not a criminal justice concern. Still, much of the world, including Malaysia, Singapore, China, Vietnam, Indonesia, and Iran, among other nations, enforces draconian penalties against those deemed to be in the illicit drug trade.
(4) Gambling The last half century has witnessed a significant liberalization of gambling regulations in much of the world. Since 1960, the number of US states hosting legal casinos has gone from one to more than 30, and the number of states offering lotteries has climbed from zero to more than 40. Asia recently has become a global casino powerhouse: gambling revenues in Macau are much higher than in any other casino locale, while Singapore’s two casinos have combined revenues from gambling about the same as the overall take from the scores of casinos in Las Vegas.
(5) Prostitution While tobacco has become more tightly regulated in recent decades, the trend in marijuana and other drugs, and in gambling, has been towards liberalization. Prostitution is harder to characterize on a leniency scale, as the world has been splitting between opposite approaches, one that accepts some forms of legal, regulated prostitution, and another that shifts the focus on the traditional ban from prostitutes to their customers. In much of the world, prostitution is illegal, though in some places where it is criminalized – including Thailand – it is tolerated, while in other locales it is severely punished. In Britain and Canada, prostitution per se is legal, though related activities, such a streetwalking or keeping a brothel, are illegal. Brothel prostitution is legal in many countries, including Germany and Switzerland, as well as in some Australian states. New Zealand has perhaps the most liberal rules governing prostitution: consensual agreements between adults for paid sex are legal, as are related activities, including streetwalking. A policy of one-sided enforcement, where sellers are not breaking the law but buyers are, was instituted in Sweden in 1999, and has served as a model for later reforms in Iceland and Norway, and continues to be considered elsewhere. In a sense, the Swedish system reverses the de facto system existing in many nations with prostitution bans, where prostitutes are criminalized but their customers are tolerated or punished less severely.
Draft Two(a), Section 5
5. Robustly Regulating Casino Gambling
The robustness principle, like Mill’s harm principle, suggests that gambling should be legal. As it would be difficult for people to gamble in a safe manner without gambling providers, “sales” of gambling services also must be legal. Casinos are the standard method of providing such services, though lotteries (the most popular form of gambling) generally operate in a separate system outside of casinos.
Robustness requires that the regulatory regime lead to acceptable outcomes even when many gamblers are addicted or misinformed or irrational with respect to their wagering behavior. These rationality shortfalls are not just theoretical in the case of gambling; rather, they are pervasive. Something on the order of one to two percent of the adult population typically falls within the clinical understanding of disordered gambling – though the percentage of casino patrons who are problem gamblers is much higher. These individuals suffer enormous costs stemming from their gambling fixation, including family breakdown, bankruptcy, and job loss. But even non-problem gamblers often misunderstand probabilities of winning and losing, and selectively forget past losses relative to wins, so that their views of their own gambling outcomes are quite skewed. Gamblers hold unreasonable beliefs about past play influencing future outcomes, such as the notion that a particular slot machine is “hot”: they believe (incorrectly) that the machine temporarily offers better winning prospects.
Countering incorrect beliefs is an important component of any robust gambling policy. Clear and prominent identification of the odds of winning (or perhaps of losing) could be mandated. One of the more startling facts about electronic gambling machines is that players are very poorly informed about the average “price” of a play. Regulations generally require slot machines to pay out some minimum percentage of their takings, such as 80%. A machine that costs $1 per play, and just met such a regulatory standard, therefore would have an average net price of 20 cents per play. But the machine might be set for an average return of 98% of the wagers, leaving an average net price of 2 cents per play. Gamblers typically are not informed the average net price of a play, however, even though it can vary by an order of magnitude across different machines (or on the same machine over time). Imagine going to the store and buying a loaf of bread, and not knowing until you bought it whether it cost $1 or $10. And in the case of the slot machines, unless you play for many, many hours, you can’t be confident of the average net price even after you make your purchases. A mandate to provide clear pricing information would seem to be an all but necessary element of a robust casino regulatory regime.
Price information might be provided in easy to understand ways, including the “average net price per play,” as described above. In addition, for instance, the expected loss per $100 wagered could be given. (Today’s networked, progressive slots imply that the expectation changes over time, but second-by-second updating is easy to electronically compute and display. The potential to play multiple lines on a slot machine also muddies the picture, but again, not in such a way that prices of different gambler options can’t be determined and displayed.) Other information that could continuously be on offer might be the amount of money wagered in a given session, the current net loss position, and the amount of time spent gambling. (Problem gamblers not only suffer from money woes, they also end up spending very significant amounts of time gambling, to the detriment of other dimensions of their lives.) The electronic cards that most regular gamblers use as part of casino loyalty programs also can be used to gather and disseminate this information.
Self-limit and self-exclusion programs should also be part of a robust gambling regulatory regime. A self-limit program allows gamblers to pre-commit as to how much money they are willing to lose prior to a gambling session. (The relevant timeframe could be longer, too, such as limiting losses per month or per year, or limits could be set across multiple timeframes.) The limit is irrevocable, so that in-the-moment passions cannot override judgments made earlier and (hopefully) in a more considered fashion. It would also be compatible with a robust regime to require every patron to choose a binding loss limit upon entering a casino – a policy Australia has considered implementing – as such a policy can do much to limit the harms of gambling, while imposing very little on rational bettors, who, like everyone, would be allowed to choose a very high limit if that is their preference.
Self-exclusion programs are an extreme form of self-limit, in that the limit is set to zero. Generally gamblers who choose to self-exclude are not allowed admission to a casino, and can even be charged with trespassing should they attempt to breach their agreement. Administration is less than perfect, but enforcement can be aided through technological means such as facial recognition software, or by requiring that all casino patrons present identification upon entering. (The imposition of an ID requirement on non-excluded gamblers is small enough that it would not violate robustness, and in any event, is often necessary to enforce age restrictions.) Many jurisdictions offer options concerning the duration of a self-exclusion agreement, some as brief as 6 months or a year, with longer durations including bans of 5 years or even for a lifetime.
A self-exclusion program allows gamblers to opt out, while offering more commitment to that choice than comes from most declarations of abstinence. (Individuals might be able to sign private commitment contracts that also raise the stakes of breaching a no-gambling pledge, and hence potentially provide more motivation to abstain, too; see stickk.com.) Further, the self-exclusion system operates in a fashion that is all but invisible to those satisfied gamblers who choose not to opt out. A more forceful version of an exclusion regime is to alter the default setting so that exclusion is the starting point: adults who want to gamble must opt-in, must take some positive steps to acquire a “license” to gamble. Those positive steps might be quite minor, such as a few days delay between the moment that a license (or “membership” in a casino, perhaps) is applied for and when the license is granted – this was a longtime British casino regulation – or something more involved, including passing an exam indicating that the applicant possesses a basic understanding of probabilities and the likelihood of monetary loss from casino gambling. People who choose not to take the requisite positive steps, then, people who do nothing, are thereby self-excluded.
The robustness principle, like Mill’s harm principle, suggests that gambling should be legal. As it would be difficult for people to gamble in a safe manner without gambling providers, “sales” of gambling services also must be legal. Casinos are the standard method of providing such services, though lotteries (the most popular form of gambling) generally operate in a separate system outside of casinos.
Robustness requires that the regulatory regime lead to acceptable outcomes even when many gamblers are addicted or misinformed or irrational with respect to their wagering behavior. These rationality shortfalls are not just theoretical in the case of gambling; rather, they are pervasive. Something on the order of one to two percent of the adult population typically falls within the clinical understanding of disordered gambling – though the percentage of casino patrons who are problem gamblers is much higher. These individuals suffer enormous costs stemming from their gambling fixation, including family breakdown, bankruptcy, and job loss. But even non-problem gamblers often misunderstand probabilities of winning and losing, and selectively forget past losses relative to wins, so that their views of their own gambling outcomes are quite skewed. Gamblers hold unreasonable beliefs about past play influencing future outcomes, such as the notion that a particular slot machine is “hot”: they believe (incorrectly) that the machine temporarily offers better winning prospects.
Countering incorrect beliefs is an important component of any robust gambling policy. Clear and prominent identification of the odds of winning (or perhaps of losing) could be mandated. One of the more startling facts about electronic gambling machines is that players are very poorly informed about the average “price” of a play. Regulations generally require slot machines to pay out some minimum percentage of their takings, such as 80%. A machine that costs $1 per play, and just met such a regulatory standard, therefore would have an average net price of 20 cents per play. But the machine might be set for an average return of 98% of the wagers, leaving an average net price of 2 cents per play. Gamblers typically are not informed the average net price of a play, however, even though it can vary by an order of magnitude across different machines (or on the same machine over time). Imagine going to the store and buying a loaf of bread, and not knowing until you bought it whether it cost $1 or $10. And in the case of the slot machines, unless you play for many, many hours, you can’t be confident of the average net price even after you make your purchases. A mandate to provide clear pricing information would seem to be an all but necessary element of a robust casino regulatory regime.
Price information might be provided in easy to understand ways, including the “average net price per play,” as described above. In addition, for instance, the expected loss per $100 wagered could be given. (Today’s networked, progressive slots imply that the expectation changes over time, but second-by-second updating is easy to electronically compute and display. The potential to play multiple lines on a slot machine also muddies the picture, but again, not in such a way that prices of different gambler options can’t be determined and displayed.) Other information that could continuously be on offer might be the amount of money wagered in a given session, the current net loss position, and the amount of time spent gambling. (Problem gamblers not only suffer from money woes, they also end up spending very significant amounts of time gambling, to the detriment of other dimensions of their lives.) The electronic cards that most regular gamblers use as part of casino loyalty programs also can be used to gather and disseminate this information.
Self-limit and self-exclusion programs should also be part of a robust gambling regulatory regime. A self-limit program allows gamblers to pre-commit as to how much money they are willing to lose prior to a gambling session. (The relevant timeframe could be longer, too, such as limiting losses per month or per year, or limits could be set across multiple timeframes.) The limit is irrevocable, so that in-the-moment passions cannot override judgments made earlier and (hopefully) in a more considered fashion. It would also be compatible with a robust regime to require every patron to choose a binding loss limit upon entering a casino – a policy Australia has considered implementing – as such a policy can do much to limit the harms of gambling, while imposing very little on rational bettors, who, like everyone, would be allowed to choose a very high limit if that is their preference.
Self-exclusion programs are an extreme form of self-limit, in that the limit is set to zero. Generally gamblers who choose to self-exclude are not allowed admission to a casino, and can even be charged with trespassing should they attempt to breach their agreement. Administration is less than perfect, but enforcement can be aided through technological means such as facial recognition software, or by requiring that all casino patrons present identification upon entering. (The imposition of an ID requirement on non-excluded gamblers is small enough that it would not violate robustness, and in any event, is often necessary to enforce age restrictions.) Many jurisdictions offer options concerning the duration of a self-exclusion agreement, some as brief as 6 months or a year, with longer durations including bans of 5 years or even for a lifetime.
A self-exclusion program allows gamblers to opt out, while offering more commitment to that choice than comes from most declarations of abstinence. (Individuals might be able to sign private commitment contracts that also raise the stakes of breaching a no-gambling pledge, and hence potentially provide more motivation to abstain, too; see stickk.com.) Further, the self-exclusion system operates in a fashion that is all but invisible to those satisfied gamblers who choose not to opt out. A more forceful version of an exclusion regime is to alter the default setting so that exclusion is the starting point: adults who want to gamble must opt-in, must take some positive steps to acquire a “license” to gamble. Those positive steps might be quite minor, such as a few days delay between the moment that a license (or “membership” in a casino, perhaps) is applied for and when the license is granted – this was a longtime British casino regulation – or something more involved, including passing an exam indicating that the applicant possesses a basic understanding of probabilities and the likelihood of monetary loss from casino gambling. People who choose not to take the requisite positive steps, then, people who do nothing, are thereby self-excluded.
Draft Two(a), Section 4
4. One Potential Guiding Principle to Vice Regulation
Despite the wide and changing variety of vices and the broad universe of potential controls, there might be some general principles underlying desirable vice regulations, as John Stuart Mill suggested. Mill’s harm principle presents a good place to start in seeking general principles, and is consistent (in Mill’s interpretation) with some rather severe controls, such as considerable sin taxes and bans on advertising. Nonetheless, the harm principle essentially does not allow harms inflicted on adult users themselves to motivate vice controls (Leitzel 2008). But the case for significant harms-to-self to be reflected in regulation is strengthened the more that adult vice-related decisions deviate from rational choices – an argument that Mill (1848 [1909], V.11.23) himself provides in a non-vice context in his Principles of Political Economy.
How far from rationality are adult vice-related decisions? Some of these decisions look like the product of diseased or addicted minds, and many other decisions seem to be significantly short-sighted. Nonetheless, most decisions to drink a beer or to visit a casino or perhaps even visit a prostitute are not hopelessly riddled with irrationality, and even the behavior of addicts possesses a certain logic (Becker and Murphy 1988.). If it were possible to separate the diseased or compulsive or irrational decisions from the fully judicious (or even reasonably judicious) ones, then (presumably) a desirable regulatory regime would intervene only on the irrational side of the ledger, leaving rational adults to their own vice-related devices. It is not possible to target regulations in such a fashion, however – indeed, even an individual, looking at her own behavior, might have a hard time distinguishing between her tolerably rational and her well-less-than-rational vice decisions.
Given the infeasibility of optimal targeting, then, one approach might be to try to limit the costs imposed by any of the less-than-perfect alternatives. A policy that prevents a good deal of rational (and hence individually beneficial) vice consumption from taking place presents a high cost in terms of that forgone pleasure, and if it involves prohibition, for instance, it could also mean significant costs in terms of harming the lives of many individuals who are arrested or imprisoned for engaging in a behavior that is not socially damaging. Alternatively, a policy that fails to dissuade imprudent vice or to lower the negative consequences attached to significant amounts of unconsidered or irrational vice participation involves large costs associated with those disordered vice choices. As we don’t (and probably can’t) know whether there is a good deal of rational vice behavior, or a good deal of irrational vice behavior, or both, there is something to be said for avoiding policies that would be disastrous under any of these circumstances. That is, vice policy should be robust with respect to the amount of rationality in vice-related choices (Leitzel 2008).
Policy regimes that exhibit this sort of robustness generally will look to encourage informed choice, perhaps by ensuring that accurate information about the potential dangers of vice is conveyed. Reliable information is an input into rational choice, but even informed choices can still be imprudent to the point of irrationality. So, a robust regime also will seek to counter addiction and excessive taste for instantaneous gratification, as long as the measures used for these purposes do not significantly impose upon rational adult vice consumption. Robust policies inform and instruct, but do not compel; they involve nudges (Thaler and Sunstein, 2008), not commands. They permit vice indulgence, but try to discourage excessive or imprudent involvement with vice (Bogart 2xxx).
In terms of current vice policies in the United States, for instance, some legal vices (alcohol and gambling, for instance) fall short of robustness by being insufficiently protective of less-than-rational or addicted consumers. But it is with respect to the illegal drugs and prostitution that current policies are least robust. The prohibitions that govern these vices not only preclude some “rational” consumption, they produce a host of other harms as well. In the case of drug prohibition, some 1.5 million people are arrested each year; more than 80% of these arrests are for mere possession. About half of the federal prison population in the US is serving time for drug-law violations. Police and inner-city youths are presented with considerable monetary inducements to tolerate or actively participate in the illicit drug trade, and many of them cannot resist these inducements. The underground markets are quite violent, and the violence spills over into urban neighborhoods more generally, while source and transit countries such as Mexico see drug-related homicides numbering in the tens of thousands annually. Drug prohibition not only does not meet the robustness principle, it can scarcely qualify as a rational policy itself.
The discussion of robustness so far has centered on consumers of vice, though there might also be concerns about the rationality of decisions to become a provider of vice, particularly (but not exclusively) with respect to pornography or prostitution. Some people enter these areas while they are still underage, and hence are not in a position to provide meaningful consent. An excessive present bias or a drug or alcohol habit might also undermine decision making, and lead to a neglect of long-term costs of sex work. Alcohol and drugs might be provided by unscrupulous business people precisely in an effort to break down reasonable reservations about performing in porn or engaging in prostitution. (Parallel concerns might exist surrounding decisions to enter the illicit drug trade.) For these reasons, a robust regime needs also to ensure that suppliers are non-coerced, well-informed, and have ample opportunities to exit vice provision.
Despite the wide and changing variety of vices and the broad universe of potential controls, there might be some general principles underlying desirable vice regulations, as John Stuart Mill suggested. Mill’s harm principle presents a good place to start in seeking general principles, and is consistent (in Mill’s interpretation) with some rather severe controls, such as considerable sin taxes and bans on advertising. Nonetheless, the harm principle essentially does not allow harms inflicted on adult users themselves to motivate vice controls (Leitzel 2008). But the case for significant harms-to-self to be reflected in regulation is strengthened the more that adult vice-related decisions deviate from rational choices – an argument that Mill (1848 [1909], V.11.23) himself provides in a non-vice context in his Principles of Political Economy.
How far from rationality are adult vice-related decisions? Some of these decisions look like the product of diseased or addicted minds, and many other decisions seem to be significantly short-sighted. Nonetheless, most decisions to drink a beer or to visit a casino or perhaps even visit a prostitute are not hopelessly riddled with irrationality, and even the behavior of addicts possesses a certain logic (Becker and Murphy 1988.). If it were possible to separate the diseased or compulsive or irrational decisions from the fully judicious (or even reasonably judicious) ones, then (presumably) a desirable regulatory regime would intervene only on the irrational side of the ledger, leaving rational adults to their own vice-related devices. It is not possible to target regulations in such a fashion, however – indeed, even an individual, looking at her own behavior, might have a hard time distinguishing between her tolerably rational and her well-less-than-rational vice decisions.
Given the infeasibility of optimal targeting, then, one approach might be to try to limit the costs imposed by any of the less-than-perfect alternatives. A policy that prevents a good deal of rational (and hence individually beneficial) vice consumption from taking place presents a high cost in terms of that forgone pleasure, and if it involves prohibition, for instance, it could also mean significant costs in terms of harming the lives of many individuals who are arrested or imprisoned for engaging in a behavior that is not socially damaging. Alternatively, a policy that fails to dissuade imprudent vice or to lower the negative consequences attached to significant amounts of unconsidered or irrational vice participation involves large costs associated with those disordered vice choices. As we don’t (and probably can’t) know whether there is a good deal of rational vice behavior, or a good deal of irrational vice behavior, or both, there is something to be said for avoiding policies that would be disastrous under any of these circumstances. That is, vice policy should be robust with respect to the amount of rationality in vice-related choices (Leitzel 2008).
Policy regimes that exhibit this sort of robustness generally will look to encourage informed choice, perhaps by ensuring that accurate information about the potential dangers of vice is conveyed. Reliable information is an input into rational choice, but even informed choices can still be imprudent to the point of irrationality. So, a robust regime also will seek to counter addiction and excessive taste for instantaneous gratification, as long as the measures used for these purposes do not significantly impose upon rational adult vice consumption. Robust policies inform and instruct, but do not compel; they involve nudges (Thaler and Sunstein, 2008), not commands. They permit vice indulgence, but try to discourage excessive or imprudent involvement with vice (Bogart 2xxx).
In terms of current vice policies in the United States, for instance, some legal vices (alcohol and gambling, for instance) fall short of robustness by being insufficiently protective of less-than-rational or addicted consumers. But it is with respect to the illegal drugs and prostitution that current policies are least robust. The prohibitions that govern these vices not only preclude some “rational” consumption, they produce a host of other harms as well. In the case of drug prohibition, some 1.5 million people are arrested each year; more than 80% of these arrests are for mere possession. About half of the federal prison population in the US is serving time for drug-law violations. Police and inner-city youths are presented with considerable monetary inducements to tolerate or actively participate in the illicit drug trade, and many of them cannot resist these inducements. The underground markets are quite violent, and the violence spills over into urban neighborhoods more generally, while source and transit countries such as Mexico see drug-related homicides numbering in the tens of thousands annually. Drug prohibition not only does not meet the robustness principle, it can scarcely qualify as a rational policy itself.
The discussion of robustness so far has centered on consumers of vice, though there might also be concerns about the rationality of decisions to become a provider of vice, particularly (but not exclusively) with respect to pornography or prostitution. Some people enter these areas while they are still underage, and hence are not in a position to provide meaningful consent. An excessive present bias or a drug or alcohol habit might also undermine decision making, and lead to a neglect of long-term costs of sex work. Alcohol and drugs might be provided by unscrupulous business people precisely in an effort to break down reasonable reservations about performing in porn or engaging in prostitution. (Parallel concerns might exist surrounding decisions to enter the illicit drug trade.) For these reasons, a robust regime needs also to ensure that suppliers are non-coerced, well-informed, and have ample opportunities to exit vice provision.
Draft Two(a), Section 3
3. Surveying the Range of Controls
a. Prohibition
Most vices, including forms of gambling, prostitution, pornography, alcohol, tobacco, and other psychoactive drugs have met with prohibitions at certain times and places, including contemporary times and places. The term “prohibition,” however, can be applied both to very strict and rather lenient regimes, not only because of variation in enforcement and associated penalties but also because of disparities concerning the precise vice-related activity that is prohibited. In the case of a drug, for instance, it is possible that there might be a full range of prohibitions, including bans on manufacture, transport, sale, advertising, purchase, possession, consumption, or even possession of inputs (precursors) or complements to consumption (paraphernalia). National alcohol prohibition in the US (1920-1933) did not involve a ban on purchase or possession, though these behaviors are banned for many of the currently illegal drugs. Sales of cannabis are prohibited in the Netherlands, but a formal non-enforcement policy has opened the door to de facto legal (small-scale) sales. Some countries have followed the lead of Sweden by adopting a prohibition on prostitution that bans the purchase, but not the sale, of sex; this policy reverses what in the past often has been (and in many places still is) the legal situation, where sales of sex are illegal but purchase is legal or informally countenanced.
b. Licensing and other Controls on Manufacturers and Sellers
Vices that are legal (in some manifestations) nonetheless often are highly regulated, and one element of that regulation typically involves the licensing of manufacturers and sellers. Commercial liquor producers, distributors, and retailers, for instance, are licensed in the United States. Lottery providers generally are licensed (or the state operates its own lottery monopoly), as are casinos. Brothels are licensed in those jurisdictions where brothel prostitution is legal, and cigarette sellers tend to be licensed as well.
Seller licensing can serve many purposes. Sales of legal vices often come with a wide variety of restrictions, and the licensing helps to enforce those ancillary rules, as sellers are identifiable and non-compliant sellers can be fined or have their licenses withdrawn. These ancillary rules implicate many dimensions of vice selling. Alcohol sellers face opening hours restrictions and a ban on sales to minors, for instance. Concern with excessive consumption might generate mandatory price floors to preclude prices that are deemed to be too low. Pornographic magazines and other material might not be allowed to be displayed openly, or restricted to adults-only areas of shops. Broadcast television and radio in the US is subject to stricter rules on “indecent” programming between the hours of 6AM and 10PM; other countries also restrict adult content programming to “watershed” hours when children are less likely to be viewing. Seller licensing can also be used to curb the overall prevalence of sellers – again as a measure, perhaps, to dissuade excessive consumption – and licensing facilitates tax collection.
Concerns about the recruitment of children into becoming vice consumers, as well as worries with adult intemperance, sometimes result in restrictions upon the advertising of legal vices. There is a sort of legal compromise: you can operate a licensed casino, but you cannot broadly advertise it, or you can operate a licensed liquor store, but you cannot publicly declare your commitment to low prices. Sometimes counter-advertising, in the form of public service advertisements highlighting the dangers of vice, or in printed warnings on the packaging of substances like alcoholic beverages and cigarettes, also is publicly mandated.
c. Taxation
One of the standard approaches to the correction of externalities is to impose a compensatory tax. The idea is to choose the size of the tax so that the costs imposed upon others are fully internalized by the decision maker. Such a tax, termed a Pigovian tax, perfectly compensates for the original distortion, so that individual rational decision making no longer comes at the expense of the social good. For this reason, there is a strong case for vice taxes to at least cover the average external costs of vice-related behavior – otherwise, vice essentially is subsidized. In the US, alcohol tends to be taxed at too low a level compared to the Pigovian standard, whereas cigarettes are taxed at a level that exceeds expected external costs.
Vice taxes might want to go further, however, and compensate for underrepresented harms to users themselves, along with accounting for external damage. That is, the distinct possibility that individuals might overconsume their vices due to their own rationality shortfalls offers a rationale for tax rates above the standard Pigovian levels. The tax in this case increases the immediate cost of vice consumption, helping to offset the excessive use stoked by present benefits paired with delayed and probabilistic costs. To the extent that such overconsumption (from the point of view of the vice consumer herself) is a problem, taxes actually can make the consumer better off – at least when she looks at her situation from her long-run perspective. It has been estimated that the future health costs of smoking a pack of cigarettes might be as high as xxxx, and the health costs of an alcoholic beverage have been estimated at xxxxx. Is it likely that smokers and drinkers are fully accounting for these costs when they make their tobacco and alcohol decisions?
Taxes can be used to discriminate among modes or forms of consumption; such discrimination might be appropriate given differential external and internal costs associated with the various modes. Distilled alcohol, for instance, can be taxed more highly than beer or wine; on-premises alcohol consumption can be taxed more heavily than package goods intended for off-premises consumption. Loose tobacco for self-rolling can be taxed at lower levels than cigarettes.
The revenue generated via sin taxes itself might become highly valued by those whose budgets are thereby boosted. The result can be a policy-induced ambivalence about vice, where lower consumption might be viewed as desirable in terms of the health of vice participants, but the resulting revenue declines might temper the public interest in promoting temperance. Vice-specific taxes create allies for vice sellers, constituencies that share a pecuniary interest in increased consumption. Sometimes such alliances are created in advance, to promote the legalization of a vice. The introduction of a state lottery, for instance, often involves a promise to earmark tax revenues to a worthy public endeavor, such as higher education.
d. Prescription
Some drugs such as morphine and cocaine have recognized medicinal uses. Even in cases where those drugs fall under a general sort of manufacturing and sales prohibition, they can be made available to appropriate patients via prescription. Complications ensue when: (1) there is severe disagreement about the medical value of the drugs (as seems to be the case with marijuana, which is not legal currently for medical use at the federal level in the US, though medical marijuana is legal under the law of some 20 states); (2) there is severe leakage from the authorized medical supply to unauthorized recreational use, as with some popular painkillers; and (3) the authorized medical use involves treating addiction to the drug or a related drug itself, as with heroin or methadone maintenance for heroin addicts. As many of the harms associated with addiction to a prohibited substance are due to the expense and insalubrious nature of black-market dealings – which include purchasing drugs of unknown purity and potency – the provision of pharmaceutical grade drugs to addicts, in a safe setting, can lower the overall social costs of addiction.
e. Time, Place, and Manner Controls
Just as purveyors of legal vices often are highly regulated, so too vice consumers can face detailed restrictions on the acceptable time, place, and manner of consumption. Cigarette smoking, for instance, is not permitted in many work places and public buildings, and sometimes smoking is forbidden in private automobiles if children are passengers. Public drinking and possession of open alcoholic beverage containers are other actions that commonly are forbidden, though drinking itself is legal. Nudity and obscene speech that is legal in private might be illegal in public. Gambling might be allowed, but not on public transportation.
f. Individual-level Controls
Prescription systems provide drug access on an individualized basis, and a variety of other controls also permit individual circumstances to influence the terms under which drugs are made legally available. One possibility is to permit adult drug purchase and consumption, but to make an adult’s continued legal access contingent on specified types of good behavior. For instance, someone who is convicted of drunk driving or domestic violence might lose the right to consume alcohol. The ban can be enforced by frequent testing or continuous alcohol monitoring technology – an approach which has been used extensively in South Dakota and has spread to numerous other jurisdictions, and can be deployed against other drugs (Kilmer and Humphreys 2013). Enforced vice abstinence might be voluntarily chosen, as with gambling self-exclusion programs. People concerned about their own willpower shortages can then enlist the regulatory regime to aid them in their effort to avoid vice altogether, or to limit it: an exclusion program might allow a loss-limit to be established before entering a casino, or restrict the number of monthly visits to betting parlors, for instance. Exclusions might also derive from sources other than the legal authorities or the vice consumer him or herself: in Singapore and some other jurisdictions, family members can initiate a gambler’s exclusion from casinos. Casinos themselves might choose to make suspected problem gamblers feel unwelcome (Thompson 2010), perhaps under regulatory pressure or as a result of potential civil liability.
Rather than start from a position of general adult availability, from which some people can be forcibly or voluntarily removed, the default position could be no legal access to vice, but with the possibility of opting in (Leitzel 2013). People could apply for a license to consume heroin, for instance, and the conditions under which it is made available can be designed to reduce the probability of the development of compulsive use. And as with exclusion systems, licenses can be withdrawn from consumers who commit crimes under the influence of their drugs. Such a system of positive licensing also puts vice consumers in touch with the regulatory system in a manner that can facilitate their access to treatment resources, should addiction occur despite the safeguards. Individualized systems of alcohol control, such as a person-by-person rationing scheme (with a modest upper limit) in Sweden, were common between the 1920s and 1960s, fell out of favor, but now are seeing new implementations (Room 2012).
a. Prohibition
Most vices, including forms of gambling, prostitution, pornography, alcohol, tobacco, and other psychoactive drugs have met with prohibitions at certain times and places, including contemporary times and places. The term “prohibition,” however, can be applied both to very strict and rather lenient regimes, not only because of variation in enforcement and associated penalties but also because of disparities concerning the precise vice-related activity that is prohibited. In the case of a drug, for instance, it is possible that there might be a full range of prohibitions, including bans on manufacture, transport, sale, advertising, purchase, possession, consumption, or even possession of inputs (precursors) or complements to consumption (paraphernalia). National alcohol prohibition in the US (1920-1933) did not involve a ban on purchase or possession, though these behaviors are banned for many of the currently illegal drugs. Sales of cannabis are prohibited in the Netherlands, but a formal non-enforcement policy has opened the door to de facto legal (small-scale) sales. Some countries have followed the lead of Sweden by adopting a prohibition on prostitution that bans the purchase, but not the sale, of sex; this policy reverses what in the past often has been (and in many places still is) the legal situation, where sales of sex are illegal but purchase is legal or informally countenanced.
b. Licensing and other Controls on Manufacturers and Sellers
Vices that are legal (in some manifestations) nonetheless often are highly regulated, and one element of that regulation typically involves the licensing of manufacturers and sellers. Commercial liquor producers, distributors, and retailers, for instance, are licensed in the United States. Lottery providers generally are licensed (or the state operates its own lottery monopoly), as are casinos. Brothels are licensed in those jurisdictions where brothel prostitution is legal, and cigarette sellers tend to be licensed as well.
Seller licensing can serve many purposes. Sales of legal vices often come with a wide variety of restrictions, and the licensing helps to enforce those ancillary rules, as sellers are identifiable and non-compliant sellers can be fined or have their licenses withdrawn. These ancillary rules implicate many dimensions of vice selling. Alcohol sellers face opening hours restrictions and a ban on sales to minors, for instance. Concern with excessive consumption might generate mandatory price floors to preclude prices that are deemed to be too low. Pornographic magazines and other material might not be allowed to be displayed openly, or restricted to adults-only areas of shops. Broadcast television and radio in the US is subject to stricter rules on “indecent” programming between the hours of 6AM and 10PM; other countries also restrict adult content programming to “watershed” hours when children are less likely to be viewing. Seller licensing can also be used to curb the overall prevalence of sellers – again as a measure, perhaps, to dissuade excessive consumption – and licensing facilitates tax collection.
Concerns about the recruitment of children into becoming vice consumers, as well as worries with adult intemperance, sometimes result in restrictions upon the advertising of legal vices. There is a sort of legal compromise: you can operate a licensed casino, but you cannot broadly advertise it, or you can operate a licensed liquor store, but you cannot publicly declare your commitment to low prices. Sometimes counter-advertising, in the form of public service advertisements highlighting the dangers of vice, or in printed warnings on the packaging of substances like alcoholic beverages and cigarettes, also is publicly mandated.
c. Taxation
One of the standard approaches to the correction of externalities is to impose a compensatory tax. The idea is to choose the size of the tax so that the costs imposed upon others are fully internalized by the decision maker. Such a tax, termed a Pigovian tax, perfectly compensates for the original distortion, so that individual rational decision making no longer comes at the expense of the social good. For this reason, there is a strong case for vice taxes to at least cover the average external costs of vice-related behavior – otherwise, vice essentially is subsidized. In the US, alcohol tends to be taxed at too low a level compared to the Pigovian standard, whereas cigarettes are taxed at a level that exceeds expected external costs.
Vice taxes might want to go further, however, and compensate for underrepresented harms to users themselves, along with accounting for external damage. That is, the distinct possibility that individuals might overconsume their vices due to their own rationality shortfalls offers a rationale for tax rates above the standard Pigovian levels. The tax in this case increases the immediate cost of vice consumption, helping to offset the excessive use stoked by present benefits paired with delayed and probabilistic costs. To the extent that such overconsumption (from the point of view of the vice consumer herself) is a problem, taxes actually can make the consumer better off – at least when she looks at her situation from her long-run perspective. It has been estimated that the future health costs of smoking a pack of cigarettes might be as high as xxxx, and the health costs of an alcoholic beverage have been estimated at xxxxx. Is it likely that smokers and drinkers are fully accounting for these costs when they make their tobacco and alcohol decisions?
Taxes can be used to discriminate among modes or forms of consumption; such discrimination might be appropriate given differential external and internal costs associated with the various modes. Distilled alcohol, for instance, can be taxed more highly than beer or wine; on-premises alcohol consumption can be taxed more heavily than package goods intended for off-premises consumption. Loose tobacco for self-rolling can be taxed at lower levels than cigarettes.
The revenue generated via sin taxes itself might become highly valued by those whose budgets are thereby boosted. The result can be a policy-induced ambivalence about vice, where lower consumption might be viewed as desirable in terms of the health of vice participants, but the resulting revenue declines might temper the public interest in promoting temperance. Vice-specific taxes create allies for vice sellers, constituencies that share a pecuniary interest in increased consumption. Sometimes such alliances are created in advance, to promote the legalization of a vice. The introduction of a state lottery, for instance, often involves a promise to earmark tax revenues to a worthy public endeavor, such as higher education.
d. Prescription
Some drugs such as morphine and cocaine have recognized medicinal uses. Even in cases where those drugs fall under a general sort of manufacturing and sales prohibition, they can be made available to appropriate patients via prescription. Complications ensue when: (1) there is severe disagreement about the medical value of the drugs (as seems to be the case with marijuana, which is not legal currently for medical use at the federal level in the US, though medical marijuana is legal under the law of some 20 states); (2) there is severe leakage from the authorized medical supply to unauthorized recreational use, as with some popular painkillers; and (3) the authorized medical use involves treating addiction to the drug or a related drug itself, as with heroin or methadone maintenance for heroin addicts. As many of the harms associated with addiction to a prohibited substance are due to the expense and insalubrious nature of black-market dealings – which include purchasing drugs of unknown purity and potency – the provision of pharmaceutical grade drugs to addicts, in a safe setting, can lower the overall social costs of addiction.
e. Time, Place, and Manner Controls
Just as purveyors of legal vices often are highly regulated, so too vice consumers can face detailed restrictions on the acceptable time, place, and manner of consumption. Cigarette smoking, for instance, is not permitted in many work places and public buildings, and sometimes smoking is forbidden in private automobiles if children are passengers. Public drinking and possession of open alcoholic beverage containers are other actions that commonly are forbidden, though drinking itself is legal. Nudity and obscene speech that is legal in private might be illegal in public. Gambling might be allowed, but not on public transportation.
f. Individual-level Controls
Prescription systems provide drug access on an individualized basis, and a variety of other controls also permit individual circumstances to influence the terms under which drugs are made legally available. One possibility is to permit adult drug purchase and consumption, but to make an adult’s continued legal access contingent on specified types of good behavior. For instance, someone who is convicted of drunk driving or domestic violence might lose the right to consume alcohol. The ban can be enforced by frequent testing or continuous alcohol monitoring technology – an approach which has been used extensively in South Dakota and has spread to numerous other jurisdictions, and can be deployed against other drugs (Kilmer and Humphreys 2013). Enforced vice abstinence might be voluntarily chosen, as with gambling self-exclusion programs. People concerned about their own willpower shortages can then enlist the regulatory regime to aid them in their effort to avoid vice altogether, or to limit it: an exclusion program might allow a loss-limit to be established before entering a casino, or restrict the number of monthly visits to betting parlors, for instance. Exclusions might also derive from sources other than the legal authorities or the vice consumer him or herself: in Singapore and some other jurisdictions, family members can initiate a gambler’s exclusion from casinos. Casinos themselves might choose to make suspected problem gamblers feel unwelcome (Thompson 2010), perhaps under regulatory pressure or as a result of potential civil liability.
Rather than start from a position of general adult availability, from which some people can be forcibly or voluntarily removed, the default position could be no legal access to vice, but with the possibility of opting in (Leitzel 2013). People could apply for a license to consume heroin, for instance, and the conditions under which it is made available can be designed to reduce the probability of the development of compulsive use. And as with exclusion systems, licenses can be withdrawn from consumers who commit crimes under the influence of their drugs. Such a system of positive licensing also puts vice consumers in touch with the regulatory system in a manner that can facilitate their access to treatment resources, should addiction occur despite the safeguards. Individualized systems of alcohol control, such as a person-by-person rationing scheme (with a modest upper limit) in Sweden, were common between the 1920s and 1960s, fell out of favor, but now are seeing new implementations (Room 2012).
Draft Two(a), Section 2
2. Why Regulate Vice?
The shared qualities of vicious habits, especially the lack of direct harms to others, suggest the possibility that desirable regulations for various vices also will possess some common features -- features that might not be appropriate when controlling activities such as burglary that involve serious harms to others.
Why should vices be controlled at all? One possibility is that a subset of vicious activities, such as drinking to the point of inebriation, though self-regarding in themselves, might be closely connected with harm to others: drunk people often put others at serious risk through automobile accidents and interpersonal violence, and annoy their communities through loud and boorish behavior: maybe you should be concerned if your neighbor drinks regularly. If methods of directly controlling such ancillary harms are deemed to be insufficient, then some regulations upon drinking aimed not so much at controlling alcohol consumption as at limiting the follow-on behaviors might be sensible. A similar principle applies with respect to protecting children: some controls on adult vice might be enacted to help shield children from vice, if it is not possible to effectively control child access in an unregulated environment for adults. Indeed, those substances or behaviors that are unregulated even for children tend to be at the edges of what is considered vice: caffeine and sugary foods are cases in point.
The need to deal with threats to the underaged and with externalities does not exhaust the rationale for controlling vice, however. Vices can harm their consenting adult participants, and a bad habit can shade into a compulsion or addiction. The standard time profile of the chief effects of a vice involves current pleasure and future pain, and the pain is not a certainty. A regular drinker might not become an alcoholic, a regular cigarette smoker might not get cancer. In the face of the common human frailty of an excessive interest in instant gratification, current benefits paired with uncertain future costs are likely to lead to overindulgence, even from the longer-term point of view of the vice participant himself. Vices seem particularly likely to compromise rational decisionmaking, in the form of acute loss of restraint by the non-addicted as well as in addicts. While addiction does not eliminate all control, it does press hard against limited stores of willpower, to the point where addicts, scientists, and seasoned observers often regard addiction as a disease of the brain. The basic economic argument for laissez faire is that, in the absence of harms to others, an unfettered competitive marketplace leads to maximum overall wellbeing. This argument is inapplicable, however, if individual decisions are the product of disease or are otherwise less-than-rational.
The idea to regulate adult vice for the sake of protecting kids and protecting against direct harms to others is not itself particularly controversial, though there might be significant disagreement over what specific controls will accomplish those ends, as well as differences concerning the costs of potential regulations. Protecting adults from their own decisionmaking tends to be more controversial, however. John Stuart Mill, for instance, would support attempts at persuasion, pro or con, at least if those attempts are not undertaken by parties with a pecuniary interest in promoting intemperate vice consumption – but Mill’s harm-to-others condition for societal coercion generally would bar regulations aimed at reducing adult vice consumption. Certainly the prohibition of a vice would not be countenanced by Mill, any more than bans on other dangerous, self-regarding activities, such as swimming or skiing, could be countenanced. The “sin taxes” that often are enacted against legal vices often seem to be more interested in raising revenue (and perhaps registering societal disdain) than at reducing consumption. Mill himself approved of sin taxes if their aim was to raise revenue – but not if their motive was to dissuade vice consumption – and therefore, his approval only was forthcoming as long as the taxes did not exceed the revenue-maximizing level.
Actual vice policy frequently is quite un-Millian, however, in that highly restrictive policies are enacted that have as a major goal that of protecting adult consumers, often by threatening negative legal consequences upon those very adults who choose to consume in the face of the prohibition. Policies that threaten to harm people to deter them from harming themselves tend to invoke the full range of rationales, of course, including the protection of children and the need to prevent harms to others. But to the extent that harms to the users are driving the restrictive policies, these policies involve a somewhat self-contradictory view of rationality: adult vice consumers cannot be trusted to make decisions that are in their best interests, but the punitive measures will only provide deterrence if those users respond rationally to the legislated legal consequences.
Even in a world without vice-specific public policies, vice would still be subject to informal social controls: the immorality that is associated with vice needn’t dissipate just because the law is not mobilized. Agitation by moral entrepreneurs and religious groups for temperance or abstinence is a standard element of discussions surrounding legal vices such as drinking and gambling.
The shared qualities of vicious habits, especially the lack of direct harms to others, suggest the possibility that desirable regulations for various vices also will possess some common features -- features that might not be appropriate when controlling activities such as burglary that involve serious harms to others.
Why should vices be controlled at all? One possibility is that a subset of vicious activities, such as drinking to the point of inebriation, though self-regarding in themselves, might be closely connected with harm to others: drunk people often put others at serious risk through automobile accidents and interpersonal violence, and annoy their communities through loud and boorish behavior: maybe you should be concerned if your neighbor drinks regularly. If methods of directly controlling such ancillary harms are deemed to be insufficient, then some regulations upon drinking aimed not so much at controlling alcohol consumption as at limiting the follow-on behaviors might be sensible. A similar principle applies with respect to protecting children: some controls on adult vice might be enacted to help shield children from vice, if it is not possible to effectively control child access in an unregulated environment for adults. Indeed, those substances or behaviors that are unregulated even for children tend to be at the edges of what is considered vice: caffeine and sugary foods are cases in point.
The need to deal with threats to the underaged and with externalities does not exhaust the rationale for controlling vice, however. Vices can harm their consenting adult participants, and a bad habit can shade into a compulsion or addiction. The standard time profile of the chief effects of a vice involves current pleasure and future pain, and the pain is not a certainty. A regular drinker might not become an alcoholic, a regular cigarette smoker might not get cancer. In the face of the common human frailty of an excessive interest in instant gratification, current benefits paired with uncertain future costs are likely to lead to overindulgence, even from the longer-term point of view of the vice participant himself. Vices seem particularly likely to compromise rational decisionmaking, in the form of acute loss of restraint by the non-addicted as well as in addicts. While addiction does not eliminate all control, it does press hard against limited stores of willpower, to the point where addicts, scientists, and seasoned observers often regard addiction as a disease of the brain. The basic economic argument for laissez faire is that, in the absence of harms to others, an unfettered competitive marketplace leads to maximum overall wellbeing. This argument is inapplicable, however, if individual decisions are the product of disease or are otherwise less-than-rational.
The idea to regulate adult vice for the sake of protecting kids and protecting against direct harms to others is not itself particularly controversial, though there might be significant disagreement over what specific controls will accomplish those ends, as well as differences concerning the costs of potential regulations. Protecting adults from their own decisionmaking tends to be more controversial, however. John Stuart Mill, for instance, would support attempts at persuasion, pro or con, at least if those attempts are not undertaken by parties with a pecuniary interest in promoting intemperate vice consumption – but Mill’s harm-to-others condition for societal coercion generally would bar regulations aimed at reducing adult vice consumption. Certainly the prohibition of a vice would not be countenanced by Mill, any more than bans on other dangerous, self-regarding activities, such as swimming or skiing, could be countenanced. The “sin taxes” that often are enacted against legal vices often seem to be more interested in raising revenue (and perhaps registering societal disdain) than at reducing consumption. Mill himself approved of sin taxes if their aim was to raise revenue – but not if their motive was to dissuade vice consumption – and therefore, his approval only was forthcoming as long as the taxes did not exceed the revenue-maximizing level.
Actual vice policy frequently is quite un-Millian, however, in that highly restrictive policies are enacted that have as a major goal that of protecting adult consumers, often by threatening negative legal consequences upon those very adults who choose to consume in the face of the prohibition. Policies that threaten to harm people to deter them from harming themselves tend to invoke the full range of rationales, of course, including the protection of children and the need to prevent harms to others. But to the extent that harms to the users are driving the restrictive policies, these policies involve a somewhat self-contradictory view of rationality: adult vice consumers cannot be trusted to make decisions that are in their best interests, but the punitive measures will only provide deterrence if those users respond rationally to the legislated legal consequences.
Even in a world without vice-specific public policies, vice would still be subject to informal social controls: the immorality that is associated with vice needn’t dissipate just because the law is not mobilized. Agitation by moral entrepreneurs and religious groups for temperance or abstinence is a standard element of discussions surrounding legal vices such as drinking and gambling.
Draft Two(a), Section 1
Regulating Vice
“He who seeks to regulate everything by law, is more likely to arouse vices than to reform them. It is best to grant what cannot be abolished, even though it be in itself harmful. How many evils spring from luxury, envy, avarice, drunkenness, and the like, yet these are tolerated – vices as they are – because they cannot be prevented by legal enactments.” – Spinoza, Chapter 20, Tractatus-Theologico-Politicus, 1670.
1. Vice
Behaviors that long have been considered to be vices include excessive or habitual indulgence in gambling, some sexual activities, and the use of psychoactive drugs such as nicotine or alcohol or opium. Pornography often is classed among the vices, and US Supreme Court Justice Potter Stewart’s famous abdication from providing a precise definition of pornography – “I know it when I see it” – might equally well apply to vice (Jacobellis v. Ohio, 378 U.S. 184 (1964)). Nonetheless, any effort to offer a more detailed, if not more precise definition, likely would invoke the notion of a bad habit, and often a habit where a supposed immorality is at least one element of the “badness.” For this reason, some behaviors that no longer are widely perceived as immoral also have lost their vicious quality, while habits that are losing social favor become more allied with vice. Routines such as compulsive book reading or exercise, which can bring negative consequences upon the practitioner and his or her intimates, avoid the vice label through their lack of the taint of immorality.
An excessive attachment to armed robbery might constitute an immoral routine, but such a commitment lacks another component of vice, namely, that vices, at least in some of their common manifestations, do not involve any direct harms foisted upon non-consenting bystanders, do not involve any substantial negative externalities. That is, indulgence in a vice might harm the indulger, but others needn’t fear any immediate danger, especially if the vicious activity does not take place in a pubic setting. If someone down the street from you habitually drinks alcohol, or smokes crack, or is entertained by prostitutes, you generally can rest easy, at least if their practices are committed in private. A committed burglar down the street is worth more of your concern. Unlike burglary, many vice behaviors, to employ the terminology of Bentham and Mill, are self-regarding.
“He who seeks to regulate everything by law, is more likely to arouse vices than to reform them. It is best to grant what cannot be abolished, even though it be in itself harmful. How many evils spring from luxury, envy, avarice, drunkenness, and the like, yet these are tolerated – vices as they are – because they cannot be prevented by legal enactments.” – Spinoza, Chapter 20, Tractatus-Theologico-Politicus, 1670.
1. Vice
Behaviors that long have been considered to be vices include excessive or habitual indulgence in gambling, some sexual activities, and the use of psychoactive drugs such as nicotine or alcohol or opium. Pornography often is classed among the vices, and US Supreme Court Justice Potter Stewart’s famous abdication from providing a precise definition of pornography – “I know it when I see it” – might equally well apply to vice (Jacobellis v. Ohio, 378 U.S. 184 (1964)). Nonetheless, any effort to offer a more detailed, if not more precise definition, likely would invoke the notion of a bad habit, and often a habit where a supposed immorality is at least one element of the “badness.” For this reason, some behaviors that no longer are widely perceived as immoral also have lost their vicious quality, while habits that are losing social favor become more allied with vice. Routines such as compulsive book reading or exercise, which can bring negative consequences upon the practitioner and his or her intimates, avoid the vice label through their lack of the taint of immorality.
An excessive attachment to armed robbery might constitute an immoral routine, but such a commitment lacks another component of vice, namely, that vices, at least in some of their common manifestations, do not involve any direct harms foisted upon non-consenting bystanders, do not involve any substantial negative externalities. That is, indulgence in a vice might harm the indulger, but others needn’t fear any immediate danger, especially if the vicious activity does not take place in a pubic setting. If someone down the street from you habitually drinks alcohol, or smokes crack, or is entertained by prostitutes, you generally can rest easy, at least if their practices are committed in private. A committed burglar down the street is worth more of your concern. Unlike burglary, many vice behaviors, to employ the terminology of Bentham and Mill, are self-regarding.
A Fast Retreat
Well, Draft Two(a) was due a couple weeks ago, and Draft Three(a) was due today. But that was under the old, outmoded deadlines! The new, improved (ahem) deadlines call for Draft Two(a) to be posted today. Except for the last section and the References, I hope to indeed post a really raw Draft Two(a).
The current Table of Contents of the paper -- which itself has the working title "Regulating Vice," looks like this:
1. Vice
2. Why Regulate Vice?
3. Surveying the Range of Controls
a. Prohibition
e. Time, Place, and Manner Controls
f. Individual-level controls
4. One Potential Guiding Principle to Vice Regulation
5. Robustly Regulating Casino Gambling
6. Changing Times
7. Vice 3.0 [no draft available]
References [no draft available]
OK, time to post what exists, with the usual caveats that it is incomplete, missing references, and often wrong; therefore (?), comments are welcome.
The current Table of Contents of the paper -- which itself has the working title "Regulating Vice," looks like this:
1. Vice
2. Why Regulate Vice?
3. Surveying the Range of Controls
a. Prohibition
b. Licensing and other Controls on Manufacturers and Sellers
c. Taxation
d. Prescriptione. Time, Place, and Manner Controls
f. Individual-level controls
4. One Potential Guiding Principle to Vice Regulation
5. Robustly Regulating Casino Gambling
6. Changing Times
7. Vice 3.0 [no draft available]
References [no draft available]
OK, time to post what exists, with the usual caveats that it is incomplete, missing references, and often wrong; therefore (?), comments are welcome.
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