Draft 3.5(a), Section Four

4. One Guiding Principle for 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 guidelines, 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 patronize a casino or (perhaps) 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, 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, one approach is 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 perhaps broadly disapproved but not otherwise socially damaging. Alternatively, a policy that fails to dissuade imprudent vice or to mitigate the negative consequences attached to significant amounts of unconsidered or irrational vice participation generates large costs associated with those disordered vice choices. As we can’t be fully certain 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 governing 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 methods 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 but do not promote vice indulgence, while trying to discourage excessive or imprudent involvement with vice (Bogart 2011).

 In terms of current vice policies in the United States, some policy regimes regulating 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 small-scale possession (Crime in the United States 2012). About half of the federal prison population in the US is serving time for drug-law violations (Federal Bureau of Prisons). 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 (understandably) 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 that can number in the tens of thousands annually. US-style 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 “industries” 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 the long-term costs of sex work. Alcohol and drugs might be provided by unscrupulous (or criminal) 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 to ensure that suppliers are non-coerced, well-informed, and have ample opportunities to exit vice provision.

Much of the public dialogue about vice policy pointedly ignores the potential benefits of vice, focusing only on the costs. As the total costs arise both from the prevalence of vicious behavior and the average cost per “use” or “incident,” policy that is interested in reducing costs might aim at limiting prevalence, or at reducing the harm per incident. Prevalence and harm-per-incident are not independent, however: policies such as a strict prohibition that try to reduce (or, as “zero tolerance” suggests, eliminate) the prevalence of a vice tend to simultaneously raise the cost per incident (MacCoun and Reuter, 2001). Drug prohibition, for instance, results in more potent varieties traded in the underground market, which itself can be quite violent. Drug addicts in need of treatment might be afraid to go to the hospital (or their friends might refrain from taking them to the hospital), out of fear that the criminal law will be arrayed against them should they present for a drug-related problem.

What has become known as the “harm reduction” or “harm minimization” approach to illicit drugs typically focuses on reducing the harms per incident, while being rather unconcerned about overall prevalence or whether the harms are external or suffered by the vice participants themselves. Policies that fall under the drug harm reduction rubric include: (1) the provision of maintenance doses for opiate addicts; (2) monitored sites in which injecting can take place in a safe manner; (3) clean needle exchanges for injecting drug users; (4) the liberal availability of opiate antagonists to reverse potential overdoses; (5) good Samaritan laws that preclude criminal charges against drug users or their friends when they present at an emergency room for treatment; and, (6) drug purity testing so that users can know what they are taking. Such policies are common in Europe, though remain controversial in the US. These sorts of harm reduction measures push the existing prohibition regime somewhat closer to meeting the robustness standard, by reducing the ancillary costs associated with prohibition, with little or no spur to the prevalence of drug use from these “subsidies.” For vices that already are governed by regimes less strict than drug prohibition, harm reduction’s neglect of the benefits of vice eventually would drive a wedge between robust policies and harm-reducing measures. Perhaps an easy-to-enforce prohibition would minimize the costs associated with some vice by eliminating it, but such a policy would not meet the robustness criterion, by being too constraining on “rational” would-be users.