Draft 3.5(a), Section Three, second half

d. Prescription

Some drugs such as morphine and cocaine that are used recreationally also have recognized medicinal uses. (Many popular drugs, including distilled alcohol and tobacco, achieved broad global footholds in part through perceived medical benefits.) 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 city buses, and features of electronic gaming machines (such as rate of play, stakes, and deceptive “near misses”) can be the subjects of regulation.

f. Individual-level Controls

Prescription systems provide drug access on an individualized basis, and a variety of other controls also permit specific personal circumstances to influence the terms under which drugs are made legally available. One possibility is to authorize 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 drinking-related 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 the consumption of drugs other than alcohol (Kilmer and Humphreys 2013).

Enforced vice abstinence might be voluntarily chosen, as with gambling self-exclusion. These programs allow people concerned about their own willpower shortages to relinquish, for some period of time such as one or five years, their right to gamble. Casinos are supposed to prevent self-excluded individuals from entering their premises; if the self-banned gamblers avoid detection, they will be unable to collect any sizeable winnings, because identification must be provided to make such a collection and their excluded status will be revealed. Self-exclusion programs have become an important tool in countering disordered gambling. Voluntary bans can be partial as well as full: 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. Full or partial exclusions might also derive from sources other than the legal authorities or the vice consumer him or herself: in Singapore, 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 with an eye to limiting potential civil liability.

A regime where vice is legal but some people are dissuaded or barred from partaking often holds appeal to vice suppliers. Manufacturers and sellers understand that the continuing legality of their product is not guaranteed. A narrative that suggests that their product (liquor or gambling, say) is wholesome for most users, but that a small minority are susceptible to a sort of disease of disordered consumption, tends to shift the focus of regulatory attention away from the product itself (the vice) and onto the group of vulnerable users (the set).

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). Adults 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 likelihood of the development of compulsive use. For instance, purchases might have to be arranged in advance, with the transaction consummated three days later, to counter impulsive consumption. Licenses can be withdrawn from consumers who commit crimes or harm others under the influence of their drugs. Such a licensing system 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 enjoying a small-scale renaissance in the form of mandatory abstention orders (Room 2012).