Draft Three, Section 3.1

3. The Alcohol Model, Plus Exclusion

Alcohol control offers one known model upon which to build for the regulation of legal, psychoactive drugs. Standard approaches to alcohol control start with a ban on purchases by minors. Sellers are licensed by the state, or the state maintains its own retail stores – these are the two options closely examined by Fosdick and Scott. The sellers operate under a whole host of rules, governing location, opening hours, advertising, and so on, and these controls differ depending on whether the sales are for on-premises consumption or for carry-out. Special excise taxes are applied to alcohol; these taxes typically are calibrated in such a way as to disfavor relatively potent (distilled) alcoholic beverages.

3.1 Mandatory Exclusion

The alcohol regulatory model probably is too permissive to serve as a comprehensive template for a system of control aimed at the currently illegal drugs, at least for the harder drugs within the prohibited class. The model can be augmented, however, by continuing prohibitions on users whose consumption is particularly problematic: mandatory exclusions. Adults can lose, for cause, their privilege to purchase or consume the otherwise legal drug. In the case of alcohol, some of the infractions that would lead to a revocation of purchasing privileges would be transfer of liquor to an underaged or otherwise excluded 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 privilege (for a limited time, or, in severe circumstances, permanently) might not exhaust the penalties imposed for these infractions, of course.

How can such an individual-specific exclusion be enforced? One possibility is that all potential alcohol buyers would have to be screened at the time of purchase, to ensure they had not lost their purchasing privilege. A version of this approach currently is applied to enforce the minimum age requirement: all sufficiently young-looking individuals are supposed to be asked for proof of age when attempting to purchase alcohol. An alternative (or complementary) exclusion enforcement method involves frequent testing for alcohol consumption. One advantage to this type of enforcement is 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.

Exclusion from the privilege to purchase or consume traditionally has not played a significant role in the regulation of alcohol within the US: convicted drunk drivers might lose their driver’s license, but not their drinker’s “license.”[i] Variations on the theme of alcohol exclusion currently are spreading, however. 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 ongoing 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.[ii] 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.[iii]

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[i] Mandated ignition interlock devices are a sort of targeted driving exclusion, temporarily suspending the driving (though not the drinking) privileges of someone who fails the requisite in-car sobriety test.

[ii] See http://apps.sd.gov/atg/dui247/index.htm.

[iii] For the website of one leading alcohol monitoring company, see http://www.alcoholmonitoring.com/index.

Draft Three, Sections 2.2 through 2.4

2.2 Transform

Transform is a British Drug Policy Foundation (www.tdpf.org.uk) that has developed a detailed guide to global drug legalization. Their 2009 publication, 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. The criminality associated with prohibition is a major concern; avoiding continued lawlessness restricts the stringency of regulations that should govern in a legalized regime. There is a recognition that uncontrolled commercial forces could lead to highly undesirable outcomes. As a result, seller licensing, advertising limitations, and pricing interventions are all called for. 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 licensed, nonprofit 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.

2.3 Portugal

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.

Possession and use of marijuana with a physician’s recommendation is legal under California state law, and caregivers also are licensed to grow and transfer marijuana. The medical marijuana system is lenient enough that it can be utilized by consumers to provide a de facto state license for recreational use.[iv] The federal prohibition still is in effect, though, and serves as a rationale for discriminating against medical marijuana users in employment. In California, medical marijuana consumers, behaving legally under state law, still can be fired from their job following a positive cannabis test.

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 these problems as health issues, not criminal justice concerns – 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. Sections 3 and 4 below examine two types of policies that reflect these same principles.

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[i] Hughes and Stevens (2010).

[ii] Greenwald (2009, pages 27-28).

[iii] Peter Beaumont, “What Britain Could Learn from Portugal’s Drugs Policy,” The Observer, September 5, 2010.

[iv] The distinction between recreational and medical use is not one that I support as a basis for determining legality; indeed, I support legal (though not unfettered) access for adults to drugs for either medical or recreational purposes. If a drug makes someone feel better, is the drug use medical or recreational?

Draft Three, Section 2.1

2. Some Major Contributions to Ending Prohibition

The four contributions that I look at here come 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 21^st 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 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 within a regime of legal alcohol. Third, Fosdick and Scott note that distilled alcohol is much more socially dangerous than beer and wine, and argue for much tighter controls for 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 promote 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.”[i] 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.[ii]

Fosdick and Scott (pp. 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. Further, they foresee that some people will automatically have their privilege to purchase alcohol revoked, as part of the regulations imposed upon sellers: “Rules are also necessary forbidding sale to minors, habitual alcoholics, paupers, mental defectives and to anyone who is drunk [p. 49, footnote omitted].”

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[i] Fosdick and Scott (1933, p. 19).

[ii] 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.

Draft Three, Introduction

Toward Drug Control: Exclusion and Buyer Licensing

Jim Leitzel

“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.

1. Introduction

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 generally is a “self regarding” activity, one that does not involve significant external effects. This self-regarding property implies that 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.[iii] 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.[iv] 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 – or first-hand knowledge of current regimes – controlling legal marijuana or cocaine or opium, for instance. Alcohol and tobacco regulatory control systems are widely understood, but these models are unappealing for many of the currently prohibited drugs.

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 status quo 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. In the public mind, drug legalization seems to suggest fairly loose controls, something akin to alcohol regulation.

Desirable non-prohibitory regimes for currently illegal drugs share at least two features with alcohol control: (1) kids will remain as proscribed consumers and (2) the full panoply of rules will be rather elaborate. For many of the currently banned drugs, however, legal controls will be much stricter than the standard alcohol model; surely convenience stores will not be allowed to sell unlimited quantities of heroin to all adult customers. Licenses can be required for buyers as well as for sellers. Advance order requirements, voluntary or mandated purchase limits, significant taxes, advertising controls – all of these measures, and more, can be imposed.

My goal in this paper is to follow up on previous contributions by detailing the role that buyer licensing and 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.[v] 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 for technically illegal but officially tolerated possession of personal-use quantities. Elements of the regulatory regime will determine precisely what behaviors are countenanced by the license, what actions result in the revocation (and reinstatement) of a license, and whether license holders can (or must) choose to officially limit their own licensed activities – no more than one ounce of marijuana per month, say.

Some people will be excluded from possessing a drug license, whether the licensing regime is explicit or implicit. In particular, a person who causes harm under the influence of the drug can lose the privilege of consuming the drug – and the exclusion can be enforced via testing. Such mandatory exclusions built into the regulatory structure can be supplemented with voluntary measures: self-exclusion regimes, which are popular in gambling regulation. An individual who chooses to self-exclude forgoes the possibility of acquiring the drug legally 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. No one wants to be an addict, even though people make the choices that drive them to addiction and maintain themselves in an addicted state. Licensing and exclusion programs enlist the self-interest people have in avoiding or ending addiction into an enforceable method of raising barriers to excessive drug use.

Prior to examining exclusion and licensing, 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 for their relationship with and implications for licensing. I then turn to the prospects for augmenting an alcohol-style regulatory regime with mandated and voluntary exclusion or purchase limits, and with buyer licensing. 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 for the currently illegal drugs.

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.

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[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] Mill (1978 [1859]).

[iv] 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.

[v] 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. Marijuana can be legally procured for federally approved research projects.

OK, This is Late

Finally, Draft Three will be posted. Not happy with either the delay or the draft. In some ways, I think it is a step backwards from Draft Two. The main intended change has been organizational, and as with many re-organizations, there's a little more chaos at the beginning of the process, even if the end result is an improvement. I am still hoping for that improvement, but it will have to wait for Drafts Four and Five.

Section 2 of this draft continues to offer an overview of Fosdick and Scott; Transform; Portugal; and California's marijuana initiative. I suspect that the latter two will be excised from future drafts, though mentioned in passing. This draft checks in at 8,253 words; the limit is 10,000.

Update on Draft 2.6

Well, I had hoped that today would bring an update on Draft 3.1, but that was not to be. Thank you very much for the extension, however.

Last week's talk was related to the Five Drafts project, and while I think it went OK, the larger project was not much advanced, I am afraid. My goal of posting Draft Three is now reconfigured for this week, while the draft itself is reconfigured by reversing the previous order of licensing-to-exclusion, and by separating mandatory and voluntary exclusion regulations. Then there is the seemingly never-ending project of reading three project-related books,

(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.

Here's where things now stand, in terms of pages read: Barker, 64 out of 212, unchanged for two weeks now (hmmm); Okrent, 46 out of 469 (up from 30), with the skip-ahead portion extended by six pages to pages 310 to 386; Warner, which I had hoped to complete already, is now at 166 out of 230, up from 122 last week. The main text, however, finishes at page 168, with the rest consisting of notes, which I have been almost keeping up with as I go along. So I am about 15 minutes of reading away, I think, from completing Warner!

The Warner book has lots of wonderful information about, among other luminaries, Frances Willard and Sylvester Graham. I now want to visit the Willard house/museum in Evanston.

I am disappointed in the conclusion of the Warner book (from pages 156-157), that, roughly speaking, is that drug problems are no better met with regulations than with prohibition. Perhaps it is true that addiction rates can end up being similar under these two scenarios, but I find the other dimensions of social harm, such as the violent black markets, to be markedly worse under prohibition than they are in a reasonable regulatory regime.

Two more books have left the library to join the Five Drafts queue. They are:

(4) Addiction: A Disorder of Choice, by Gene M. Heyman, 2009; and,

(5) Carrots and Sticks, by Ian Ayres, 2010. Soon I hope to chronicle my unprogress through these books, too.

Extension Request

Dear Five Drafts Reader,

Would it be possible to receive a one-week extension for Draft Three? I know that I should have made my request earlier, but I have been out of town and allowed things to pile up. As you know, I am hoping to incorporate some major structural changes into Draft Three, and while I could hand in something now, I don't think it would reflect my best work. Just one extra week, until Wednesday, May 4, 2011, would make a big difference in the quality of the draft. I am excited about the project, and would feel a lot better if Draft Three could better reflect my excitement and my commitment.

Thank you for your consideration of my request.

Sincerely,

JL