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Toward Drug Control: Exclusion and Buyer Licensing

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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.

Abstract

The uncertainties associated with the precise nature of legalization regimes and with their expected outcomes sometimes are used to justify the maintenance of drug prohibition. This paper details the role that buyer licensing and exclusion might play in implementing a low-risk, post-prohibition drug regulatory regime. Buyer licensing and exclusion provide assistance to those who exhibit or are worried about self-control problems with drugs, while not being significantly constraining upon those who are informed and satisfied drug consumers. Relative to prohibition, licensing and self-exclusion can be part of a drug regulatory structure that is much more finely tuned to the risks of harms stemming from drug use.

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Notes

  1. The arrest data are from the FBI, Uniform Crime Reports, Crime in the United States 2010; see http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/persons-arrested/arrestmain. On the centrality of enforcement to overall anti-drug strategies, 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; see Table 7.9 of Federal Justice Statistics, 2008- Statistical Tables, at http://bjs.ojp.usdoj.gov/content/pub/html/fjsst/2008/tables/fjs08st709.pdf. Anti-drug spending by state and local governments in the US probably eclipses federal expenditures; see Miron and Waldock (2010).

  2. A high profile group, the Global Commission on Drug Policy, issued a report in June, 2011, calling for an end to the criminalization of drug use and proposing experiments with legal drug control regimes. The honorary chair of the group is former US Secretary of State George P. Schultz, and the commission includes other high-ranking (current and past) political figures. See Global Commission on Drug Policy (2011).

  3. See the report on the outcome of a Gallup poll, “Record-High 50 % of Americans Favor Legalizing Marijuana Use,” by Frank Newport, October 17, 2011, available at http://www.gallup.com/poll/150149/record-high-americans-favor-legalizing-marijuana.aspx.

  4. Mill (1978 [1859]); the term “self-regarding” is borrowed from this source, though the term originates in Bentham (1948 [1823], p. 41). Chapter 1 of Leitzel (2008) examines the application of Mill’s harm principle to drug regulation.

  5. A list of typical effects of a drug prohibition appears in Leitzel (2008, p. 105).

  6. 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.

  7. Fish (1998), for instance, presents a wide variety of legalization approaches.

  8. I present and examine the “too risky to try” argument on pp. 101–106 of Leitzel (2008). A recent example of this argument appears in Kleiman et al. (2011, p. 21).

  9. Mill (1978 [1859], p. 9).

  10. Mill (1978 [1859, p. 95).

  11. Leitzel (2008, Chap. 3). This type of harm reduction approach to uncertainty has a longer provenance, of course. See, e.g., Russell (2000 [1950], p. 40): “When you act upon a hypothesis which you know to be uncertain, your action should be such as will not have very harmful results if your hypothesis is false [italics Russell’s].” Policies that assist people who might be less than rational in their drug related choices, while not imposing in a significant way upon other users, also meet related criteria such as libertarian paternalism, asymmetric paternalism, or similar concepts. See Leitzel (2008), O’Donoghue and Rabin (2003), Thaler and Sunstein (2003, 2008), Sunstein and Thaler (2003), Camerer et al. (2003), and Loewenstein et al. (2003).

  12. 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 unaffected. Marijuana can legally be procured for federally approved research projects.

  13. The Fosdick and Scott contribution was first brought to my attention by Levine and Reinarman (1993). This source also references the turn-of-the-century work by the Committee of Fifty—work that also was drawn upon by Fosdick and Scott; see Billings et al. (1905).

  14. Fosdick and Scott (1933, p. 19).

  15. 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.

  16. For many years, British gambling regulations called for casinos to be restricted to club members, with a waiting period of 48 h (reduced to 24 h in 1997) to become a member. The Netherlands is gradually implementing an alteration to the rules governing their cannabis-selling coffee shops, making the shops club-member-only establishments, where non-residents are not eligible for membership; see “Tourists to be banned from Dutch cannabis cafes,” by Afp Relaxnews, New York Daily News.com, November 14, 20111, available at http://www.nydailynews.com/life-style/health/tourists-banned-dutch-cannabis-cafes-article-1.977216.

  17. Leitzel (2008, pp. 91–92) examines the implications of the robustness principle for public activity.

  18. Leitzel (2008, pp. 166–168) indicates the complexity of tobacco regulations.

  19. There is no definitive ranking of what qualifies a drug as relatively hard or soft, and surely the addictiveness or harm associated with a drug can vary with method of ingestion, setting of use, and consumer characteristics. Nevertheless, there are attempts to compare harms across drugs; see “Scoring Drugs,” the Economist Online, November 2, 2010, at http://www.economist.com/blogs/dailychart/2010/11/drugs_cause_most_harm, and http://vicesquad.blogspot.com/2007_03_01_archive.html#4235367022554579658.

  20. Kleiman (2007). 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.

  21. See http://apps.sd.gov/atg/dui247/index.htm, and section “Gambling Self-Exclusion”, below.

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

  23. The remainder of this section draws upon Leitzel (2011). The notion of commitment is central to the current paper, which involves, in part, a sort of self-referential experiment; see fivedrafts.blogspot.com. An April, 2011 presentation related to this paper is available at http://www.youtube.com/watch?v=s_Px4nYbJoQ.

  24. More generally, see Ayres (2010).

  25. See the relevant posts at the blog Self-exclusion, at http://selfexclusion.blogspot.com/search/label/Effectiveness.

  26. http://selfexclusion.blogspot.com/2011/04/enforcing-self-exclusion-through.html.

  27. The Canadian province of British Columbia is setting up electronic identification checks in casinos in response to an investigative media report on underage gambling. There are plans to link the identification checks with the self-exclusion database; see http://selfexclusion.blogspot.com/2011/05/british-columbia-casino-id-checks.html.

  28. See “Casino self-exclusion program to be beefed up after studies highlight loopholes,” by Tracy Sherlock, Vancouver Sun, August 22, 2011, available at http://www.vancouversun.com/health/Casino+self+exclusion+program+beefed+after+studies+highlight+loopholes/5291028/story.html.

  29. http://selfexclusion.blogspot.com/2011/04/mandatory-gambling-limits-in-australia.html.

  30. The state of Missouri’s casino self-exclusion program developed when a problem gambler learned of the existence of mandatory exclusions, and asked if he could become excluded, too; see http://selfexclusion.blogspot.com/2011/02/missouris-introduction-of-self.html.

  31. Thompson (2010) and http://selfexclusion.blogspot.com/2010/03/singapore-casino-exclusions-update.html. Singapore also automatically excludes from its casinos residents who are receiving public assistance or who are in bankruptcy.

  32. Responsible Gambling Council (2008).

  33. Thaler and Sunstein (2008, pp. 83–87).

  34. Kleiman (2007) and Leitzel (2008, pp. 163–165).

  35. Kleiman (1992, pp. 98–101) distinguishes between positive and negative licenses. A positive license is one in which the default condition is unlicensed, where a would-be consumer must take some positive steps to opt in, to become licensed. A negative license shifts the default, so that adults automatically have the right to purchase alcohol, say, but that right can be revoked in the face of alcohol-related misbehavior or for other reasons (perhaps even voluntarily, as with self-exclusion).

  36. Sweat patch requirements are controversial; see “Testing Testing,” by Lara A. Bazelon, Legal Affairs, July/August 2003, at http://www.legalaffairs.org/issues/July-August-2003/review_bazelon_julaug03.msp.

  37. See http://www.hopeprobation.org/, and the discussion of advances in probation below.

  38. Zinberg (1984).

  39. See section “Mandatory Exclusion” below; Kleiman et al. (2011, p. 199) support expanded access to opiate substitution, even in the absence of drug re-legalization.

  40. Fennell (2005, pp. 1484–1485) suggests the possibility that revenues from self-imposed sin taxes could be returned later to consumers willing to relinquish a buyer’s license.

  41. See the discussion and sources in Hemenway (2009, p. 12).

  42. The “Save More Tomorrow” plan, which involves a formal but not binding commitment to, well, save more at a future date, has shown success in increasing savings; see Thaler and Sunstein (2008, pp. 112–115).

  43. Rolles (2009) suggests the use of microtaggants to aid the enforcement of personal drug licenses. See also “Tuning into Taggants,” by Paul Thomas, Pharmamanufacturing.com, 2006, available at http://www.pharmamanufacturing.com/articles/2006/004.html?page=1.

  44. “Heavy users are thought to comprise approximately 20 % of the drug-using population but actually account for at least 70 % of total drug consumption.” Office of National Drug Control Policy (2008, p. 5).

  45. Colorado and some other states in the US that have legalized marijuana for medical purposes employ confidential registries of patients’ names; see www.cdphe.state.co.us/hs/medicalmarijuana/confidential.html. Private pressure could be so onerous on licensed drug buyers that public dissemination of license lists would violate the robustness principle.

  46. Hawken (2010b)

  47. On 24/7 Sobriety, see Caulkins and Dupont (2010), Long (2009), and “RAND Corp To Study South Dakota 24/7 Sobriety Program,” Dakota Voice, February 10, 2011, at http://www.dakotavoice.com/2011/02/rand-corp-to-study-south-dakota-247-sobriety-program/.

  48. See Table G.4 and Table 5.2B in Substance Abuse and Mental Health Services Administration (2009); tables available at http://oas.samhsa.gov/NSDUH/2K8NSDUH/tabs/Sect1peTabs1to46.htm#Tab1.1A and http://oas.samhsa.gov/NSDUH/2K8NSDUH/tabs/Sect5peTabs1to56.htm#Tab5.1A, respectively.

  49. The current legal medical supply channels for heroin and cocaine do not seem to be important elements in provisioning the illicit market. Incidentally, the distinction between medical and recreational use of drugs is not sufficiently bright, to my mind, to serve as the basis for the legality or illegality of the use of a drug; see Husak (2002, pp. 37–43). One of the benefits of drug re-legalization is that the distinction between medical and recreational use takes on much less importance.

  50. Rolles (2009) details how existing legal supply channels can be expanded to accommodate legal recreational users.

  51. See Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 US 557 (1980), and Leitzel (2008, pp. 172–174). Robustness might require controls on drug advertising; Mill’s interpretation of his harm principle also did not preclude restrictions on advertising.

  52. Fosdick and Scott (1933, p. 150); the elided words before “states” are “forty-eight.”

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Acknowledgments

I would like to thank Stuart Green, Kyron Huigens, and other symposium participants for helpful comments on an earlier draft.

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Correspondence to Jim Leitzel.

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This paper has been prepared for a symposium on The Law and Theory of Vice Crimes, Rutgers School of Law, Newark, September, 2011.

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Leitzel, J. Toward Drug Control: Exclusion and Buyer Licensing. Criminal Law, Philosophy 7, 99–119 (2013). https://doi.org/10.1007/s11572-012-9155-z

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