Vice Squad
Sunday, August 05, 2012
Low-Risk Legalization Experiments

One of the main anti-legalization arguments mustered by drug prohibitionists is that any legalization experiment is so fraught with the prospect of producing huge numbers of new addicts that legalization cannot safely be tried. Here is my response to one such claim, that appearing in Drugs and Drug Policy: What Everyone Needs to Know, by Mark A.R. Kleiman, Jonathan P. Caulkins, and Angela Hawken. This response does not spell out my full "double default" model of drug re-legalization, but is consistent with it.

Low-Coercion, Low-Risk Drug Policy Experiments

In their recent book, Drugs and Drug Policy, Mark A. R. Kleiman, Jonathan P. Caulkins, and Angela Hawken (Oxford University Press, 2011) examine what they call (pages 18-21) a “no coercion” drug policy. Their description of such a policy is that drug buying and selling would generally be left unencumbered, though there would be dissuasion from immoderate use of drugs and help for people seeking to limit consumption that had spiraled out of control. “No coercion,” then, is a fairly full-bore legalization policy: presumably drug sales to children would remain proscribed. Kleiman, Caulkins, and Hawken (henceforth KCH) note that a no coercion policy might – or might not – be preferable to the current prohibition. They warn against undertaking a no coercion experiment, however, because either the experiment would have to be so limited in scope that it would not provide good evidence of what would be wrought by a full-scale legalization, or because a broad experiment might lead to a substantial increase in the number of heavy users, such that the compelled cessation of the experiment would result not in the status quo ante, but in a prohibition with many times the addicted users, and many times the social costs, as we have now with our current drug ban.

There’s an air of futility about the KCH analysis, a feeling that we are more-or-less stuck with drug prohibition, even though it might be a lot worse than feasible alternatives. But all is not futile. There are experiments that can offer evidence on whether some forms of legalization might dominate prohibition, and that do not run serious risks of inciting huge increases in addiction. These might not be “no” coercion experiments, but they are nearly-no-coercion, at least for users.

Even if drug prohibition did not entail so many baleful consequences – half a million prisoners, more than a million and a half arrests annually (mostly for small-scale drug possession), violent black markets – a workable low-coercion drug policy would be desirable, for many reasons. First, you don’t have to be some evil, alien being to be interested in taking drugs. Many reasonable adults want to use the currently illegal drugs, and are willing to pay high prices and run not-insignificant risks to do so. Second, most use of drugs, even under the adverse conditions fostered by prohibition and even for harder drugs, is not particularly detrimental, either personally or socially. Third, people have a strong incentive to avoid or end addictions, which are terribly costly. These three observations suggest that appropriate policy regimes can harness self-interest to do most of the work in controlling drugs, while saving coercive measures for socially harmful elements of drug consumption, and focusing treatment resources on those with the greatest medical needs.

What might a low-risk, low-coercion experiment look like? Sellers would still be licensed and regulated, as they currently are for alcohol or for prescription drugs. The low risk comes from the fact that drugs would not be available for purchase by every adult (unlike alcohol or tobacco). Rather, adults would apply for a license that would allow them to acquire their drug of choice through legal, regulated channels.
Consider opiates. Before looking at what steps one might have to take to receive an opiate license, note that licenses are not intended for nor would be available to addicts. Rather, addicts would have legal access to opiates through a separate maintenance/treatment program, as to some extent already exists in the US, where heroin addicts can receive methadone or buprenorphine as part of an opiate substitution policy. (Some other nations provide heroin addicts with heroin for maintenance purposes; these programs have demonstrated the ability to improve addicts’ lives and reduce the social costs of heroin addiction.) KCH (page 199) support the expansion of opiate substitution, and view it as a politically realistic policy.

Imagine someone who is interested in the recreational use of opiates (or synthetic opioids). How would a low-coercion, opiate licensing system work? There are many different opiates, including opium itself, codeine, morphine, heroin, methadone, and oxycodone. The multiplicity of partially substitutable opiates suggests that there should be a general opiate buyer’s license, with sub-categories for the different drugs and perhaps for different routes of administration. An adult might apply for the possibility to purchase drugs in some chosen sub-category, such as drinkable opium taken in the form of tea or laudanum. Heroin for inhalation or even for injection might be other possible selections. To acquire legal access to opiates, the applicant must: (1) pass a short exam; (2) meet with a drug counselor; (3) choose (within legislated bounds) purchase limits, a waiting period duration, and a price menu, for their selected drugs and intended modes of ingestion; (4) select constraints on future license renewals or purchase limits; and (5) pay a license fee.

The exam (1) tests the applicant’s knowledge of the physiological effects of the relevant opiates, the dangers from overdose and from specific types of administration, steps to take in the event of overdose or other medical emergencies, and rules about restricted activities (driving under the influence, public ingestion), storage and transfer of the drug. The test is designed to ensure that would-be legal drug buyers are informed consumers.

The meeting with the counselor (2) will take place in concert with the choices (3) about the conditions under which the opiates will be made available and the choices (4) that limit future availability. The law will prescribe maximum purchase amounts (for a day, week, month, and year), aimed at limiting diversion of legally-acquired drugs to unlicensed users via secondary markets. In the spirit of low-coercion, maximum amounts should be sufficiently high to allow fairly ardent (non-addicted) users to legally acquire the drugs they desire for their personal consumption. The law also will mandate a waiting period of a day (or two or three), to serve the interest of informed choice. The necessity to order drugs at least one day before purchase will not hamper considered drug decision-making, but can deter impulsive use. Finally, the law will set minimum prices for drugs, designed in such a way that less potent forms of drugs are taxed less heavily than more potent forms: a system that currently is common in alcohol taxation.

If there are legal mandates on purchase limits, waiting periods, and retail prices, what is left for consumers to choose? Essentially, consumers can choose constraints on their own purchases that are stricter than the legal controls. Drug users have reason to fear that their consumption could become habitual, so they might want to choose lower purchase limits and longer waiting periods than those stipulated by law. As for price menus, how can consumers choose their own prices? The idea here is that consumers could choose either the fixed default per-unit price for their drug, or a schedule that offered slightly lower prices for initial units (the first bottle of laudanum per month, say), with higher prices for later units. Again, the choice of such a menu might be made by consumers who seek heightened barriers against excessive drug use. There might even be an option of uniformly higher prices, where drug expenditures in excess of what would have been spent under the standard price schedule would be refunded to a user who relinquishes her license, and her right to re-apply, for a year or more.

The legal limits on drug quantities might differ based on experience with holding a drug license. Inexperienced opiate users could be restricted to relatively small quantities. Some of the more potent opiates such as heroin might only be available to people who previously have held a license for opium or other less potent opiates, perhaps for a year or more. New users licensed for injectable heroin might be restricted to receive and use their drugs only at safe injection sites, which some countries already make available to heroin addicts. The counselor will indicate the costs and benefits of choosing longer waiting periods, flat versus increasing price schedules, and non-injecting methods of use. Controls on future availability (4), such as a commitment to relinquish a license or to face reduced quantity limits, generally would be counseled for people concerned that their current levels of consumption are detracting from their well-being, if these people are not willing to agree to immediate reduced use. The counselor will indicate treatment options and make appropriate recommendations for those with significant opiate habits.

People who are not eligible for an opiate license will include the underage, those who previously self-excluded from the option to acquire a license, those who have lost their eligibility due to drug-related crime, and those whose addiction has resulted in a maintenance program or other treatment. KCH note the recent successful efforts in some states to keep drug-involved criminals away from drug use. These programs bolster the case for a low-coercion policy, by increasing the likelihood that socially dangerous drug use can be managed, without constraining the large bulk of non-problematic users.

The opiate license would last for two years, say, and would be renewable following a procedure similar to that used for an initial application. The license fee (5) would be aimed at offsetting the costs of administration, but could not be so high as to constitute a significant barrier for consumption; something on the order of $100 for a two-year opiate license might be appropriate, with an additional $75 for a sub-license for heroin or for other readily abusable opiates.

This outline of legal licensing for drug purchasers is highly speculative. Surely many different variants could be imagined and implemented. Some localities might want to look at more lenient conditions for acquiring licenses, while others might want stricter rules. (Prohibition itself can be viewed as a very strict licensing regime, one that does not permit any legal acquisition but still leads to some 200,000 Americans using heroin annually. Prohibition also is poorly targeted, in the sense that many of the most problematic users and potential users possess relatively unhindered access to drugs under prohibition.) The point of a policy experiment is to learn what works and what does not, so the more legal licensing systems that are tried, the more we can learn. We already know, alas, that coercive drug prohibition begets prisons, arrests, corruption, and violent black markets. Let’s find out what a low-risk, low-coercion drug policy regime can offer.

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