Musing on a Framework for Recreational Intoxicant Regulation

Personal #1 blog addiction Andrew Sullivan has a characteristic post about marijuana decriminalization and/or legalization along with other illegal drugs. So, since I took yesterday off from just about anything resembling an obligation to DCM, UNC, First Pres, or anything else, I seem to actually have the inclination to commit to blog the idea I've had about this for a while.

First off, let me say that, largely speaking, I'm firmly in the legalization camp as far as it goes for marijuana, and I strongly sympathize with the anti-Prohibitionist logic for legalization of a wide range of currently illegal drugs. However, this comes with a big caveat -- legalization is more than simply removing the laws from the books that prohibit it, or as Sullivan advocates...

Just legalize it for adults, place strong constraints on minors finding a way to purchase it, and stop using pot arrests as some benchmark for police success, especially when there is an obvious racial dispairty in enforcement of the law. It's not that hard.

Well, actually, it is kind of that hard. Here's the thing -- all excellent arguments against the horrendously expensive, corrupt, and abysmally ineffective "War on Drugs," drugs do ruin people's lives. Substance abuse is a killer of dreams, relationships, careers, families, and of course, people. Simply because the drug war isn't working and is causing horrific problems, that doesn't mean there aren't serious issues to be considered when undoing it.

The best illustration of this comes from the classic example cited by legalization proponents -- the 18th and 21st Amendments to the US Constitution. Prohibition was of course a terrible failure in its aims, but the success of alcohol re-legalization went far beyond simply repealing the 18th, as Daniel Okrent's book makes pretty clear. The post-Prohibition alcohol regulatory state includes, unlike the pre-Prohibition alcohol regulatory state, regulations on who can sell alcohol, who can buy it, where it can be sold, when it can be sold, and how much someone can drink before driving a motor vehicle, among many other regulations.

Compare this to the failed Proposition 18 referendum in California that would have legalized marijuana. One of the major components of the anti-Prop 18 movement was to point out that the change would have made it very difficult to, say, forbid a school bus driver for showing up to work with pot in his or her system. Simply put, just as we do with alcohol, we need some parameters on just how intoxicated someone can be before a variety of legal restrictions kick in.

To my mind, alcohol has to be the lodestar on what I'd classify as the group of "recreational intoxicants," but a quick examination shows that alcohol regulations are already pretty loosey-goosey, and prone to a lot of subjective determinations. For example, there's no specific limit set on how much alcohol someone can have before operating a 500-lb forklift at work. Everyone pretty much agrees that an employee who shows up for work with booze on his or her breath to operate heavy machinery should at the very least get sent home and should probably just be fired on the spot, but clearly someone who takes a small amount of low-strength cough syrup containing a small but measurable amount of ethanol before coming to work at a desk job is probably fine. On the other side of the scale, there are laws against "public drunkenness," but while the legal driving limit is .08, the standard for an arrest for public drunkenness is self-evidently much higher, although undefined. In short, we've already worked out informal standards for alcohol, but such standards are far from apparent when it comes to currently illegal recreational intoxicants, such as marijuana or cocaine.

So here's where I come down on this: for any recreational intoxicant we're going to consider we need a reliable means of measuring level of intoxication, on par with Blood Alcohol Content (BAC). From there, we should be able to establish a four-tiered level of what activities one can and can't do depending on how intoxicated one has become. In the process of doing this, I not only use alcohol as an example, but I'd actually advocate these as changes to the standing alcohol intoxication laws. For legalization of marijuana, as I mention above, there would need to be some scientifically established measurements on what blood THC levels implied what level of intoxication, which could be subsequently modified by the political process. (There appears to be crude measurements for ng/mL for THC as it is, but there's no widely available test for this.) Anyway, here's how I'd break it down for alcohol:

Tier 0: Sober

Define this as < .04 BAC. At this level, with exceptions for high risk jobs like heavy machinery operators, a person is presumed to be at their unimpaired capacity. Perhaps this is to fine a point to draw on it, but I envision a level where the presumption is, regardless of the intoxicant, below the defined level, the burden of proof lies on a regulator, an employer, or a prosecutor to demonstrate that an intoxicant interferes with normal capacities.

Tier 1: Affected? Impacted?

There's not a ready-made word for this level -- both "intoxicated" and "impaired" already have legal connotations, or I'd be tempted to borrow one of those. Suffice to say that while I'm pretty sure I've never or almost never driven while intoxicated over the .08 BAC limit, there's plenty of times where, in retrospect, I was driving after drinking and was certainly not 100% sober. "Tipsy" is the polite word used for this state. For alcohol, let's define this as between .04 and .08 BAC.

One complaint that many law enforcement officers have is that the .08 limit is really a bit ridiculously high. In order to crack .08, you really have to be seriously impaired. I'd say that I think our current legal penalties for driving over .08 are probably appropriate, but that we need an equivalent of a "9 mph over the limit" speeding ticket for drinking -- one that counts as a minor penalty on insurance, and maybe can get dismissed based on a clean record, but that is still a pain to deal with and grounds for citation. Furthermore, this level should be the point at which any employer should have the benefit of the doubt for reprimanding or firing an employee for showing up to work.

Tier 2: Impaired

Currently, most US states prohibit driving at above the .08 limit, but laws beyond that are fuzzy. Here's a list of things I think should be outright banned if someone is intoxicated on alcohol or some other substance to the point of impairment:

• Carrying a firearm on ones person
• Serving in a custodial role to a minor
• Purchasing alcohol or other recreational intoxicant
• Any other activity in need of regulation for which loss of judgment could lead to the endangerment of others

The less formal way of putting this would be, what should a drunk person not be allowed to do?

Tier 3: Loss of Personal Responsibility

And here we get to a key component of regulating drugs that I think worries a lot of people and that current alcohol laws fail to enforce. What happens when someone gets intoxicated to the point that they become a danger to others, simply based on their inability to act in a basic, responsible manner? My take on this is simply, if you allow yourself to become intoxicated to this level, you have surrendered one of your most basic freedoms, and that is your responsibility for your own actions in public.

I'm not sure where I'd put this threshold for alcohol -- probably in the .15-.20 range. Suffice to say, though, this is the level at which one should not be allowed to be unsupervised in a public place. If one is in a public place, then one should either be in the custody and care of someone who is unimpaired at the very least at Tier 1 in this scale, and probably Tier 0, otherwise I see no problem with law enforcement having the right to take a person at this level into custody for the simple act of public safety.

So what was the point of all of that?

One of the problems I have with current recreational intoxicant laws, including both alcohol and illegal drug laws, is that they violate the spirit of the liberal state -- that is, they do not regulate harms between parties, as John Stuart Mill envisioned, but regulate personal actions which often have no immediate impact on others. Notice that in all of the above expansions and tightening of regulations on substance use, there's nothing anywhere that prohibits people from sitting in their own houses (without children present) and getting drunk or stoned or high to the point of drooling or vomiting or passing out, provided they don't leave the house. And that, in my opinion, is a major improvement over current laws. Yes, it's a tragedy when someone abuses as substance to that level, but that doesn't make it a reason he or she should go to prison for it. However, unlike the blanket removals of regulations that some legalization proponents advocate, it still protects society at large from the dangers posed by drug users, by specifically prohibiting actions rather than more nebulous things like "possession with intent to distribute."

To illustrate, let's move out of the well-worn paths of alcohol and marijuana to the more touchy subject of cocaine. In low concentrations, coca leaf extract is a mild stimulant which is almost certainly safer for general consumption than its highly toxic cousin, caffeine. (In fact, one of the reasons cocaine is banned and highly concentrated caffeine is not is that snorting a comparable amount of caffeine would be almost instantly fatal, so isn't prone to recreational abuse.) So, at some very low levels of blood content, coca extract should frankly be perfectly legal for use in soft drinks and energy drinks. I don't know what the comparable levels are for cocaine -- I've never used it myself, and have only been around those using it once or twice -- but given a means of measuring blood levels, it shouldn't be hard to come up with tiers that match the above. Perhaps one line of cocaine is enough to shoot one directly into Tier 3, I have no idea. But with this framework, you're banning the actual use of a substance in a means that could cause harm to others, rather than the substance itself. This removes all sorts of nonsense from the criminal code, and could straighten out law enforcement and prosecution significantly.

This isn't everything that has to go into a revamped regulatory structure for recreational intoxicants. Like alcohol, strict stamping, taxing, regulation of intoxicant levels, warning labels, distribution licensing, and all of that are part of it. But those are less sticky to solve -- replicating the alcohol regulation and enforcement structure there largely answers the question. My purpose here is to try to think of a legal framework that is both based on clear, empirical, and enforceable measures that law enforcement, social workers, and legalization advocates can live with (while probably not entirely happy with). Anyway, I'd love to hear comments from those who are more involved in the issues.