Position paper on contemporary policy issues

Alcohol, Tobacco, And Marijuana: The Argument for Unifying Vice Enforcement Legislation

Argument - Unified Paternalism

Government paternalism refers to the governmental exercise of legislative or regulatory authority over the individual for his benefit rather than for the benefit of others in society (Taylor, 1982). In a sense, much of governmental legislation includes paternalistic components, but in general principle, the essential difference between non- paternalistic and paternalistic regulation is that the latter relates to conduct that affects the individual exclusively. Paternalism is usually enforced through "vice laws" which regulate common vices like alcohol consumption, gambling, and drugs because they are considered harmful to the individual but not to anybody not directly involved.

The two philosophical objection to vice laws are: (1) the government's moral responsibility (and moral right) to regulate conduct derives from the need to protect the rest of society from harmful conduct of the individual, and therefore, all strictly paternalistic legislation is inherently unjustifiable; and (2) Paternalistic control is appropriate for certain forms of private conduct but inappropriate for others.

In the United States, paternalistic legislation currently regulates certain aspects of the manufacture, sale, and distribution of alcoholic beverages, and completely prohibits recreational drug use. To those opposed to paternalism in principle, private adult use of all three are not rightfully the subject of prohibition by law. However, even many of those who appreciate the need for some degree of paternalistic regulation object to the arbitrary nature of the legal status of certain equivalent conduct that permits some vices that do not affect others in society while imposing serious legal consequences on other conduct that is indistinguishable in degree of harm.

Currently, U.S. law reflects a logically untenable distinction in paternalism with respect to recreational drug use (which it prohibits absolutely); alcohol consumption which it permits within limits that protect others from irresponsible use); and tobacco which it regulates but fails to restrict, even where it does harm others.) Certainly, some degree of legislation is appropriate for all three, but without arbitrary variation and degree. Likewise, regulation should more closely conform to the specific potential harms that each represents to society.

Technically, private alcohol consumption is not regulated by the federal government because the minimum statutory age of lawful use is regulated by the individual states. In practice, however, the national drinking age is 21, but because all 50 states have decided, individually, to adopt the same minimum age (21) necessary to qualify for federal highway funds, for which that is a necessary prerequisite (Dershowitz, 2002). Otherwise, strictly private alcohol consumption is entirely unregulated: it is perfectly legal to drink alcohol excessively, even to the extent that it destroys one's physical health, ruins one's personal relationships, and makes one unemployable. Public alcohol consumption is permitted by law, but regulated in elements of time, place, and manner, to ensure that irresponsible alcohol consumption does not affect others detrimentally, or endanger their safety. Therefore, consumption in restaurants and bars is permitted but subject to more restriction outdoors; it is most strictly regulated in connection with the operation of motor vehicles, because of the danger that drinking and driving in combination poses to others.

Alcohol regulation is the model for the logical application of laws that are appropriate, precisely because the different levels of permissibility correspond directly to conduct that affects only the user in the first instance; conduct that has the potential to affect others, but only in relatively minor ways; and conduct that has the potential to cause significant harm to others, respectively. Private use of alcohol is not subject to paternalistic legislation at all, and, as a matter of fact, alcoholism is a definite problem for significant percentage of users (Miller, 1983).

Regulation of private alcohol use only applies very indirectly, and only to the user's conduct while under the influence of alcohol. Jurisdictions that prohibit consuming alcohol outdoors (or in other public setting) do so only by virtue of some of the conduct that is associated with alcohol use. Other jurisdictions permit outdoor use but impose penal consequences that are specific to socially inappropriate alcohol-induced conduct. Regulation in connection with operating a motor vehicle is not strictly regulated with paternalistic intent, but only because experience has established, very conclusively, that it is impossible to drive safely under the influence of alcohol. It is concern for the dangers to others associated with alcohol use by drivers that underlies drunk driving laws, not particular concern with the welfare of the alcohol user himself.

Like alcohol, tobacco use is prohibited by minors but permitted by adults. Also like alcohol, tobacco use is detrimental to the health of the user, except even more so.

Whereas alcohol consumption generally benign and only acutely harmful when it is overused, tobacco use (especially in the form of cigarettes) is extremely dangerous for practically all users. This is simply a function of the fact that "typical" use of tobacco entails physical addiction to nicotine, its primary active ingredient. For this reason, it is very rare for smokers to use tobacco too infrequently to become chronic daily users

In contrast, most alcohol users do not partake so often that it compromises their physical health.

The dramatic long-term medical consequences of long-term tobacco use are universal as well as predictable; in fact, the medical community is united in the position that tobacco use causes more preventable illness and death than all forms of criminal violence, alcohol-related automobile accidents, non-alcohol-related automobile accidents, and all illicit drug use combined (Brecher, 1972). Furthermore, unlike alcohol, which is not directly (i.e. except in combination with driving) a danger to the health and welfare of others, second-hand tobacco smoke has been identified as a specific irritant and a direct agent of medical harm to nonsmokers exposed to its smoke in significant quantities. For this reason, recent legislation in some states has begun to restrict certain indoor public smoking, such as in the workplace, and federal law changed to prohibit it from government facilities and in air travel. However, many instances of smoking in public is still permitted that definitely exposes nonsmokers to the harms associated with it. Only within the last year has any law been enacted that is designed to protect children from their parents' smoking, but even that law only pertains to the enclosed space of the interior of a car. In general, there are no restrictions against smoking outdoors or in the home, despite the overwhelming evidence of its effects on others who breathe second- hand cigarette smoke.

If any type of private conduct warrants greater paternalistic governmental control, it is difficult to argue that tobacco use should not be higher on the list of appropriate activities meriting regulation than marijuana, for just one example. Smoking marijuana may very well be associated with certain medical consequences for the user. It is also associated with perceptual and behavioral changes that justify prohibition in conjunction with operating motor vehicles in the same manner as alcohol. Similarly, it may be appropriate to regulate the exposure of others (including children in the home).