It's A Gray Area: Control is always better than prohibition

My wonderful mother studied one year at Occidental College before she went on to UC Berkeley, so maybe that was the reason she never liked the term "oxymoron." But that brings to my mind that the biggest oxymoron in our lives today is the term "controlled substances."

When we prohibit a substance, we give up all of our controls completely. All of the critically important things in the sale of potentially dangerous and addictive drugs, such as quantity, quality, place of sale, price, licensing and age restrictions, are abandoned to groups like Mexican drug cartels, juvenile street gangs and other thugs. And, of course, these criminals actually want our children to use these drugs so they can make more money on them.

We couldn't do it worse if we tried!

This loss of control hit me hard while I was on the bench. On four different occasions, I sentenced young men for being under the influence of methamphetamines. At time of sentencing, all said their drug of choice was marijuana, but one day, unbeknownst to them, the marijuana they purchased was laced with methamphetamines. So when they smoked it, they got themselves hooked on meth.

Because each defendant's sentence had already been agreed upon, written up and signed, they had no reason to lie to me. But I still remember thinking that this was an issue that should not be hard to control. Certainly smoking cigarettes is harmful, but at least when people go to their local mini-mart to buy a pack of Marlboros, they know their cigarettes will not be laced with methamphetamines.

So these are quality-control problems. Similarly, today we do not find students selling Jim Beam bourbon to each other on their high school or college campuses. But they sell illicit drugs like marijuana and ecstasy all the time. The reason is that those drugs are illegal and therefore uncontrolled.

It's the same reason we do not see Mexican drug cartels planting illegal vineyards in our national forests in competition with Robert Mondavi. They could, but there's no money in it.

Frequently when I speak to students on high school or university campuses about our nation's failed and hopeless policy of drug prohibition, I write the letters "PNWAWA R&C;" on the white board, saying "This is the answer." Then, after pausing for a few moments, I explain that it stands for Prohibition Never Works as Well as Regulation and Control. And it is true.

Furthermore, it holds true in other areas, like guns and Measure B, the Los Angeles County voter initiative approved in November.

Measure B requires all male actors in pornographic movies to wear condoms. Of course, the stated purpose of this initiative is to reduce the incidence of AIDS. Naturally, virtually everyone agrees that AIDS is truly dangerous, and reasonable precautions should be taken to keep it from spreading. But although well-meaning, Measure B will not help.

Think of it this way. If you try to require Captain Kidd, just before he makes a sexual conquest in a pirate porn film to stop and slip on a condom, it won't happen. But we'll never find out because the legal porn films will no longer be filmed in places like the San Fernando Valley. Instead the filming will be moved to places like Ventura County, Las Vegas or Florida, where the companies will not be subject to Measure B.

Actually, the same thing happened after the voters passed an initiative prohibiting the manufacture of foie gras in California. The companies simply moved to different states.

However, if the health aspect was instead regulated and controlled, the participants in the films could be ordered to undergo things like monthly or even biweekly blood tests to check for AIDS. Prohibitions and mandates don't work, but reasonable regulations do. That would actually reduce the incidence of AIDS.

Whether you accept pornographic movies or not, they have been around since the motion picture camera was invented and are here to stay. So instead of moralizing about things like pornography, drugs, guns or foie gras, or radically inserting unattainable requirements that will never be put into effect, wouldn't it be better to impose reasonable regulations and controls for those markets?

Functional libertarians and other people who understand the way the world really works, understand these concepts. With your help, so will a majority of our politicians and voters.

And who knows, maybe the phrase PNWAWA R&C; will someday become a part of our vocabulary.

JAMES P. GRAY is a retired Orange County Superior Court judge. He lives in Newport Beach. He can be contacted at

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