The Functional Libertarian
July 6, 2013
My wonderful mother studied one year at Occidental College before she went on to Cal, 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.”
Why is that so? Because 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.
So we couldn’t do it worse if we tried!
The fact of this loss of control hit me hard while I was on the bench when, on four different occasions, I sentenced young men for being under the influence of methamphetamines. At time of sentencing, all of them told me that 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.
Since 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 for the health of the user, 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 we inflict upon ourselves. Similarly, today we do not find students selling Jim Beam Bourbon to each other on their high school or college campuses. But they are selling illicit drugs like marijuana and ecstasy all the time. Why? Because those drugs are illegal, and therefore uncontrolled. For 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 that “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, not only is this true with regard to the selling of drugs, it holds true in other areas as well. One of those is guns. Another is represented by Measure “B” that was passed by the voters in Los Angeles County in the November 2012 election.
As you probably know, Measure B requires all male actors in pornographic movies in which there is any penetration of another person to wear condoms. Of course, the stated purpose of this initiative is to reduce the incidence of AIDS. Naturally, virtually everyone agrees that things like AIDS are 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. In fact, there are even some readings of Measure B that would require all of the participants in those porn films to wear white smocks and goggles! But we’ll never find out, because what will happen is that 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 they 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 instead, if the health matter were regulated and controlled, the participants in the films could be ordered to have things like monthly or even bi-weekly blood tests to check for AIDS. Prohibitions and mandates don’t work, but reasonable regulations do. And that will actually reduce the incidence of AIDS.
Whether you favor the existence of pornographic movies or not, the fact is that they are here to stay, and have been ever since the motion picture camera was invented. 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 normal vocabulary.
James P. Gray is a retired judge of the Orange County Superior Court, the author of “Wearing the Robe: the Art and Responsibilities of Judging in Today’s Courts” (Square One Press, 2009), and the 2012 Libertarian candidate for Vice President, along with Governor Gary Johnson for President. Judge Gray can be contacted at JimPGray@sbcglobal.net.