Drug Crimes

Overview

Federal and state laws regulate the possession and distribution of drugs. For the most part, the drug laws of each jurisdiction are relatively uniform since most states have modeled their laws based on the federal Controlled Substances Act, 21 U.S.C. §801 et. seq., which was passed in 1970 and amended thereafter to conform with various international conventions.

Controlled Substances Act

The CSA divides drugs into five schedules, numbered I through V. Schedule I includes drugs that have no medical use, have a high potential for abuse, and for which there is no accepted safe use, except under medical supervision. Schedule I drugs include marijuana (even though some states, such as California, accept the medical use of marijuana), LSD, MDMA (Ecstasy), heroin, DMT and the like.

Schedule II drugs have a high potential for abuse, a currently-accepted medical use (as opposed to Schedule I) and a risk of "severe" dependence if abused. Schedule II drugs require a prescription, with prescriptions limited to 30 days, and include cocaine, methamphetamine, morphine, PCP, and amphetamines.

Schedule III drugs have a lower potential for abuse, currently-accepted medical uses and a risk of high psychological dependence or moderate physical dependence if abused. Anabolic steroids and intermediate-acting steroids are on this schedule.

Schedule IV includes longer-acting barbituates, and Schedule V include some preparations including codeine and opium.

Drug Sentencing

Since 1986, federal judges have sentenced defendants convicted of drug offenses to substantially lengthier prison terms. Under federal mandatory minimum sentencing laws, the type and weight of the drug, as well as the defendant's prior convictions dictate the length of the sentence. Judges no longer may consider other factors such as likelihood of recidivism. Some states have followed suit and passed laws that treat drug offenses more strictly if committed by violent felons. In California, for instance, the Three Strikes law counts a felony drug offense (or any nonviolent felony) as a third strike if the first two strikes were violent or "serious."

Critics of the federal mandatory minimum sentencing regime contend that drug sentencing laws disproportionately affect minorities. They cite as one key example the disparity in sentencing between crack and powder cocaine. Under federal law, possession of five grams of crack would result in the same prison term as 500 grams of powder. In 2002, the US Sentencing Commission found that 85% of the persons convicted of an offense involving crack cocaine were black and that judges sentenced persons convicted of crack possession to prison sentences five times longer than that for possession of powder cocaine. The Supreme Court is expected to decide whether that part of the law in constitutional by the summer of 2008.

Twelve states—Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington—have enacted medical marijuana laws, legalizing the possession and distribution of marijuana for medical reasons. In 2005, however, the Supreme Court ruled in Gonzales v. Raich, 545 U.S. 1, that the federal government has the right to prosecute federal marijuana laws, regardless of state protections for medical use. Since marijuana sales cross state borders, the Court said, the Commerce Clause gives Congress the right to regulate drug sales and use, regardless of what individual states may do.

The main categories of drug offenses, in increasing levels of punishment, are simple possession, possession with intent to distribute, manufacturing, selling or distributing, conspiracy to manufacture or sell, and "continuing criminal enterprise," a charge used against gangs, which applies when five or more people cooperated to sell drugs as an ongoing business that created "substantial" income. Federal sentences range from five years for a first offense of trafficking in certain drugs to life imprisonment for those with two or more priors who trafficked in large amounts of Schedule I and II drugs.