Drug possession is the crime of willfully possessing illegal substances, such as marijuana, cocaine, methamphetamine, or heroin. Drug possession accounts for over 80 percent of all drug-related arrests in the United States, according to the Department of Justice. Additionally, almost half of those arrests are for marijuana possession. In part because of law enforcement campaigns targeting these crimes, arrests for drug possession have almost doubled within the last two decades.
What is Possession?
Possession of a drug or another illegal controlled substance occurs only when a defendant is knowingly in possession of the substance. This requires two things. First, the defendant must have known that he or she was carrying the drug or substance at issue. For instance, if a man borrows his friend’s car and, when stopped by police, it is discovered that there are drugs concealed in the car, the man may not be charged with drug possession if he can show he had no idea the car contained drugs. Second, the defendant must have known, or reasonably should have known, that the substance he or she was carrying is actually illegal. Thus, if a husband hands his wife some medication that she believes he has a prescription for, when in fact he obtained the drug illegally, she would probably not be charged with possession because she believed the drug was legal. In reality, a defense that someone did not know the substance was illegal is often difficult to prove, for individuals are assumed to have a reasonable knowledge and understanding about drugs and substances in their possession.
Elements of Possession
1The individual must have known that they were in possession of the drug
2The individual must have known (or reasonably should have known) that the drug was illegal
Possession applies equally to both actual and constructive possession of an illegal substance. Actual possession applies to those individuals who are physically in control of the drugs at the time of discovery, such as someone who has drugs in his or her pocket. Constructive possession means that the individual has control over and access to the drugs, even if he or she may not be holding onto them at the time of arrest. For instance, a man who keeps drugs in a cabinet in his home is still liable for drug possession.
The crime of drug possession also extends to items beyond the drugs themselves, including precursor chemicals used to make drugs and drug paraphernalia. Drug paraphernalia typically includes items like syringes, pipes, or bongs. Since these items may also be used for legal purposes, such as dispensing of legal medication or smoking tobacco, prosecution for possession of drug paraphernalia typically requires additional evidence to connect the item to drug use, such as residue left on a drug pipe.
Punishment for Drug Possession
Drug possession is criminalized under both state and federal laws, and it is typically broken down into two categories: simple possession and possession with intent to distribute. While simple possession is often a misdemeanor, possession with intent to distribute typically carries much harsher sentences. Laws often distinguish between the two based on the amount of drugs in a person’s possession at the time of arrest, for large quantities of a drug suggest the person intends to share it or sell it to others. However, other evidence of distribution may also be obtained, such as scales, plastic baggies, business cards, or statements from witnesses who received drugs from the defendant. Defendants charged with simple possession are typically subject only to fines and possible probation or rehabilitation programs. Those charged with possession with intent to distribute may face fines up to $100,000 or more and possible incarceration of up to 10 years, depending on the type of drug and the amount in possession.
Alternative Sentencing and Expungement
Some states offer alternative sentencing, such as rehabilitation programs, in an effort to decrease prison populations and grant offenders a second chance. In some cases, if the offender successfully completes all the conditions imposed by the court, they may be eligible to have their record expunged.
Sentencing for drug possession crimes has been under scrutiny in recent years for the high number of offenders sent to prison and rising prison populations. For this reason, some states have created alternative drug courts to deal with defendants charged with felony drug crimes. Drug courts focus on rehabilitation of the defendant, as opposed to incarceration, and typically require the defendant to participate in year-long drug rehabilitation programs, as well as random drug testing. Recent statistics on the efficacy of drug courts are very promising. According to the National Association of Drug Court Professionals, almost three-quarters of drug court graduates remain arrest-free for at least two years after completing drug court, with most remaining arrest-free for far longer. Comparatively, the Department of Justice reports that almost two-thirds of those incarcerated for drug crimes are rearrested within three years of their release from jail.