Drugs and Crime: Legal Aspects

In 1970, Congress supplanted previous statutory schemes for prohibiting drugs by enacting the Comprehensive Drug Abuse Prevention and Control Act, more popularly known as the Controlled Substances Act. This act, amended many times, continues to serve as a model for drug prohibitions by the majority of states—although the details vary from one jurisdiction to another. This act divides "drugs or other substances" onto five "schedules." The placement of a drug on a given schedule affects manufacturing quotas, import restrictions, dispensing limits, and criminal penalties for unlawful trafficking. Drugs without a currently acceptable medical use and with a high potential for abuse are assigned to Schedule I—which includes marijuana, LSD, and heroin. Of course, the determination of whether a substance has or lacks a medical use is enormously controversial. By 2001, initiatives to allow the medical use of marijuana had been approved in each of ten jurisdictions in which they had been placed on the ballot (California, Hawaii, Oregon, Washington, Arizona, Alaska, Maine, Nevada, Colorado, and the District of Columbia). These initiatives remain incompatible with federal law, which continues to proscribe the possession of marijuana for any purpose.

Under federal law, the severity of punishment is derived from the complex interaction of sentencing guidelines with mandatory minimum statutes. Prior to 1986, federal judges retained broad flexibility to tailor sentences for drug offenders to the particular circumstances of the offender. The Anti-Drug Abuse Act of 1986 dramatically transformed the sentencing of drug offenders by imposing mandatory minimum sentences, eliminating the possibility of probation or parole for most offenses, and increasing terms of incarceration. This act mandated a five to forty year sentence, with no possibility of parole, for first offenders convicted of possession with intent to distribute relatively small quantities of designated drugs (e.g., 10 grams of PCP or 1 gram of LSD, even if these drugs are diluted in mixtures). Sentences of ten years to life, with no possibility of parole, were mandated for first offenders convicted of possession with intent to distribute large quantities of drugs. Amendments to the act in 1988 imposed mandatory minimums for simple possession offenses, provided for the eviction of public housing residents if any member or guest of the household was involved in given drug offenses, and established the death penalty for persons engaged in "continuing criminal enterprises" who commit or solicit the commission of murder to further the criminal enterprise. The Violent Crime Control and Law Enforcement Act of 1994 significantly increased mandatory minimums for possession offenses still further, and authorized capital punishment for several new offenses. Mandatory minimums were doubled for defendants with a prior conviction for a drug felony, and were increased if drugs are distributed to a person under twentyone, to a pregnant woman, or near a school or video arcade facility.

Punishments for the possession of crack are especially harsh. The maximum term of imprisonment for possession of up to 5 grams of crack is one year, but a first offender convicted of possessing more than 5 grams receives a mandatory minimum of five years. Five hundred grams of powder cocaine are needed before defendants receive a mandatory five-year sentence, thus creating the notorious 100–1 sentencing disparity that has given rise to strong allegations of racist sentencing practices. Crack offenders are disproportionately black, whereas powder cocaine offenders are more likely to be white. In 1995, the Sentencing Commission recommended that Congress reevaluate the disparity in punishment between cocaine and crack offenses, but both Houses of Congress rejected the commission's recommendation. Shortly before leaving office, President Clinton recommended that this disparity be reduced.

Under federal law, a defendant may evade the mandatory minimum sentence in only one way. Upon a motion by the prosecution—which remains within his discretion—the sentence may be reduced for a defendant who fully cooperates with the government in the investigation or prosecution of other drug offenders. This exception is unlikely to be available to persons who play relatively minor roles in drug distribution schemes and thus have no useful information to provide. Far more prevalent are provisions that enhance sentences. Offenders with a prior criminal history, who use a gun, who create a substantial risk of bodily harm to others, or who victimize someone especially vulnerable, all are subject to increased sentences.

Marijuana has been the least harmful and most widely used illicit drug during the last century. As a result, criminal prohibitions are the most controversial, and differ significantly from state to state. In ten states, possession of small amounts of marijuana is punishable only by a fine. In many other states, incarceration is an option that is exercised infrequently. Federal law, however, punishes possession of small amounts of marijuana with a fine of $1,000 to $10,000 and up to one year in prison—the same sentence imposed for possession of small amounts of heroin or crack. Between 1991 and 1995, arrests for the use of marijuana doubled in the United States; by 1999, over 700,000 persons were arrested for marijuana offenses. New York City led the nation in these arrests, 88 percent of which were for simple possession.

New drugs are added or rescheduled from time to time. Highly publicized cases of drugs used to facilitate rape led to the Date-Rape Drug Prohibition Act of 1999, which added penalties for GHB (gamma hydroxybutyric acid).