Drugs and Crime: Legal Aspects

A systematic description of drug regulations must begin by identifying the parameters of the inquiry. What exactly is a drug? Unfortunately, no standard definition exists; different answers are given for different purposes. The most widely cited legal definition, contained in the Food, Drug, and Cosmetic Act (21 U.S.C. secs. 1–5), basically contains three disjunctive clauses. It identifies drugs as "substances recognized in the official United States Pharmacopeia," or "substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals," or "substances (other than food) intended to affect the structure or any function of the body of man or other animals." This definition cannot be thought to be adequate. The second and third clauses make a curious reference to intentions, as though the status of a substance as a drug could depend on the mental states of those who produce or use it. According to these definitions, a placebo (or indeed any substance whatever) would qualify as a drug as long as persons had the appropriate intentions. The second clause is far too broad, including diagnostic tools like stethoscopes. The first clause identifies drugs by deferring to the expertise of persons with the authority to include or delete a substance from the Pharmacopeia. No guidance is offered about how these experts should make their decisions. In fact, political rather than pharmacological considerations have influenced their determinations. Tobacco was removed from the Pharmacopeia in order to persuade legislators from tobacco-producing states to support passage of the Food and Drug Act.

The most frequently cited medical definition of a drug is "any substance other than food which by its chemical nature affects the structure or function of the living organism." This definition is a modification and slight improvement over that in the third clause of the Food and Drug Act. Still, this medical definition is problematic—for at least three reasons. First, it is doubtful that a substance becomes a drug whenever it produces an effect on the structure or function of the living organism by its chemical nature. A bullet lodged in the brain may cause structural and functional changes through processes that seemingly are chemical. Should this bullet be classified as a drug? Second, the definition presupposes some baseline from which to judge whether structure or function have been affected. Is this baseline statistical, biological, normative, or some combination of the three? For example, is a substance that blocks ultraviolet radiation a drug because it decreases the likelihood that the average user will contract skin cancer? Finally, the definition precludes the possibility that a food can be a drug. What exactly is a food? Some substances, such as herbs, seem to qualify as both foods and drugs. In light of these (and other) difficulties, this definition is inadequate. Unless some better candidate becomes available, it is probably fair to conclude that no satisfactory definition of a drug exists.

Neither of these definitions make any reference to the law; a substance need not be regulated or proscribed in order to qualify as a drug. For this reason, this definition deviates from how ordinary speakers of English tend to identify drugs. Empirical studies indicate that respondents are far more likely to recognize a substance as a drug when its use is prohibited. Few Americans regard alcohol, tobacco or caffeine as drugs, while nearly everyone recognizes heroin, cocaine, and marijuana as drugs. But these distinctions have no definitional basis. Nothing in the definition of a drug provides any basis for exempting (the active ingredients in) alcohol, tobacco, and caffeine from the scope of a comprehensive set of drug regulations. The failure to distinguish licit from illicit drugs is unquestionably an advantage rather than a shortcoming of the foregoing definitions. Surely the question of whether a given substance is or is not a drug should depend on its pharmacological properties and its effects on persons who use it, rather than on whether or how it is regulated by law. The status of a substance as a drug should not fluctuate as legal regulations are adopted and repealed. Moreover, many knowledgeable people have questioned whether our drug policy is sensible. If thoughts about our policy could not be applied to licit substances because they are not defined as drugs, the insights of reformers would be deprived of their full critical potential, and hard questions would be resolved by definitional fiat.

Without an adequate definition, and in light of the enormous scope of the definitions that exist, it is difficult to say whether the United States has something that could be called a "drug policy"—or whether it would be desirable to have such a policy. Clearly, very different regulations are applied to very different kinds of drugs. Many drugs are used almost entirely for medical purposes. Some of these drugs are available only by prescription; others can be bought and sold at convenience stores. A handful of drugs are widely used for recreational purposes. They have psychoactive effects that many users find to be pleasurable. These drugs are also subject to very different kinds of controls. Caffeine is virtually unregulated, and is frequently consumed by children. Tobacco and alcohol are available to adults; devices (largely unsuccessful) to prevent access to adolescents are implemented. Many of these licit substances pose significant risks to public health and are implicated in a wide range of antisocial activity. According to some estimates, the use and abuse of prescription drugs kills as many as 100,000 Americans each year. The use of tobacco is the leading cause of preventable death in the United States, killing far more people annually (450,000) than all other drugs combined. Many more criminals are under the influence of alcohol than any other illicit drug. Consequently, researchers often call for more stringent regulations of these substances. But almost no one proposes to duplicate a scheme that remotely resembles the prohibitionist regime implemented in the case of illicit drugs. That is, no one proposes that the criminal law should punish all producers, sellers, possessors, or users of alcohol and tobacco.

One might anticipate that this definitional confusion would complicate endeavors to regulate drugs. In fact, current laws that govern illicit substances are largely unaffected by the lack of an adequate definition. The Controlled Substances Act creates the authority to regulate "drugs or controlled substances." "Substance" is undefined, and a substance is "controlled" if the act regulates it. Therefore, anything the statute regulates is a controlled substance (although alcohol and tobacco are explicitly exempted). The question of whether a substance is or is not a drug turns out to be irrelevant to the issue of whether it is subject to regulation under the terms of the act. No definition of drugs is needed.

Despite the fact that many more substances qualify as drugs than popular opinion would indicate, surely the topic of "drugs and crime" should focus on legal regulations of illicit substances. In what follows, "drugs" will be taken to include only those substances that are illicit and widely used for recreational purposes—primarily, the opiates (heroin, morphine, opium), cocaine (powder and crack), psychedelics (LSD and ecstasy), and marijuana.