Drugs and Narcotics

Authority to regulate drug use rests foremost with the federal government, derived from its power to regulate interstate commerce. States are free to legislate so long as their laws remain consistent with federal law. Most states have adopted federal models for their own drug legislation.

Current law has two main objectives. First, it regulates the manufacture, sale, and use of legal drugs such as aspirin, sleeping pills, and antidepressants. Second, it prohibits and punishes the manufacture, possession, and sale of illegal drugs from marijuana to heroin, as well as some dangerous legal drugs.

The distinction between legal and illegal drugs is a twentieth-century phenomenon. During the nineteenth century, there was very little governmental control over drugs. The federal government regulated the smallpox vaccine in 1813 (2 Stat. 806) and established some controls through the Imported Drugs Act of 1848 (9 Stat. 237, repealed by Tariff Act of 1922 [42 Stat. 858, 989]). But addictive substances such as opium and cocaine were legal; in fact, the latter remained a minor ingredient in Coca-Cola soft drinks until 1909. Heroin, discovered in 1888, was prescribed for treating other addictions. California began restricting opium in 1875, but widespread criminalization of the substance would not come for decades.

States began a widespread movement toward control of legal and illegal drugs at the turn of the twentieth century. The federal government joined this process with the PURE FOOD AND DRUG ACT OF 1906 (34 Stat. 768, 1906, Ch. 3915, §§ 1–13, repealed by Federal Food, Drug, and Cosmetics Act of 1938), which primarily sought to protect consumers from "misbranded or poisonous" drugs, medicines, and alcohol. It established federal jurisdiction over the domestic manufacture and sale of drugs and also regulated drug imports.

Nevertheless, when Congress passed the Harrison Act of 1914 (Pub. L. No. 223, 38 Stat. 785), which imposed a tax on opium and cocaine, it stopped short of declaring either drug illegal. Most efforts to restrict drug use focused on alcohol. The temperance movement's PROHIBITION crusade culminated in the passage of the EIGHTEENTH AMENDMENT and the VOLSTEAD ACT of 1920 (41 Stat. 305), which made alcohol illegal. Alcohol remained illegal until the repeal of Prohibition in 1933.

Despite numerous amendments, flaws in the Pure Food and Drug Act spurred Congress to replace the statute. In 1938, federal lawmakers enacted the Federal Food, Drug, and Cosmetics Act (FFDC) (21 U.S.C.A. §§ 301 et seq.), which established the Food and Drug Administration (FDA) as the federal agency charged to enforce the law. The FFDC exerted broad control over the domestic commercial-drug market. Over the next two decades, states and the federal government continued to criminalize nonmedicinal and recreational drugs, and by midcentury, the division between legal and illegal drugs was firmly in place. In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act (21 U.S.C.A. §§ 801 et seq.), which continues to be the primary source of federal law on controlled substances.

Over-the-counter and prescription drugs are tightly regulated under the FFDC. This act and the Kefauver-Harris Drug Amendments of 1962 (Pub. L. No. 87-781, 76 Stat. 781) give the FDA a broad mandate. The agency protects consumers from the potential hazards of dangerous drugs, misleading labels, and FRAUD. The FDA sets standards of safety and quality, and its enforcement duties include the research, inspection, and licensing of drugs for manufacture and sale. Because the law requires that drugs not be adulterated, the FDA ascertains that they conform to legal standards of strength, quality, and purity. It also classifies the drugs that are to be dispensed only by a physician's prescription. Finally, new drugs can be placed on the market only after being approved by the FDA. Traditionally a slow process, FDA approval was speeded up significantly for some drugs in the 1980s and 1990s, largely in response to the AIDS epidemic.

To control the use of dangerous drugs, federal law and most state statutes use a classification system outlined by the Uniform Controlled Substances Act, based on the federal Comprehensive Drug Abuse Prevention and Control Act. This system includes both illegal and dangerous legal drugs. It uses five groups, called schedules, to organize drugs according to their potential for medical use, harm, or abuse, and it imposes a series of controls and penalties for each schedule.

Heroin, hallucinogens, and marijuana are placed on schedule I, as they are thought to have a high potential for harm and no medical use. Other types of opiates and cocaine are on schedule II. Most depressants and stimulants are on schedule III. Some mild tranquilizers are on schedule IV. Schedule V is for drugs that are considered medically useful and less dangerous but that can cause limited physical and psychological dependence, such as cough-syrup mixtures that contain some codeine. Under the law, drugs may be rescheduled as new evidence of their uses or risks becomes apparent, and the attorney general has the authority to add new drugs to the schedules at any time.

Penalties are established according to the severity of the crime. Possession of a controlled substance is the most simple crime involving drugs. Possession with intent to sell is more serious. Selling or trafficking incurs the greatest penalties. The exact penalty for a particular offense depends on numerous factors, including the type of drug, its amount, and the convicted party's previous criminal record. Penalties range from small monetary fines to life imprisonment and even greater punishments. Under a general expansion of federal offenses that can invoke CAPITAL PUNISHMENT, the Violent Crime and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, imposes the death penalty for major drug trafficking. Generally, the highest price paid by drug offenders is prison time for trafficking. In 1999, according to statistics from the DEPARTMENT OF JUSTICE, the average sentence for drug offenders engaged in drug trafficking was 77.1 months, compared to an average of 15.8 months for drug possession.

Between the mid-1980s and early 1990s, lawmakers enacted the harshest drug laws in U.S. history. The impetus for these laws came from the so-called war on drugs, a broad federal and state public-policy push initiated under President RONALD REAGAN that received widespread public support. Among its many initiatives was the creation of the cabinet-level office of the national director of drug control policy, known as the drug czar, to coordinate national and international antidrug efforts.

The war on drugs also created a patchwork of antidrug laws. These included the Anti–Drug Abuse Act of 1986 (Pub. L. No. 99-570, 100 Stat. 3207), which toughened penalties for drug violations involving cocaine, especially its smokable derivative, crack. The law imposed mandatory minimum sentences, even for first-time offenders. For sentencing purposes, it established a ratio that regards one gram of crack as equivalent to 100 grams of powder cocaine. While greatly increasing the number of drug offenders in prisons, the law has provoked considerable controversy over its effect on minorities. The Anti–Drug Abuse Act of 1988 (Pub. L. No. 100-690, 102 Stat. 4181) further increased federal jurisdiction over drug crime. For the first time, it became a federal crime to possess even a minimal amount of a controlled substance. Penalties were added for crimes that involve minors, pregnant women, and the sale of drugs within 100 feet of public and private schools. States toughened their laws, as well. Michigan, for example, imposed life imprisonment without PAROLE for cocaine trafficking (Mich. Comp. Laws Ann. § 333.7403[2][a][i]).

Under the Violent Crime and Law Enforcement Act, Congress exempted certain first-time, non-violent offenders from minimum sentencing. An exempted person must be a first-time offender with a limited criminal history; must not have used violence or possessed a weapon during the offense; could not have organized or supervised activities of others; and must provide truthful information and evidence to the government during the offense.

The fight against illegal drugs has extended to housing. The Anti-Drug Abuse Act mandates that every local public-housing agency insert a clause in its standard lease document that gives the agency the right to evict tenants if they use or tolerate the use of illegal drugs on or near their premises.

The law has been lauded as an effective means of ridding public housing of drug dealers and other criminal activity that comes with it. However, critics have contended that many elderly citizens who live with their children and grandchildren have been unfairly evicted under this zero-tolerance policy. These critics have argued that the eviction of so-called "innocent" tenants violates the 1988 law, as Congress only meant to penalize those persons who have knowledge of drug use. The U.S. Supreme Court, in Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002), rejected these arguments, ruling that the law clearly gives the housing agency discretion to evict tenants, whether or not they knew about drug use. The case arose when a 63-year-old grandmother in Oakland, California, was evicted when her adult daughter had been caught using crack cocaine three blocks from her mother's house.