Continuing Legal Questions
A more recent chapter in the saga of drugs and race came in the mid-1990s, with proposals to make penalties for crack sales and usage much higher than those for cocaine. Civil Rights leaders decried this initiative as racist, citing the fact that whereas most cocaine users are white and middle class, the majority of crack users are poor and African American. Advocates of the sentencing laws, by contrast, held that race had nothing to do with it: crack is even more dangerous than cocaine, and therefore its manufacture, sale, and use should be treated with even greater seriousness. Whereas opponents demanded that crack penalties be reduced to the same level as those for cocaine, few suggested a third alternative: raising the cocaine penalties to be equal with those for crack.
Clearly not all drugs are the same, and this principle is embodied in the Controlled Substance Act, passed in 1970 in response to the growth of recreational drug use. The act separates drugs into five "schedules" based on a number of criteria that include the drug's potential for abuse, its pharmacological effects, current scientific knowledge regarding it, and other factors. LSD, heroin, and marijuana belong to Schedule I, drugs which have a high potential for abuse, a "lack of accepted safety," and no currently accepted medical use. By contrast, PCP, cocaine, morphine, and methamphetamine belong to Schedule II, because they do have currently accepted medical uses. By the late 1990s, a number of states had passed initiatives allowing medical use of marijuana, which is useful in treatment of glaucoma and other diseases, but the drug was not moved to Schedule II. The remaining three schedules consist of legal drugs, and are based on increasingly diminishing abuse potential, with the lowest level, Schedule V, consisting of such items as over-the-counter cough medicine containing codeine.
Among the constitutional issues relating to drug use that remained in the forefront during the 1980s and 1990s were Fourth and Fifth Amendment questions regarding drug testing and search and seizure. Particularly potent topics included mandatory urinalysis and drug testing, and "knock and announce" rules requiring police to knock and announce their authority and purpose before entering a home with the intent to seize drugs, as in Richards v. Wisconsin (1997), for instance. Government power to seize the assets of persons convicted of drug sale or manufacture was on the rise, a fact evidenced by the Supreme Court's rulings in the 1996 cases of United States v. Ursery and Bennis v. Michigan. These rulings have in turn raised an outcry from civil libertarians, who hold that anti-drug policy is abused as a means of increasing government control over the citizenry.
The debate over legalization continues. Advocates come from the left, including a number of civil liberties groups, and from the right: conservative pundit William F. Buckley, whose magazine, the National Review, devoted its February 12, 1996, issue to the topic, is among the most outspoken proponents of legalization. U.S. Superior Court Judge James P. Gray, in a Spring 1994 Police News article, presented logic that echoed that of Schess nearly 70 years before: criminalization, he wrote, did nothing to address the desire for drugs on the part of its users, and the difficulty of obtaining illegal substances greatly increased the economic inducements to engage in the drug trade. According to Gray, if drugs were legalized, "Without a doubt, some people will continue to buy and abuse drugs.... However, since there would be no incentive to `push' these drugs... the usage should not be above the present rate, and probably, after a possible initial surge, would be materially reduced."
But just as there are compelling arguments for legalization, likewise there are persuasive ones against it, particularly where "hard drugs" such as heroin, cocaine, and crack are concerned. Under the present situation, a recovering drug addict would undoubtedly find it relatively easy to remove him or herself from an environment in which drugs are readily available, whereas if he or she could obtain cocaine at the local drug store, the temptation to relapse might be much higher. In any case, all sides generally agree on two points: recreational drug use is not going away, and most of the government's initiatives to stop it have failed to produce a substantial and lasting decrease in the drug trade.