Possession and Use of Drugs

Fundamentals of Criminal Law by Adam J. McKee

The criminal statutes governing the possession and use of drugs in the United States are a complex web of federal and state laws. These laws aim to control substances deemed dangerous or prone to abuse and vary significantly in severity and structure.

Federal Drug Laws

At the federal level, the Controlled Substances Act (CSA) is the cornerstone of drug regulation. It categorizes drugs into five schedules based on their potential for abuse and accepted medical use. Schedule I drugs, like heroin and LSD, have a high potential for abuse and no accepted medical use, leading to severe penalties for possession or use. Conversely, Schedule V drugs have lower abuse potential and accepted medical uses. Penalties under federal law can range from fines to life imprisonment, depending on the drug, amount, and presence of aggravating factors like prior convictions.

Model Penal Code and State Laws

Model Penal Code’s Provisions on Drug Offenses

The Model Penal Code (MPC), developed by the American Law Institute, offers a comprehensive framework for addressing drug offenses. Its provisions reflect a structured and graded approach, emphasizing the nature and quantity of controlled substances. This section provides a deep dive into the specific provisions of the MPC regarding drug offenses.

Categorization and Grading of Offenses

The MPC categorizes drug offenses based on the type of drug and the amount in possession. For instance, the possession of narcotics, hallucinogens, and other dangerous drugs is addressed under distinct sections, each with varying degrees of severity. The quantity possessed is a crucial factor; possessing a small amount of a drug might be treated as a petty misdemeanor, while larger quantities could escalate the offense to a felony. This grading system is pivotal in ensuring proportional responses to different levels of drug offenses.

Possession and Intent to Distribute

Under the MPC, the possession of drugs can range from simple possession to possession with intent to distribute. Simple possession often involves small amounts for personal use, while intent to distribute is inferred from larger quantities, indicative of potential trafficking or sale. The MPC makes a clear distinction between these two, often resulting in vastly different legal consequences.

Treatment of Marijuana

The MPC’s approach to marijuana is particularly notable. While it doesn’t explicitly legalize or decriminalize marijuana, its framework allows states to adapt their laws accordingly. The gradation of offenses under the MPC permits states to treat marijuana possession less severely compared to more dangerous drugs. This flexibility has paved the way for states to enact progressive policies regarding marijuana, ranging from decriminalization to full legalization.

Influence on State Drug Laws

The provisions of the MPC have significantly influenced state drug laws. Many states have used the MPC as a starting point, adapting its structured approach to their specific needs and societal attitudes. This has led to a mosaic of drug laws across the U.S., with some states adhering closely to the MPC’s provisions, while others have diverged significantly, especially concerning marijuana.

Public Health and Rehabilitation Focus

The MPC also acknowledges the importance of addressing drug offenses from a public health perspective. While it sets forth penalties for drug offenses, it also opens the door for states to incorporate rehabilitative and treatment-focused approaches, especially for minor offenses or first-time offenders. This aspect of the MPC reflects a growing recognition of the need to balance legal enforcement with public health interventions.

In summary, the Model Penal Code provides a comprehensive and flexible framework for addressing drug offenses. Its provisions on categorization, grading, and the treatment of different substances have significantly influenced state drug laws. The MPC’s approach allows for a balance between penalizing drug offenses and recognizing the importance of public health and rehabilitation, particularly in the context of evolving attitudes towards substances like marijuana.

Constructive Possession

Both federal and state laws recognize the concept of constructive possession. A person can be charged with possession even if they don’t physically have the drug on them, as long as they have control over the area where the drug is found or have the power and intent to control its disposition or use.

Use of Drugs and Related Offenses

Using illegal drugs can lead to additional criminal charges beyond possession. Federal and state laws penalize driving under the influence of drugs, public intoxication, and endangering others while under the influence. Penalties vary widely but can include fines, imprisonment, and mandatory drug treatment programs.

The Impact of Drug Scheduling

The classification of a drug under federal or state schedules greatly influences the severity of the penalties. Drugs deemed more dangerous lead to harsher penalties, while those with accepted medical uses or lower abuse potential result in lesser charges.

Schedule I Drugs

Schedule I drugs are considered the most dangerous. These substances have a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision. Examples include heroin, LSD, ecstasy, and certain other hallucinogens. Offenses involving Schedule I drugs often result in the most severe penalties due to their high abuse potential and lack of recognized medical applications.

Schedule II Drugs

Schedule II drugs have a high potential for abuse but may have some accepted medical uses, often with severe restrictions. These substances can lead to severe psychological or physical dependence. Examples include cocaine, methamphetamine, oxycodone, fentanyl, and Adderall. Penalties for Schedule II drugs are typically severe but may be slightly lesser than Schedule I offenses due to their limited medical usage.

Schedule III Drugs

Schedule III drugs have a lower potential for abuse than Schedule I and II substances and have currently accepted medical uses. These drugs can lead to moderate or low physical dependence or high psychological dependence. Examples include anabolic steroids, ketamine, and certain barbiturates. Legal penalties for Schedule III drugs are generally less severe compared to Schedules I and II.

Schedule IV Drugs

Schedule IV drugs have a low potential for abuse relative to Schedule III substances. These drugs have accepted medical uses and may lead to limited physical or psychological dependence. Examples include benzodiazepines like Valium and Xanax, as well as sleep aids like Ambien. Penalties for Schedule IV drug offenses are less severe, reflecting their lower abuse potential and accepted medical uses.

Schedule V Drugs

Schedule V drugs have the lowest potential for abuse compared to the drugs listed in the other schedules. These substances have accepted medical uses and typically lead to limited physical or psychological dependence. Examples include cough preparations with less than 200 milligrams of codeine per 100 milliliters, such as Robitussin AC. Offenses involving Schedule V drugs generally result in the least severe penalties due to their lower abuse potential and accepted medical applications.

In summary, the criminal statutes at both federal and state levels form a comprehensive legal framework governing the possession and use of drugs. These laws reflect a balance between public health concerns, the potential for abuse, and evolving societal attitudes toward different substances. The diversity of approaches among states, alongside the overarching federal regulations, underscores the complexity of drug law enforcement in the United States.

Modification History

File Created:  07/17/2018

Last Modified:  10/31/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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