Drugs are articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals, and any articles other than food intended to affect the mental or body function of humans or animals. Narcotics are any drugs that dull the senses and commonly become addictive after prolonged use.
In the scientific community, drugs are defined as substances that can affect a human's or animal's biological and neurological states. They may be organic, such as the chemical tetrahydrocannabinol (THC), which occurs naturally in marijuana; or synthetic, such as amphetamines or sedatives, which are manufactured in laboratories. Drugs can be swallowed, injected with a needle, applied to the skin, taken as a suppository, or smoked. Scientists categorize drugs according to their effects. Among their categories are analgesics, which kill pain, and psychoactive drugs, which alter the mind or behavior. Some psychoactive substances produce psychological highs or lows according to whether they are stimulants or depressants, respectively. Others, called hallucinogens, produce psychedelic states of consciousness; lysergic acid diethylamide (LSD) and mescaline are examples of such drugs. Marijuana is placed in its own category.
U.S. law categorizes these substances differently. Commonly, federal and state statutes distinguish drugs from narcotics. Drugs are substances designed for use in and on the body for the diagnosis, cure, treatment, or prevention of disease. These substances are regulated by the Food and Drug Administration (FDA). Drugs have been defined to include such things as herb tonics, cold salves, laxatives, weight reduction aids, vitamins, and even blood. Narcotics are defined by statute as substances that either stimulate or dull an individual's senses, and that ordinarily become habit-forming (addictive) when used over time. The regulation of narcotics falls into two areas. Legal narcotics are regulated by the FDA and are generally available only with a physician's prescription. The production, possession, and sale of illegal narcotics — commonly called controlled substances — are banned by statute.
Drug Laws
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 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 1903. Heroin, discovered in 1888, was prescribed for treating other addictions. California began restricting opium in 1875, but widespread criminalization of the substance would wait 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. Establishing federal jurisdiction over the domestic manufacture and sale of drugs, it also regulated foreign 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, demonized by the temperance movement, whose 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 it. 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.
Both 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 which drugs 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, since 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, like cough syrup mixtures containing some codeine, that are considered medically useful and less dangerous but can cause limited physical and psychological dependence. 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 put new drugs on 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, and 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 1994 crime bill imposed the death penalty for major drug trafficking (Pub. L. No. 103-322, 108 Stat. 1796). Generally, the highest price paid by drug offenders is prison time for trafficking. According to 1993 statistics from the Department of Justice, the average federal sentence for selling powder cocaine was 79 months; the average for trafficking in crack cocaine was 141 months.
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 one hundred 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 involving minors, pregnant women, and the sale of drugs within one hundred feet of public and private schools. States toughened their laws, too. Michigan, for example, imposed life imprisonment without parole for cocaine trafficking (Mich. Comp. Laws Ann. § 333.7403(2)(a)(i)).
Drug Policy and Law Enforcement
The enforcement of U.S. drug laws involves the use of substantial federal and state resources to educate, interdict, and prosecute. Estimates of the total annual cost of drug enforcement ranged from $20 billion to $30 billion in the 1990s. The federal government directs drug enforcement policy through the national director of drug control policy. Policy implementation involves both federal and state agencies, including the Justice Department, the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), the State Department, branches of the armed services and the U.S. Coast Guard, and local police departments. Drug enforcement is primarily a national effort, yet because drugs enter the United States from other countries, it also has international ramifications.
The war on drugs may be traced back to the 1960s when illicit drugs became popular. The accompanying increase in drug use led to comprehensive antidrug legislation under President Richard M. Nixon, whose administration introduced the metaphor of war for the drive to enforce drug laws. In the 1980s, under President Reagan, the campaign took its present form. The Reagan administration's public relations campaign, based on the slogan Just Say No, was bolstered by stricter state and federal drug laws. Federal spending to enforce drug laws rose from $37 million in 1969 to $1.06 billion in 1983. Over the next decade, it increased to approximately $30 billion, including the full cost of federal, state, and local law enforcement efforts, along with costs incurred by the judiciary and prison and health care systems.
Enforcement efforts are shared between federal and state governments. Joint federal-state task forces investigate illegal drug sales for two key reasons. First, states have declared an interest in eradicating the illegal sale and use of controlled substances through the enactment of severe antidrug laws, but they lack the necessary resources. Second, in return for their participation, state law enforcement agencies are eligible for federal funds that are crucial to their operation. Besides helping meet administrative expenses, these funds are used by local undercover police officers to buy drugs so they can arrest dealers.
As a result of these shared operations, prosecutors have broad discretion in pursuing drug offenses. They can charge defendants under federal law, state law, or sometimes both. The U.S. Constitution's protection against double jeopardy (being tried twice for the same crime) does not apply when separate jurisdictions bring charges, and the dual-sovereignty doctrine allows successive federal and state prosecutions; however, many states prohibit prosecution in their courts if the conduct has already been the subject of a federal prosecution. Prosecutors consider several factors when deciding where to bring charges: the relative severity of state and federal drug laws, the existence of minimum mandatory sentencing guidelines in federal court, and the comparative leniency of federal rules regarding wiretaps and informants. Although federal law generally is tougher because of its mandatory minimum sentences, nearly every state has enacted laws requiring mandatory prison time for certain drug offenses.
Prosecutors also take into account the kind of drug involved. Under federal sentencing guidelines, crack cocaine is treated much more harshly than powder cocaine. Prosecutors can also seek civil fines and civil forfeiture of property.
In addition to domestic efforts to police drug sales, international efforts are part of the war on drugs. These efforts include interdiction by federal law enforcement agents at the U.S. border to prevent drugs from entering the country. The federal government has also posted DEA agents in other countries, such as Bolivia and Colombia, as part of a broader campaign to prevent the flow of drugs into the United States. Throughout the 1980s and 1990s, the United States applied diplomatic pressure to the governments of Bolivia and Colombia to persuade them to end drug production in their countries. To continue receiving U.S. aid and government-backed loans, foreign nations have had to cooperate with the antidrug initiatives of Washington, D.C. In March 1996 President Bill Clinton cut off such aid to Colombia for lack of cooperation.
The courts have played a significant role in the war on drugs. Broadly speaking, under the Fourth Amendment, they have expanded the power of the police to conduct searches and seizures. In a series of decisions in the 1980s and 1990s, the U.S. Supreme Court ruled that police officers had the power to conduct warrantless searches of bus passengers, car interiors, mobile homes, fenced private property and barns, luggage, and trash cans. In Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), the Court held that no warrant was needed to seize narcotics that are recognizable by "plain feel" while an officer is frisking a suspect for concealed weapons.
In contrast, the Court restricted the power of state and federal governments to use civil fines and civil forfeiture of property as penalties in drug cases. In a 1989 case that had a substantial bearing on prosecutorial initiative in drug enforcement, the Court held that the government could not recover both a criminal fine and a civil penalty in separate proceedings (United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487). In 1993 the Court curtailed civil forfeiture laws by ruling that confiscation of property is subject to the Eighth Amendment's protections against excessive fines (Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488).
See: Criminal Law; Criminal Procedure; Education Law; Employment Law; Privacy; Schools and School Districts; Sports Law.
