Drugs and Crime: Legal Aspects

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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.

Drug control regulations in the twentieth century

At the beginning of the twentieth century, the use of (what are now) illicit substances was virtually unregulated. Although several states outlawed the smoking of tobacco and the drinking of alcohol, Americans were free to buy opiates (primarily opium and morphine) and cocaine in a variety of forms. These substances were widely dispensed by doctors, and available for purchase in pharmacies, retail outlets, and even by mail order. Many popular patent medicines contained mixtures of opiates and cocaine. Although millions of Americans consumed these substances throughout the nineteenth century, these drugs were rarely linked with deviance, violence, crime, or other social pathologies often associated with illicit drugs today. At the time, the typical opiate addict was a southern, middle-age, middle-class white woman. Relatively few users were addicts. Many of those users who were addicts did not know the contents of the patent medicines that helped to make them feel better.

The first significant federal drug regulation—the Food, Drug and Cosmetic Act of 1906—required manufacturers to list the drugs contained in their products. As a result of better information, the sales of patent medicines containing opiates and cocaine plummeted, and the incidence of illicit drug use and addiction declined. Further steps were advocated by a coalition of religious leaders, health professionals, and xenophobic Americans worried about the behavior of immigrants. The subsequent decade introduced sweeping federal regulations, culminating with the national prohibition of alcohol in 1920. Although local ordinances dating to 1875 forbade modes of drug consumption preferred by immigrants and minorities—such as the smoking of opium—the first prohibitionist measure on the federal level was the Harrison Narcotics Act of 1914. This act did not explicitly prohibit the use or possession of narcotics, but required doctors and chemists to register, pay taxes, and keep records of drug transactions. In 1919, the Supreme Court (in Webb v. United States, 249 U.S. 96) construed the act to prohibit physicians from prescribing narcotics to treat the "disease" of addiction. By the 1920s, the United States had reached a consensus that neither opiates nor cocaine had a legitimate use except for a handful of medical purposes. As a result, recreational use and addiction were transformed from medical problems to a concern for the criminal justice system. By this time, the demographic profile of the typical opiate or cocaine user had changed dramatically. The use of opium and cocaine had declined among the middle classes, but had risen among minorities and the poor. Although alcohol prohibition was repealed in 1933, no significant group called for the repeal of prohibitions of opiates or cocaine.

Although marijuana was not included in the Harrison Act, thirty-three states had adopted legislation against the nonmedical distribution of marijuana by 1933. In 1937, Congress effectively added marijuana to the list of illegal substances by passing the Marihuana Tax Act—enacted under the state's taxing power to avoid a constitutional challenge to a law enacted under the power to regulate interstate commerce. In 1961, through the United Nations Single Convention on Narcotic Drugs, fifty-four nations agreed to prevent illicit traffic in cannabis.

LSD, discovered by a Swiss chemist in 1938, was frequently used in psychotherapy, but prohibited in 1966 when medical opinion turned against its safety and effectiveness. MDMA, or ecstasy, also originally developed as a therapeutic drug, was banned in 1985—despite continuing opposition from a vocal group of psychiatrists.

Regulations in place in 2001

In 1970, Congress supplanted previous statutory schemes for prohibiting drugs by enacting the Comprehensive Drug Abuse Prevention and Control Act, more popularly known as the Controlled Substances Act. This act, amended many times, continues to serve as a model for drug prohibitions by the majority of states—although the details vary from one jurisdiction to another. This act divides "drugs or other substances" onto five "schedules." The placement of a drug on a given schedule affects manufacturing quotas, import restrictions, dispensing limits, and criminal penalties for unlawful trafficking. Drugs without a currently acceptable medical use and with a high potential for abuse are assigned to Schedule I—which includes marijuana, LSD, and heroin. Of course, the determination of whether a substance has or lacks a medical use is enormously controversial. By 2001, initiatives to allow the medical use of marijuana had been approved in each of ten jurisdictions in which they had been placed on the ballot (California, Hawaii, Oregon, Washington, Arizona, Alaska, Maine, Nevada, Colorado, and the District of Columbia). These initiatives remain incompatible with federal law, which continues to proscribe the possession of marijuana for any purpose.

Under federal law, the severity of punishment is derived from the complex interaction of sentencing guidelines with mandatory minimum statutes. Prior to 1986, federal judges retained broad flexibility to tailor sentences for drug offenders to the particular circumstances of the offender. The Anti-Drug Abuse Act of 1986 dramatically transformed the sentencing of drug offenders by imposing mandatory minimum sentences, eliminating the possibility of probation or parole for most offenses, and increasing terms of incarceration. This act mandated a five to forty year sentence, with no possibility of parole, for first offenders convicted of possession with intent to distribute relatively small quantities of designated drugs (e.g., 10 grams of PCP or 1 gram of LSD, even if these drugs are diluted in mixtures). Sentences of ten years to life, with no possibility of parole, were mandated for first offenders convicted of possession with intent to distribute large quantities of drugs. Amendments to the act in 1988 imposed mandatory minimums for simple possession offenses, provided for the eviction of public housing residents if any member or guest of the household was involved in given drug offenses, and established the death penalty for persons engaged in "continuing criminal enterprises" who commit or solicit the commission of murder to further the criminal enterprise. The Violent Crime Control and Law Enforcement Act of 1994 significantly increased mandatory minimums for possession offenses still further, and authorized capital punishment for several new offenses. Mandatory minimums were doubled for defendants with a prior conviction for a drug felony, and were increased if drugs are distributed to a person under twentyone, to a pregnant woman, or near a school or video arcade facility.

Punishments for the possession of crack are especially harsh. The maximum term of imprisonment for possession of up to 5 grams of crack is one year, but a first offender convicted of possessing more than 5 grams receives a mandatory minimum of five years. Five hundred grams of powder cocaine are needed before defendants receive a mandatory five-year sentence, thus creating the notorious 100–1 sentencing disparity that has given rise to strong allegations of racist sentencing practices. Crack offenders are disproportionately black, whereas powder cocaine offenders are more likely to be white. In 1995, the Sentencing Commission recommended that Congress reevaluate the disparity in punishment between cocaine and crack offenses, but both Houses of Congress rejected the commission's recommendation. Shortly before leaving office, President Clinton recommended that this disparity be reduced.

Under federal law, a defendant may evade the mandatory minimum sentence in only one way. Upon a motion by the prosecution—which remains within his discretion—the sentence may be reduced for a defendant who fully cooperates with the government in the investigation or prosecution of other drug offenders. This exception is unlikely to be available to persons who play relatively minor roles in drug distribution schemes and thus have no useful information to provide. Far more prevalent are provisions that enhance sentences. Offenders with a prior criminal history, who use a gun, who create a substantial risk of bodily harm to others, or who victimize someone especially vulnerable, all are subject to increased sentences.

Marijuana has been the least harmful and most widely used illicit drug during the last century. As a result, criminal prohibitions are the most controversial, and differ significantly from state to state. In ten states, possession of small amounts of marijuana is punishable only by a fine. In many other states, incarceration is an option that is exercised infrequently. Federal law, however, punishes possession of small amounts of marijuana with a fine of $1,000 to $10,000 and up to one year in prison—the same sentence imposed for possession of small amounts of heroin or crack. Between 1991 and 1995, arrests for the use of marijuana doubled in the United States; by 1999, over 700,000 persons were arrested for marijuana offenses. New York City led the nation in these arrests, 88 percent of which were for simple possession.

New drugs are added or rescheduled from time to time. Highly publicized cases of drugs used to facilitate rape led to the Date-Rape Drug Prohibition Act of 1999, which added penalties for GHB (gamma hydroxybutyric acid).

Dissatisfaction with drug prohibition

A broad consensus has emerged that punishments for nonviolent drug offenses are too severe. Many commentators and citizen groups (such as Families Against Mandatory Minimums) argue that the mandatory minimum sentences for drug offenders should be repealed to restore judicial discretion in sentencing. Among other difficulties, these sentences create "cliffs," and thus are alleged to produce the very inequities they were designed to rectify. The mandatory minimum for an offender who sells 500 grams of cocaine, for example, is double that of an otherwise identical offender who sells 499 grams. In addition, sentences are based on the weight of the drugs seized, rather than on the role of the defendant in the distribution scheme.

Many thoughtful and knowledgeable citizens make more radical criticisms, arguing that contemporary drug policy is fatally flawed and should be drastically revised. They allege that drug prohibition is both ineffective and counterproductive. They point to the fact that the billions of dollars expended on law enforcement over dozens of years has failed to achieve a significant reduction in either the demand or the supply of illicit drugs. A few statistics help to tell the story. In 2000, approximately 460,000 drug offenders were incarcerated—about the same number as the entire prison population in 1980. Nearly one in four prisoners in America is behind bars for a nonviolent drug offense. In each year since 1988, more drug offenders than violent criminals have been incarcerated. Nonetheless, about 80 or 90 million living Americans have experimented with illicit drugs at some time in their lives. Every day, about sixty-four thousand Americans try marijuana for the first time. In 1999, approximately 15 million Americans were regular users of illicit drugs. Although this figure is roughly two-thirds of the peak of illicit drug use in 1979, it is comparable to statistics in preceding years. An ongoing effort often likened to a "war" has had little obvious impact on recent trends in drug use. Totalitarian countries like China may have succeeded in reducing its population of addicts from about 40 million (in the end of the 1930s) to almost zero in the span of a single generation. A free society, however, may lack acceptable means to reduce demand further.

Efforts to curb supply have proven no more successful. In 1999, 90 percent of high school seniors reported that marijuana is fairly easy or very easy to obtain; 44 percent say the same about cocaine, and 32 percent say the same about heroin. The street price of most illicit drugs has fallen since 1980—sometimes dramatically—indicating that quantities remain abundant. Even when eradication programs are successful in some countries (such as Peru, Bolivia, and Afghanistan), other countries (like Mexico) simply increase production to fill the void. Sometimes, production moves to the United States; at the outset of the twenty-first century, much and perhaps most of the marijuana consumed in this country is grown domestically. Economic considerations indicate that effective curbs on production are unrealistic. The value of global drug markets exceeds the GNP of 90 percent of countries in the United Nations. Prohibitionists frequently demand to redouble efforts to curtail supplies when the above statistics are cited. Skeptics ask why they should suppose that success is possible tomorrow, when efforts have failed thus far.

Just as importantly, drug prohibitions are said to be counterproductive in many ways. Drug prohibitions have created enormous profits for organized crime, contributed to widespread corruption in law enforcement, increased hypocrisy and mistrust, decreased the purity and safety of drugs, eroded civil liberties, glamorized drugs through the "forbidden fruit" phenomenon, discouraged the use of illicit drugs for legitimate medical purposes, fostered disrespect for law and legal institutions, distorted foreign policy, and placed a lucrative industry beyond the reaches of taxation.

Three counterproductive effects are especially worrisome. First, drug prohibitions have always been enforced more vigorously against minorities. Although whites and blacks are roughly comparable in their rates of drug use, blacks are arrested, prosecuted, and punished for drug offenses far more frequently and harshly than whites. In 2000, about ten million whites and two million blacks were current users of drugs. Even though white drug users outnumber blacks by a 5-to-1 margin, blacks comprise 62.7 percent and whites 36.7 percent of all drug offenders admitted to state prisons. These racial disparities are significantly higher in some states than in others. In Maryland, blacks constitute 90 percent of all drug admissions. In Illinois, the state with the highest rate of black male drug offender admissions to prison, a black man is fiftyseven times more likely to be sent to prison on drug charges than a white man. Some of these disparities result from controversial practices of "racial profiling"—the police practice of stopping, searching, and questioning criminal suspects solely on the basis of their race.

Second, drug prohibitions have a significant impact on women and their families. Between 1990 and 1997, the number of women serving time in prison for drug offenses nearly doubled, compared to a 48 percent increase in the number of men in prison for drug offenses. Forty-four percent of women incarcerated for drug offenses were convicted of mere possession. The impact of drug prohibitions has fallen disproportionately on black women. Black women constitute 6.3 percent of the national adult population and 7 percent of prison drug admissions; white women constitute 43.2 percent of the national adult population but only 5.4 percent of drug admissions. Punishing women is especially harmful to the welfare of their children, who are more likely to become criminals themselves when their mothers are incarcerated.

Finally, drug prohibitions have had a terrible impact on the lives of tens of millions of Americans whose only crime has been the use of drugs. Simple possession was the most serious conviction in 28 percent of drug offenders sentenced to state prison. By 1996, the median sentence imposed for mere possession of a controlled substance in state courts rose to twenty-four months. After release, these individuals are less employable, more likely to be rearrested, and ineligible for many public benefits and services.

Those who defend the status quo are understandably disturbed by the foregoing problems. Still, supporters of prohibitionist policies typically counter that a relaxation in punishment would swell the numbers of drug users and the myriad social pathologies associated with drug use. Criminal justice experts are divided on such issues as whether more or less economic crime would result from less punitive policies. Reduced punishments for sellers would probably decrease the cost of drugs, so users might not need to resort to property offenses to obtain the money to buy drugs. On the other hand, reduced punishments would be likely to increase the number of drug users, thereby expanding the size of the population prone to commit economic crimes. Experts also disagree about the extent of psychopharmacological crime caused by the use of various drugs. Public anxiety about drug use is fueled by the perception that people under the influence of drugs often behave violently and irrationally. Evidence suggests, however, that the effects of drugs on aggression are mediated by individual predispositions, social expectations, and cultural differences. Changes in these psychopharmacological effects are impossible to predict in the event that the criminal justice system became more tolerant of the use of various drugs.

Even apart from economic and psychopharmacological crime, many thinkers in criminal justice regard drug control as crime control. Violent crime has fallen precipitously in the United States throughout the 1990s. The enforcement of petty drug offenses (especially in big cities like New York) has been more vigorous over the same period of time. These two phenomena are likely to be related. The kinds of persons arrested and punished for drug offenses (e.g., young, male, black, willing to defy authority) overlap significantly with the kinds of persons who are likely to commit violent crimes. If drug prohibitions were enforced less vigorously, some predict an eventual increase in the crime rate. Others dispute these allegations.

Significantly, public opinion seems not to regard this dispute as pivotal. About two-thirds of the American public say they would oppose the legalization of cocaine and heroin, even if they could be guaranteed that it would lead to less crime. This finding suggests that public support for punitive policies is more about moral values than about many of the tangible harms that drug use is said to cause. William Bennett and Barry McAffrey—the country's two most prominent "drug czars"—have also characterized drug prohibitions as a moral crusade in several publications from the Office of the National Drug Control Policy.

Perhaps the most hotly contested issue between prohibitionists and their critics is how the failure to punish users would affect the incidence of drug use. Estimates vary wildly. What data are helpful in attempts to answer this question? The recent experience in many European countries may be suggestive. By 1999, the use of marijuana had been decriminalized in many parts of Europe (Italy, Spain, Switzerland, Ireland, and parts of Germany and Austria), and is openly tolerated in the Netherlands. Yet rates of illicit drug use (apart from heroin) are never higher, and usually are much lower, than those in the United States.

Models of drug control should not assume that the only or most effective means to discourage the use of illicit drugs is by punishing offenders. The deterrent efficacy of drug prohibition may be marginal. Approximately seven-eights of frequent users of cocaine or heroin are never arrested. Few nonusers of illicit drugs indicate that they would be willing or eager to experiment if they could be confident that they could escape detection. Significant reductions in the use of licit substances such as tobacco and alcohol have been achieved in the last two decades of the twentieth century without the need to resort to criminal punishment. Public advertising campaigns have helped people recognize the health hazards posed by these substances. In addition, many private companies test employees for illicit drug use. States can also implement licensing, prescription controls, time and place restrictions, taxation, zoning ordinances, bans on advertising, and a host of other measures to discourage use.

Even those who are firmly persuaded that our drug policies are fundamentally flawed disagree about what should replace them. "Harmreduction" has become a popular framework for evaluating alternatives to prohibition. According to this perspective, an ideal drug policy should strive to minimize the sum of harm or disutility caused by drug use and by drug law enforcement. This objective has an obvious plausibility. Experts disagree, however, about which combination of policies is most likely to achieve this goal. Moreover, the supposition that our policies should strive to minimize harm threatens to lose sight of the principles that many believe to be at stake in drug prohibition. The allegation that drug policies are unjust is independent of the foregoing objections, inasmuch as it does not depend on whether drug prohibitions can be made to work, or to produce more good than harm. Of course, arguments of principle are made on both sides of the debate.

Arguments in favor of fundamental change in existing drug policy are difficult to construct in the absence of a detailed argument in support of the status quo to which they can respond. Drug prohibitions have been defended as necessary to protect the young, to reduce crime, to safeguard public health, to prevent moral corruption, and to reverse just about everything that anyone has ever believed to be deficient about contemporary society. There may be no evil that has not been blamed on drugs. A comprehensive argument for radical change must rebut each of these arguments for criminalization.

Little about drug policy seems to be settled at the beginning of the twenty-first century. The waning of the "crack epidemic" of the late 1980s—and the public hysteria that surrounded it—may help to make the political climate more receptive to change. The inevitable development of new drugs—such as those used to increase sexual potency and pleasure—threaten to create problems for existing regulatory schemes. One thing is clear. Ambitious calls to achieve a "drug-free" society are doomed to failure. The use of psychoactive substances to alter consciousness and produce euphoria is pervasive in human history. No known societies (except perhaps that of the Eskimos) have been "drug-free." Some researchers have speculated that the desire to alter consciousness may be an innate, biological characteristic of our species.

Douglas Husak

See also Alcohol and Crime: Legal Aspects; Criminalization and Decriminalization; Drugs and Crime: Behavioral Aspects; Excuse: Intoxication; Police: Policing Complainantless Crimes; Victimless Crimes.

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