Over the past decade, growing awareness of the dangers of certain kinds of drugs, and an increased tolerance of others, have brought changes to the law. It can be difficult to navigate this shifting landscape, but since drug offenses remain some of the most harshly punished crimes, it is vital to know what sorts of acts and what types of substances are prohibited by U.S. law.
A “controlled substance” is any substance whose sale and use is governed by law, a definition that includes everything from LSD to Robitussin cough syrup. The government classifies these substances by schedules that correspond to each substance’s acceptable uses and potential for dependency. The drugs deemed most harmful, with the fewest potential benefits, are classified as Schedule 1 drugs, while drugs that are thought to have the greatest medical usefulness and smallest potential for abuse are Schedule 5 drugs.
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Federal and state (and sometimes local) laws define possession of certain substances as illegal, but “illegal possession” may cover more – and less – territory than you expect. The definition of “illegal possession” varies depending on the substance, the amount, and the location. For example, in California, where recreational marijuana was decriminalized in 2016, an adult may possess up to 28.5 grams of marijuana. In contrast, Florida defines possession of more than 20 grams of marijuana (for non-medical use) as a third-degree felony. However, with all the variations from state to state, illegal possession laws generally have two common elements: the person with the controlled substance must know that it is a controlled substance, and the person must actually possess the substance, that is, have control over it. But “illegal possession” is not limited to substances like marijuana and heroin. Other substances are criminalized under certain circumstances, as are materials associated with drug use.
- Possession of drug paraphernalia. Both federal law and state law restrict the possession or use of drug paraphernalia. Federal laws make it illegal to sell, mail, import, or export drug paraphernalia while state laws may criminalize simple possession of these articles, which include bongs, roach clips, pipes, and spoons. Many of these items have alternative uses (e.g. smoking tobacco), so prosecutors may have to demonstrate that the items contain drug resin or show other evidence of illicit use.
- Illegal possession of prescription drugs. Illegal possession laws cover both substances that are (usually) illegal – marijuana, methamphetamines, cocaine, heroin, LSD – and substances that are otherwise legal but to which the possessor is not entitled – Xanax, hydrocodone, Vicodin, codeine, etc. Illegal possession laws encompass a range of behaviors that may not seem problematic at first glance. Many states, including Pennsylvania and Michigan, have made it illegal to possess a prescription drug without a valid prescription. State laws also criminalize selling or even sharing prescription drugs. In some states, including Maine, it is illegal to carry a prescription drug outside of the original container or in medically necessary repackaging, so in theory, a person could be prosecuted for carrying his or her own lawfully prescribed medication loose in a pocket or purse.
Distribution and Trafficking:
The terms “distribution” and “trafficking” refer generally to the same type of act. When comparing “distribution” and “trafficking,” there is a difference in degree rather than kind. Distribution involves selling, transporting, or generally providing controlled substances. This action rises to the level of “trafficking” if larger quantities of drugs are involved; the drugs don’t have to move from one state to another, nor do the drugs need to have changed hands. The ensuing penalties also will depend on the type and amount of drugs involved. Also, if an individual is caught with an amount of drugs deemed too large for personal use, that individual can be charged with intent to distribute. A prosecutor also can establish intent to distribute by presenting a witness to a drug deal or by showing the presence of drug paraphernalia like scales or packaging, or messages between people suggesting that they were interested in purchasing or selling drugs.
Manufacturing/Cultivating Proscribed Substances (meth, marijuana):
Drug manufacturing includes any activity that leads to the production of controlled substances. While the term “manufacturing” may call to mind images of the mobile meth lab in Breaking Bad, manufacturing encompasses a wide range of activities, including the sale of chemicals or equipment needed to make controlled substances. However, sellers of such preliminary goods can be held liable for manufacturing only if they knew or had reason to know that the buyer planned to use those goods to make drugs.
For purposes of federal law, cultivation of marijuana, opium, or hallucinogenic plants (e.g. hallucinogenic mushrooms) is proscribed and punished like manufacturing
New Marijuana Legalization:
The enforcement (and understanding) of drug laws has been complicated by a spate of state laws legalizing marijuana for both medical and recreational use. By early 2018, thirty states and the District of Columbia made some provision for the sale and consumption of cannabis; twenty-nine states have approved medical marijuana while nine states also permit recreational use. In states that permit medical marijuana sales, the drug may be sold through medical dispensaries or, in some instances, cultivated at home. In every state in which recreational marijuana has been allowed (with the exception of Vermont), marijuana is sold through private businesses, or may be cultivated at home in small amounts. Because the conditions for sale are circumscribed, purchases of marijuana outside of approved channels remain illegal. Nine states, including North Carolina and New York, have decriminalized marijuana, which means no arrest, prison, or criminal record for possession of small amounts of marijuana. However, decriminalization only addresses possession. These states still ban the sale of marijuana, which means that users have no legal source for the drug.
The picture is complicated by the fact that marijuana remains illegal under federal law. Federal law continues to define marijuana as a Schedule 1 drug, with high potential for abuse and no perceived medical use.