Chapter 20 - Public Policy In Other Countries - US

Current legislation and enforcement

 

Federal law

 

The Controlled Substances Act

In 1970 the U.S. Congress enacted the federal Controlled Substances Act (the CSA) [1][216] pursuant to the federal authority to regulate interstate commerce.[2][217] This Act repealed most of the earlier federal legislation, including the Harrison Act and the Marihuana Tax Act, and is the foundation of U.S. federal drug law today. Based on a series of schedules, drugs are categorized and controlled to varying degrees. The most restrictions are placed on Schedule I drugs which cannot be possessed by anyone, except for the purpose of research that has been licensed by the federal government. This schedule includes drugs such as marijuana, heroin, MDMA, LSD and peyote which are deemed to have no medical use and a high abuse potential. Schedule II substances, which have an accepted medical use and are deemed to have an abuse potential less than those in Schedule I, are also subjected to tight controls. Included in Schedule II are cocaine, opium, morphine, meperidine (Demerol) and codeine.

The enactment of the CSA in 1970 represented a significant change in one key respect. Marijuana was differentiated from other drugs and federal penalties were reduced, not only for possession, but also for trafficking and distribution offences. This was to change, however, during the Reagan administration in the 1980s.

In 1982 President Reagan signed an executive order creating the post of White House Drug Policy Advisor. The Comprehensive Crime Control Act of 1984, the Anti-Drug Abuse Act of 1986 and the Anti-Drug Abuse Amendment Act of 1988 raised federal penalties for various drug-related offences (including marijuana offences), increased funding for drug control activities and sought to improve the coordination of federal drug control efforts. The National Narcotics Leadership Act of 1988 created the Office of National Drug Control Policy, the director of which is commonly referred to as the "Drug Czar."[3][218]

Many commentators have suggested that these laws were passed during a time of extreme anti-drug hysteria resulting from the introduction of crack cocaine.[4][219] Propagated by politicians and embraced by the mainstream media, myths regarding crack likely had a significant impact on the increased use of mandatory minimum sentences and the expansion of the American "war on drugs" during the Reagan era.

 

Scheduling under the CSA–the example of marijuana

An examination of a petition to the Drug Enforcement Administration to reschedule marijuana is instructive of the scheduling process under the CSA.[5][220] In concluding that marijuana should remain in Schedule I, the Department of Justice considered eight factors:

··          The drug’s actual or relative potential for abuse;

··          Scientific evidence of its pharmacological effects;

··          The state of current scientific knowledge of the drug;

··          Its history and current pattern of abuse;

··          The scope, duration and significance of abuse;

··          What, if any, risk there is to public health;

··          The drug’s psychic or physiological dependence liability; and,

··          Whether the drug is an immediate precursor of a substance already controlled under the CSA.

 

The petition to reschedule was denied in part on the basis that marijuana has a high potential for abuse. While the term "abuse" is not defined in the CSA, the administration examined various factors in ascertaining the potential for abuse. Most important was its finding that individuals are taking the substance in amounts sufficient to create a hazard to their health or to the safety of other individuals or the community. It was determined that while marijuana has low levels of toxicity compared to other drugs of abuse, there are a number of risks resulting from both acute and chronic use, such as dizziness, nausea, time distortions, impaired judgement and short-term memory impairment. Also noted were studies from some authors who described a "marijuana withdrawal syndrome" consisting of restlessness, mild agitation, insomnia, nausea and cramping that resolves within days.

Another significant element of the analysis that precluded rescheduling marijuana was the fact that the drug has no currently accepted medical use in the United States. The Food and Drug Administration has not yet authorized treatment using marijuana. To do so would require that the following conditions be satisfied:

··        The drug’s chemistry must be known and reproducible;

··        There must be adequate safety studies;

··        There must be adequate and well-controlled studies proving efficacy;

··        The drug must be accepted by qualified experts; and,

··        The scientific evidence must be widely available.

 

Proposed legislation

The legislative war on drugs continues in the U.S. Congress. The proposed Drug Dealer Liability Act of 1999 passed in the U.S. House of Representatives and was received in the Senate at the end of 2000. It would impose civil liability on drug dealers for the harm caused–either directly or indirectly–by the use of controlled substances. Even the drug users themselves would be permitted to sue for damages, although the statute requires that they first disclose to narcotics enforcement officers everything they know about the source of the illegal drugs. While it is not clear whether this bill will be made law, a model Drug Dealer Liability Act has so far been adopted by 13 states.[6][221]

Legislation entitled the Protecting Our Children from Drugs Act of 2000 was passed by the House of Representatives on 17 October 2000. It would amend the Controlled Substances Act to further increase penalties for drug dealers who involve children in the drug trade. Mandatory minimum sentences would increase for dealers who use children under 18 to distribute drugs in or near schools or other "protected locations" such as playgrounds and video arcades. Other proposed initiatives include the Drug Free America Act of 2001, the Domestic Narcotic Demand Reduction Act of 2001 and the Drug Treatment and Research Enhancement Act of 2001.

 

Federal penalties

The following charts provide a summary of the fines and the terms of imprisonment for selected violations of the federal Controlled Substances Act and related federal laws.[7][222] Note that for a third felony drug offence involving amounts constituting a top level offence, there is a mandatory life sentence without the possibility of release. Also note that the indicated weights refer to any mixture containing a detectable amount of the illegal drug regardless of the substance in the mixture. "Conspiracy" and "attempt" offences carry the same penalties as the underlying offence.

 

Table 1[8][223]

 

 

Table 2

 

 

State laws

 

General

In the U.S. a group called the National Conference of Commissioners on Uniform State Law has the task of drafting legislation that is to be recommended for adoption by all states in an effort to promote legislative consistency throughout the nation. The most recent Uniform Controlled Substances Act was drafted in 1994. The Act sets out the prohibited activities in detail but specific fines and sentencing are left to the discretion of the individual States. Most states have substantially adopted the major provisions of the Uniform Act[12][227] with the exception of New Hampshire and Vermont where the state laws are not a substantial adoption of the Uniform CSA, although they contain some similar provisions and have the same general purpose. Also of note are the medical marijuana exemptions discussed below.

In terms of sentencing, there are significant discrepancies between states.[13][228] With respect to sentencing for other drug offences, some states have experimented with extremely harsh penalties. New York’s "Rockefeller Laws," for example, are referred to herein in the section entitled "Key Reports and Studies." Other states that adopted similar "get-tough" penalties are now re-examining mandatory minimums, often as a result of fiscal considerations. For example, the state legislature in Louisiana overhauled its drug laws in June 2001. New legislation has cut drug sentences and repealed mandatory minimums for many non-violent crimes. As one republican legislator was quoted as saying, "It’s costing us too much to lock these people up and throw away the key."

 

Medical marijuana

Since 1978, medical marijuana laws have been enacted in 35 states. Five have since expired or been repealed but the balance remain on the books. Of those remaining:

··          12 states have "Therapeutic Research Program" laws that purport to permit scientific research (although this is complicated by the federal prohibition).

··          10 states (and the District of Columbia) have symbolic laws that recognize the potential medicinal value of marijuana, but do not provide any protection from arrest.

··          8 states have laws that effectively allow patients to use medical marijuana despite federal law.

 

The following chart provides details of the eight states with effective medical marijuana laws. While marijuana possession is still a federal crime, most drug arrests are made by state and local officials. Since the federal government cannot force state and local police to enforce federal statutes, medical marijuana users are usually able to avoid prosecution in these states. However, since pharmacies do not sell marijuana, some distribution centres called "buyers’ clubs" have emerged and these operations have been hampered by federal law enforcement.

Recently, the Supreme Court examined the issue of buyers’ clubs in Conant v. Oakland Cannabis Buyers’ Cooperative.[14][229] The court unanimously ruled that there is no medical necessity defence to the Controlled Substances Act’s prohibitions on manufacturing and distributing marijuana. Because the CSA classifies marijuana as a Schedule I drug, marijuana has been deemed to have no medical benefits. While the decision in Conant does not render state laws regarding medical marijuana inoperative, it does enhance the federal government’s ability to prosecute under the CSA in all states. That said, federal enforcement efforts have not, thus far, targeted individuals who possess or cultivate small amounts for medical use. Only the buyers’ clubs (also known as "compassion clubs") have been targeted.

In respect of the following chart, it should be noted that the quantity of marijuana a patient may possess varies from state to state. The provisions exempting caregivers from criminal liability may also vary.