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|Volume 3 - Public Policy Options|
Chapter 20 - Public Policy In Other Countries - US
The Controlled Substances Act
In 1970 the U.S. Congress enacted the federal Controlled Substances Act (the CSA)  pursuant to the federal authority to regulate interstate commerce. This Act repealed most of the earlier federal legislation, including the Harrison Act and the Marihuana Tax Act, and is the foundation of U.S. federal drug law today.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."
Many commentators have suggested that these laws were passed during a time of extreme anti-drug hysteria resulting from the introduction of crack cocaine. 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. In concluding that marijuana should remain in Schedule I, the Department of Justice considered eight factors:
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 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.
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.
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. 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.
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 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. 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."
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:
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. 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.
 Comprehensive Drug Abuse
Prevention and Control Act of 1970, Title II, 21 U.S.C., ss. 800‑966.
 Congress need merely
find that a class of activity affects interstate commerce to enact criminal
penalties; no proof is required that the conduct involved in a single
prosecution has an effect on commerce: see Ehrlich, Susan, "The
Increasing Federalization of Crime" (2000) 32 Ariz. St.L.J.825.
 See, for example,
Craig Reinarman and Harry G. Levine, eds., Crack in America: Demon Drugs and Social Justice, University of
California Press, September 1997. The organization Human Rights Watch in a May
2000 report on the United States referred to the phenomenon as a "moral
panic" (available online at www.hrw.org/reports/2000/usa).
 Department of Justice,
Drug Enforcement Agency, "Notice: Denial of Petition", April 18,
2001, in Vol. 66, No. 75 of the Federal Register, page 20037‑20076.
 Arkansas, California,
Colorado, Georgia, Hawaii, Illinois, Indiana, Louisiana, Michigan, Oklahoma,
South Carolina, South Dakota, Utah and the U.S. Virgin Islands.
 Congress has passed
various anti‑crime bills that include drug‑related provisions,
including the Crime Control Act of 1984 (P.L. 98‑473), the Anti‑Drug Abuse Act of 1986
(P.L. 99‑570), the Anti‑Drug
Abuse Act of 1988 (P.L. 100‑690), the Crime Control Act of 1990 (P.L. 101‑647) and the Violent Crime Control and Law Enforcement Act
of 1994 (P.L. 103‑322). Collectively, these Acts enhanced
drug-related penalties and provided new funding for drug control activities.
Charles Doyle, Drug Offences:
Maximum Fines and Terms of Imprisonment for Violation of the Federal Controlled
Substances Act and Related Laws, Library of Congress Congressional Research
Service, November 1, 2000.
 A second offence is one
committed after a prior conviction for any
felony drug offence under any
federal, state or foreign drug law.
 Distribution of a small
amount of marijuana for no remuneration is treated as simple possession, the
penalties for which are contained in the second chart.
 A prior conviction
includes conviction of any offence
under the Controlled Substances Act
or any State drug law.
 The Uniform Laws Annotated, Master Edition, Volume 9,
Parts II, III and IV, provides annotation materials for the adopting
states. Under the heading "General Statutory Note", those
jurisdictions that have based their drug legislation on the Uniform Act are stated to have
substantially adopted the major provisions of the Uniform Act, but the official text of the State Act "departs
from the official text in a such manner that the various instances of
substitution, omission, and additional material cannot be clearly indicated by
statutory notes." As such, it is recommended that recourse be had to the
individual State legislation for specific details for the individual CSA.
Another useful reference is Richard A. Leiter, ed., National Survey of State Laws, 3rd
Ed., Detroit: Gale Group, 1999, which, at pages 152‑188,
provides charts that set out specific offences and penalties for cocaine,
heroin and marijuana in all States.
 Appendix 2 of the report
by B. Dolin, op. cit., states
the main alternatives.
 No. 00‑151. Argued
March 28, 2001 – Decided May 14, 2001. Cited as: 532 U.S. __ (2001).
 An "affirmative
defence" requires the defendant to prove on a balance of probabilities
that he or she is in compliance with the statute.
 The "choice of
evils" deference refers to the defence of medical necessity. Long
recognized in common law, a defendant is provided the opportunity to prove in
court that his or her violation of the law was necessary to avert a greater
evil; the pain of a debilitating disease or condition in the case of medical
marijuana. Certain states, as noted in the chart, have codified the defence.
Schaffer Library of Drug Policy
Major Studies of Drug and Drug Policy
Marihuana, A Signal of Misunderstanding - The Report of the US National Commission on Marihuana and Drug Abuse
Licit and Illicit Drugs
Short History of the Marijuana Laws
The Drug Hang-Up
Congressional Transcripts of the Hearings for the Marihuana Tax Act of 1937
Frequently Asked Questions About Drugs
Basic Facts About the Drug War
Charts and Graphs about Drugs
Information on Alcohol
Guide to Heroin - Frequently Asked Questions About Heroin
LSD, Mescaline, and Psychedelics
Drugs and Driving
Children and Drugs
Drug Abuse Treatment Resource List
American Society for Action on Pain
Let Us Pay Taxes
Marijuana Business News
Reefer Madness Collection
Medical Marijuana Throughout History
Drug Legalization Debate
Legal History of American Marijuana Prohibition
Marijuana, the First 12,000 Years
DEA Ruling on Medical Marijuana
Legal References on Drugs
GAO Documents on Drugs
Response to the Drug Enforcement Agency
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