Laws in every state and at the federal level prohibit or regulate the possession, manufacture, and sale of certain substances or drugs, from methamphetamine and cocaine to marijuana and codeine. Some drugs (like heroin) are always illegal, while other drugs (like fentanyl) have legal uses. Why is this the case? And who decides?
This article will cover the basics of drug laws and drug crimes in the United States, including how and who determines a drug's legal and illegal uses. Read on to learn more or use the following links to jump to a topic of interest:
Federal and state laws determine the legality (or not) of a drug based on its medical uses and potential for abuse, safety, and dependency.
In the 1970s, the federal government created a tiered system, under the Controlled Substances Act, that organizes drugs into five "schedules"—Schedules I to V. The most dangerous drugs fall under Schedule I and the least dangerous are in Schedule V.
The government assigns each drug a schedule. A drug goes into Schedule I if the government considers it to have no medical uses and a high potential for abuse or harm. Schedule II drugs are considered to have medical uses but still carry a high potential for abuse. Drugs with a moderate potential for abuse go into Schedule III, and so on down to Schedule V.
States have their own drug laws, but many follow the federal schedules for most drug classifications. Some notable exceptions are classifications for marijuana and certain psychedelic drugs. For instance, the federal government still considers marijuana a Schedule I drug, but many states have either taken it out of their schedules or classified it differently. Some states also use different classifications for psychedelic drugs that show potential for certain medical treatments.
With the exception of Schedule I drugs (which are deemed to have no medical use), a person can legally possess and use Schedule II to V drugs with a valid prescription. Possession of these same drugs without a prescription, though, is a crime, as is not taking the drug as prescribed.
For example, amphetamines are used to treat attention deficit disorder, barbiturates help treat anxiety, and fentanyl is used for anesthesia. But unprescribed or unsupervised use of these substances (and many others) is considered a crime.
Here are examples of various drugs and their placement in the federal drug schedules. Schedule II, III, IV, and V drugs are legal with a valid prescription.
Schedule I drugs are considered to have no medical use and a high potential for abuse. Under federal law, these drugs are always illegal (meaning a prescription isn't an option). Some examples of Schedule I drugs include heroin, LSD, MDMA (ecstasy), and marijuana.
Schedule II drugs have an accepted medical use but are considered dangerous and highly addictive. While these drugs are available by prescription, they are highly regulated, such as oxycodone, fentanyl, Adderall, meth, and cocaine.
Schedule III drugs have a low to moderate potential for abuse. Examples include Tylenol with codeine, ketamine, steroids, and testosterone.
Schedule IV drugs have a low potential for both abuse and addiction. Examples of Schedule I drugs include Xanax, Valium, and Ambien.
Schedule V drugs have the lowest potential for abuse and often include cough suppressant preparations with low amounts of codeine.
In both the federal and state criminal legal systems, most drug cases stem from charges of possession, manufacturing, or trafficking of controlled substances. Below you'll find a brief overview of these offenses, as well as an explanation of some key terms related to drug crimes.
Controlled substance is the legal term for drugs. When a federal or state government classifies a certain substance as "controlled," it means that the use and distribution of the substance are governed by law.
As a drug charge, "distribution" usually means that a person is accused of selling, delivering, or providing controlled substances illegally. This charge is often used if someone tries to sell drugs to an undercover officer. Trafficking generally refers to the illegal sale or distribution of a controlled substance. Despite the name, trafficking has less to do with whether the drugs cross state lines and more to do with the amount of drugs involved.
Under federal and state drug laws, the government can charge a person for playing a part in the cultivation or manufacture of a controlled substance. Cultivation includes growing, possessing, or producing naturally occurring elements in order to make illegal controlled substances, such as poppy or marijuana plants. A person can also be charged for producing or creating illegal controlled substances through chemical processes or in a laboratory. Substances created this way include LSD, cocaine, and methamphetamine.
The most common drug charge—especially in arrests made under local drug laws—involves possession of a controlled substance. Generally, for a possession conviction, the government prosecutor must prove that the accused person:
Charges for simple possession are often less serious than charges for possession with an intent to distribute. The difference here doesn't necessarily turn on an actual intent to distribute but rather on the amount of the substance found in the defendant's possession. Smaller amounts suggest the possession is for personal use only, whereas larger amounts suggest possession with an intent to sell.
A possession charge can be based on actual or "constructive" possession of a controlled substance. Constructive possession means that even if the defendant doesn't actually have the drugs on their person (in a pocket, for example), a possession charge is still possible if the defendant had access to and control over the place where the drugs were found (a locker, for example). The theory of constructive possession is often used when illegal drugs are found in a car during a traffic stop.
In many states, it's also illegal to possess paraphernalia associated with drug use, such as syringes, cocaine pipes, bongs, and scales. In fact, being found in possession of these objects—even without any actual drugs—may be enough for a person to be charged with a crime.
For decades, lawmakers at the federal, state, and local levels have all stepped in to regulate the use, abuse, manufacture, and sale of drugs. When these laws conflict, federal law typically controls and trumps state and local laws. But, as we're seeing with marijuana and psilocybin, sometimes the feds are willing to look the other way.
Most low-level drug crimes are handled at the local and state levels. These crimes often include possession offenses, sales or manufacturing of small quantities, and drug offenses committed near schools and other vulnerable places. This isn't to say state prosecutors and police won't go after the kingpins; it's more to say federal prosecutors are unlikely to go after the drug addict. Federal agencies and law enforcement tend to focus more on drug traffickers and large-scale operations, but their jurisdiction extends to all drug crimes.
Federal and state drug schedules are fairly consistent. But their penalties tend to be much different. Each state and the federal government has its own penalties for drug crimes, which vary by the type of offense (possession, sale, manufacturing) and the amount of drugs involved.
Many low-level possession offenses carry misdemeanor penalties, punishable by jail time of a year or less. The federal government classifies first-time drug possession offenses as misdemeanors.
Some states offer diversion for first-time possession offenses. Diversion allows offenders to maintain a clean criminal record by pleading guilty and then completing a substance abuse program and not committing additional offenses. If the defendant successfully completes diversion, the judge may vacate the guilty plea, dismiss the case, and potentially seal the record.
Sales, trafficking, and manufacturing offenses will typically carry felony penalties, which vary widely. Many states penalize more serious drug offenses by the individual type of drug and the amount involved. For example, in one state, it could be a 30-year felony to sell more than 10 grams of heroin and, in another, it's a 15-year felony. Under federal law, this crime carries a maximum 20-year sentence, but if serious harm or death results, the punishment is 20 years to life in prison. Some states primarily group penalties by schedule rather than each individual drug, while others use a combination of select drugs and schedules to dole out penalties.
State and federal laws also enhance drug sentences based on a defendant's criminal history of drug convictions, where the offense happened (such as a no-drug zone), and whether firearms were involved, among other factors. Selling or even giving drugs to a minor will likely come with an enhancement in most states.
The most common defense to a drug charge—especially drug possession charges—is arguing that police conducted an illegal search or seizure that led to finding the drugs. For instance, say police pulled the defendant over for a traffic violation and search the trunk for drugs on a whim. The defendant can ask the judge to exclude the drugs from evidence in the criminal case based on a Fourth Amendment violation. In most drug cases, the prosecution won't have a case without evidence of the drugs.
Other defense strategies include:
Winning on any of these arguments could lead to an acquittal or reduction of the charges.
If you've been arrested and charged with a drug crime, talk to a criminal defense attorney as soon as possible. Having legal representation is crucial to understanding the charges and protecting your legal rights.