Federal and State Drug Schedules

Federal criminal statutes targeting illegal drugs are part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, commonly known as the Controlled Substances Act (21 U.S.C. § 801, 2011). The states follow one of the three versions of the Uniform Controlled Substances Act (Uniform Controlled Substances Act, 2011), which was drafted by a commission striving for uniformity in state and federal laws. For the purpose of drug crimes, the states and the federal government categorize illegal drugs in drug schedules (21 U.S.C. § 812, 2011). The schedules generally focus on the harmful or addictive qualities of the drug, with Schedule I drugs being the most harmful or addictive; the remaining schedules reflect less harmful or addictive drugs, including drugs that are legal with a prescription (Minn. Stat. Ann. § 152.02, 2011).

Federal and State Drug Crimes

The federal government and all fifty states criminalize the manufacture and cultivation, possession, sale, and use of drugs categorized in a jurisdiction’s drug schedule, with exceptions for validly prescribed drugs and drugs involved in scientific or medical research. As discussed in Chapter 4 “The Elements of a Crime”, the government cannot criminalize the status of being a drug addict (Robinson v. California, 2011). However, there is no constitutional impediment to punishing criminal acts involving controlled substances, even though it may be more difficult for an addict to control drug-related criminal behavior.

In most jurisdictions, the manufacture of scheduled drugs is a felony (Ala. Code § 13A-12-217, 2011), with a more severe penalty for the accompanying use of a firearm or the furtherance of a clandestine laboratory operation (Ala. Code § 13A-12-218, 2011). Cultivation of marijuana, which must be done with general intent or knowingly, can be a misdemeanor or a felony, depending on the quantity cultivated (Ohio Rev. Code Ann. § 2925.04, 2011).

Possession of scheduled drugs is typically graded based on the quantity possessed, the drug’s classification in the schedule, and whether or not the possession is for the purpose of distribution, with the penalties ranging from a misdemeanor for simple possession to a serious felony for possession with intent to sell (Ohio Rev. Code Ann. § 2925.11, 2011). As is discussed more fully in Chapter 4 “The Elements of a Crime”, possession can be actual, meaning the drug is located on or very near the defendant’s person, or constructive, meaning the drug is within the defendant’s control (Connecticut Jury Instructions No. 2.11-1, 2010). Constructive possession can be joint, meaning between two or more (Connecticut Jury Instructions No. 2.11-1, 2010). Simple possession typically must be with general intent or knowingly, while possession for the purpose of distribution or sale must be with specific intent or purposely (People v. Parra, 2011). In many states, possession of marijuana is graded lower than possession of other scheduled drugs—even as low as an infraction if the quantity is less than one ounce (Cal. Health and Safety Code § 11357(b), 2011).

The sale, distribution, or trafficking of scheduled drugs is generally a felony, with more severe penalties for drugs in a higher schedule (N.C. Gen. Stat. § 90-95, 2011), the sale of larger quantities (Ala. Code § 13A-12-231, 2011), a sale by an adult to a minor (Ala. Code § 13A-12-215, 2011), or a sale near school grounds (Ala. Code § 13A-12-250, 2011).

Scheduled drug use, also designated as being under the influence of a controlled substance, is typically a misdemeanor with more severe penalties for habitual offenders (Cal. Health and Safety Code § 11550, 2011).

Modernization of Drug Crimes Statutes

Two new trends in state drug crimes statutes are the emphasis on rehabilitation for nonviolent drug offenders and the legalization of marijuana for medical use.

Modern statutes allow nonviolent drug offenders to go through a specialized drug court that typically sentences the offenders to probation and rehabilitation, rather than incarceration (Ariz. Rev. Stat. § 13-3422, 2011). Common offenses for drug courts are simple possession and use of drugs listed in a jurisdiction’s drug schedule (Ariz. Rev. Stat. § 13-3422, 2011). Typically, the drug court offender must participate in a rehabilitation program that includes counseling and detoxification within a specified time period (Tex. Penal Code § 469.001, 2011). During the rehabilitation, the offender is frequently drug tested to ensure compliance. If the drug offender tests positive, reoffends, or does not complete the program within the specified time limits, the offender will be found guilty of the original nonviolent drug offense and sentenced accordingly (Ariz. Rev. Stat. § 13-3422, 2011).

Legalization of marijuana for medical use is another modern statutory trend among the states. Currently, sixteen states and the District of Columbia legalize medical marijuana (Procon.org, 2011). The criteria under these statutes vary, but in general a qualified individual can gain a prescription for marijuana from a caregiver, usually a physician, and thereafter obtain, possess, and use a specified quantity of marijuana (Alaska Stat. §§ 17.37.010-17.37.070, 2011). In some states, limited cultivation is also permissible (Cal. Health and Safety Code §§ 11362.7-11362.83, 2011).

The legalization of marijuana for medical use presents an interesting constitutional dilemma because federal law lists marijuana as a Schedule 1 drug and does not permit its possession, use, or sale for medicinal purposes (21 U.S.C. § 812, 2011). Technically, the legalization of marijuana for medical use violates the Supremacy Clause in the federal Constitution, which Chapter 2 “The Legal System in the United States” and Chapter 3 “Constitutional Protections” discuss in detail. However, the US Supreme Court has not invalidated any state’s medical marijuana statutory scheme on this basis, although the Court has upheld federal Congress’s authority to prohibit the possession and use of small quantities of marijuana under the Federal Controlled Substances Act (Gonzales v. Raich, 2011) and has rejected a medical necessity exception for the possession and use of marijuana (U.S. v. Oakland Cannavis Buyer’s Cooperative, 2011).

Example of Crimes Involving Prostitution

Daniel approaches Penelope, a sixteen-year-old, as she wanders down the sidewalk. Daniel asks Penelope if she would like to earn a little extra cash. Penelope responds affirmatively, and Daniel asks her if she will have sexual intercourse with John (who is an adult) for one hundred and fifty dollars. Penelope eagerly agrees. Daniel walks Penelope over to the entrance of a motel where John is waiting. John and Penelope enter the motel, and John rents a room where they engage in sexual intercourse. Afterward, John pays Penelope the one hundred and fifty dollars. As Penelope leaves the motel, Daniel swiftly walks over, grabs Penelope by the wrist, and demands the one hundred and fifty dollars. Penelope protests, but Daniel twists her arm behind her back, and she grudgingly hands him the money. Daniel removes twenty dollars, hands it to Penelope, and informs her that it is her “share,” and if she wants more, she needs to engage in another act of sexual intercourse.

In this example, Penelope and John have probably committed prostitution, and Daniel has most likely committed pimping and pandering in many jurisdictions. When Penelope has sexual intercourse with John for one hundred and fifty dollars, she is engaging in sexual conduct for money with general intent or knowingly, which constitutes prostitution in most jurisdictions. When John has sexual intercourse with Penelope and thereafter pays her one hundred and fifty dollars, he is engaging in sexual conduct for money with general intent or knowingly, which is also generally criminal prostitution. Penelope is a juvenile, so John’s sentence may be enhanced and more severe than Penelope’s. When Daniel procures John and Penelope for the purpose of committing prostitution, he is most likely committing pandering. When Daniel takes money from Penelope with the general intent or knowingly that it was earned by prostitution, he is probably committing pimping. The use of force to obtain the money and Penelope’s age could enhance Daniel’s sentence for both crimes in many jurisdictions. Thus Penelope, John, and Daniel may be subject to prosecution for and conviction of the stated crimes of prostitution, pimping, and pandering in most jurisdictions.