The crime of drug possession in America has been under scrutiny recently. Citizens are concerned about the best way to handle punishment for violations of this law. Currently drug possession can be punished by a jail sentence. The length of the jail sentence can vary and typically depends on the type of drug and which jurisdiction the violator is caught in. People who use drugs are often addicted and physically dependent on continued use. The current method of incarceration in America is punitive based. The issue of drug use should be looked at from a health perspective. European countries including Switzerland and Portugal have decriminalized drug possession to some degree with success. The results have been positive, when drug users were helped with treatment and not jail time health statistics and drug related crime statistics improved.
Drug laws in America can be confusing. Penalties for the possession, use, or distribution of drugs can vary from state to state. Also, marijuana is legal in some states but not others. Despite the positive attention it has received marijuana is still illegal at the federal level. Ultimately the federal laws supersede any state law. State laws can be stricter than the federal law. However, state laws can never be more lenient. This is known as the supremacy clause of the U.S Constitution. Currently nine states have legalized or decriminalized the use of Marijuana. This puts these states at odds with the Federal Government.
In America drug possession arrests account for a sizable portion of the overall number of total arrests every year. According to the Uniform Crime Report from 2015 there were 1,488,707 arrests for drug crimes. 1,249,025 of those arrests or just under 84 percent were for possession charges. The remaining 16 percent were for distribution or manufacturing charges. Even more startling is that of the total amount of drug arrests in 2015 just over 643,000 thousand of them were for marijuana related offenses. Persons Arrested. (2016, May 05). Retrieved from https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/persons-arrested/persons-arrested
The crime of drug possession in Massachusetts is charged when a person is shown to illegally possess a controlled substance. A suspect must have the physical drug in their possession to be charged, you cannot be charged with possession if it is suspected you ingested the drug prior to contact with police, unless a reliable witness comes forward and accuses someone of ingestion prior to police arrival. Being under the influence of an illegal drug is not a chargeable offense, unless you are operating a motor vehicle. Law enforcement will determine if the elements of the drug possession charge are present before charging a person with drug
possession. If the suspect knowingly possessed a drug without a lawful reason they can be charged. Most often a lawful reason to possess a drug is a prescription from a doctor.
In Massachusetts Law Enforcement Officers are taught there are two types of possession. Direct possession and constructive possession. Direct possession is the most common. This is when a person has the drug in their physical control. For example, in your pocket, wallet, or hand bag. Constructive possession is less common but still occurs daily during police encounters. A person does not have to be found with the drugs on their person or in their direct control to be charged. If the drugs are found in the back seat of a car or thrown on the ground behind a park bench where the person is stopped, they can still be charged with possession.
Individual drugs are broken down into classification levels. Essentially, they are ranked on the level of benefits they have in the medical world and their perceived level of abuse and addiction. At the federal level the Controlled Substances Act of 1970 created a classification system. The scheduling system breaks drugs down into five groups. Schedule 1 drugs are the most dangerous. There is no accepted medical application for them. Schedule 1 drugs include Heroin, LSD, Ecstasy, GHB, MDMA, and Marijuana. Schedule 2 drugs are still classified as dangerous but have been used under medical supervision for treatment of various illnesses. These drugs include Methadone, Adderall, Ritalin, Fentanyl, Codeine, and Morphine. Schedule 3 drugs are viewed as less likely to be abused. This includes Vicodin, Ketamine, and various anabolic steroids. Schedule 4 drugs include many anxiety medications including Xanax,
Clonazepam, and Lorazepam. Schedule 5 drugs are viewed as least likely to be abused and include prescription cough medications containing codeine.
The chapter of law in Massachusetts that deals with drugs is MGL 94C. Specific drug crimes are then further broken down into sections. Massachusetts also has a scheduling system for specific drugs which is similar to the federal system but with some key differences. Class A is the most dangerous and involves heroin. However, marijuana is not included. Class B is most commonly used for cocaine but also includes popular painkillers like Percocet and Fentanyl which has become widely known over the past few years for its use as a cutting agent with heroin. Class C covers hallucinogens and synthetic marijuana known as K2 which has also become popular in the area recently. Class D covers Marijuana which was recently decriminalized. Class E covers all other remaining prescription drugs not covered under other classes.
Drug Possession is related to other drug crimes including possession with intent to distribute, and trafficking. A possession with intent to distribute charge will be applied when certain criteria are met. The quantity of drugs present, if there are more drugs than would be typically used for personal consumption. Also, a lack of items that are used to ingest to the drug is considered. The street value of the drugs matters, if it is a two-hundred-dollar single sack of cocaine or a large amount valued in the thousands. The manner in which the drug is packaged matters also. A comparable amount of cocaine in one bag might be charged with simple possession, if it were broken down into multiple bags it can now be charged with intent to distribute. The presence of large amounts of cash, packaging material, scales, or a firearm would escalate a possession charge into a possession with intent to distribute charge.
Trafficking charges are serious and have the potential for significant penalties. Trafficking in Marijuana requires a person to be caught with a minimum of fifty pounds and can be penalized by a term of no less than two and a half years in a state prison. Trafficking in cocaine requires 18 grams and can be penalized by a punishment of no less than two years in a state prison. Trafficking in Heroin requires 18 grams and a person can be punished by a term of no less than three and a half years in state prison. Higher thresholds of each drug will raise the minimum prison sentence.
Often people who are addicted to drugs will be involved in crimes to support their habit. Or they commit crimes because they are not in a normal state of mind while under the influence. The Bureau of Justice statistics collected data in 2008 from victims of various crimes. Victims were asked if they perceived their attacker to be under the influence during the crime. Twenty three percent of assault victims, thirty percent of rape victims, and twenty three percent of robbery victims believed their attacker was under the influence. A similar survey was run by the Bureau of Justice statistics in 2004. Seventeen percent of state prisoners and eighteen percent of federal prisoners reported that they committed their offense to support a drug habit. Dorsey, T (2008, December) Drug and Crime Facts retrieved from https://www.bjs.gov/content/pub/pdf/dcf.pdf
According to the FBI Uniform Crime Report drug arrests in general seem to be holding steady or slightly increasing. This is interesting in a time when the general mood of the country seems to be trending towards winding the war on drugs down. The 2016 UCR statistics show that there were 1,572,579 total arrests for drugs compared to 1,488,707 total arrests in 2015. However, for 2016 the numbers were not broken down to show how many were arrested for
simple possession. In 2015 1,249,025 or just under 84 percent of arrests were for possession. This is however a significant decrease from 2007 when 1,841,182 people were arrested for all drug related crimes and 1,581,975 were arrested for simple possession. 2016 Crime in the United States retrieved from https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016
A 2014 survey coordinated by the Pew Research center discovered that 67% of adult Americans favored a treatment-based approach to drug users rather than putting them in jail. However, today in America our state and federal prisons operate in a punitive manner. The deterrence theory best describes the current approach towards prison policy. Prior to the war on drugs prisons attempted to reform and rehabilitate inmates. At the time the belief was that a rehabilitated offender could re-enter society and contribute. Prison populations exploded in the 1980s and as the war on drugs escalated a rehabilitative approach was view as impractical. According to the deterrence theory people will not commit crimes because they know they will be punished swiftly and severely if they do. Unfortunately for advocates of the punitive system the statistics say otherwise. According to the sentencing project currently there are 2.2 million people in our federal, state, and local jails. This is a five hundred percent increase since the war in drugs began in the early 1980s. According to the Bureau of Justice statistics in 2015 state prisons held 44,700 people whose most serious charge was simple possession. The punishments have become harsher, but it has not deterred people from using drugs. Doherty et all (2014 ) Americas New Drug Policy Landscape http://assets.pewresearch.org/wp-content/uploads/sites/5/legacy-pdf/04-02-14%20Drug%20Policy%20Release.pdf
Drugs were not always illegal in America. In fact, through the first one hundred years of our nation citizens were free to consume opium and cocaine freely. It was even possible to order drug ingesting kits from the Sears catalogue. The first anti-drug laws did not appear until the late 19th century. These laws were racist in their nature, they were not intended to prevent people from harming themselves with dangerous substances. The laws were a way to control certain races of people that the government viewed in a negative way. The first were the anti-opium laws in the 1870s that were directed at the Chinese immigrants on the west coast. Then came the anti-marijuana laws that were directed at the black community in the early 1900s, and then later Mexican immigrants.
The first major legislation banning the distribution of opium and cocaine in America was the Harrison Narcotic Act of 1914. This act made the use of these drugs illegal unless under the supervision of a doctor. No other major anti-drug laws were passed until the Controlled Substances Act of 1970. This act created the drug scheduling system we used today and created the Drug Enforcement Agency. During this time the American war in Vietnam had reached its peak. There were concerns that many American Servicemen were coming home addicted to heroin that was plentiful in Southeast Asia. News stories of drug addicted soldiers were reaching American households via their television sets in the new age of mass media. Patten, D. (2016) The Mass Incarceration of Nations and the Global War on Drugs: Comparing the United States Domestic and Foreign Drug Policies
By the 1980s the anti-drug atmosphere had reached a fever pitch. Cocaine and later crack cocaine were affecting every major American city. With the election of Ronald Reagan there was a significant escalation of the drug war which had first been declared by President Nixon in the
early 1970s. First Lady Nancy Reagan became the public face of the just say no campaign which intended to educate children on the dangers of drugs. The campaign has since been criticized for its simplistic approach to drug addiction. Lilienfield, Arkowitz (2014, January) “Why Just Say No Doesn’t Work” https://www.scientificamerican.com/article/why-just-say-no-doesnt-work/
One of the most significant milestones of President Reagan’s approach to drug use was the passage of the 1986 Anti-Drug Abuse Act. The act provided funding for new prisons and drug education. The most significant part of the act established mandatory minimum sentences for certain drug offenses. Mandatory minimum sentences would be triggered by a specific weight of a drug or the possession of a firearm. These mandatory minimum sentences combined with harsher penalties for crack cocaine when compared to powdered cocaine ensured these new prisons would be full of minorities who were hardest hit by the crack epidemic. Possession of over 5 grams of crack cocaine would trigger a mandatory minimum sentence of 5 years. While a powder cocaine offense would require 100 times that amount for the same penalty. The disparity in penalties for crack cocaine compared to powder cocaine was not addressed until the passage of the fair sentencing act of 2010. This act lowered the amount of crack cocaine necessary to require a mandatory federal sentence when compared to powdered cocaine from a 100:1 ratio to an 18:1 ratio. Because of these mandatory minimums the prison population exploded. There were 40,900 people spread across American federal and state prisons in 1980 for drug offenses, by 2015 there were 464,595. The financial costs for the war on drugs are extreme. The United States spends about 50 billion dollars per year fighting the war on drugs. Sentencing Project Trends in U.S Corrections https://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf
The War on Drugs has always been viewed as a problem that comes from other countries. Large scale production of illegal drugs is next to impossible in the United States. Other countries, primarily Central and South American countries have stepped in to fill the drug production void over the years. In response the American government has expanded the drug war to these countries, offering financial and military assistance to governments that assist in counter drug operations. Columbia and Mexico are two of the more well-known countries that have been involved in the drug trade. Though they are not the only ones. Counter drug operations do have success taking down drug lords. Pablo Escobar and “El Chapo” are two of the popular drug lords that were taken down. However, in poor countries there will always be another kingpin that emerges. The profits are too high to resist, especially in these poor countries. Often the drug cartels have more money and power than the local governments. The war on drugs has only seemed to raise the profits for drug cartels. Jahangir Et al. (2011, June) War on Drugs: Report of the Global Commission on Drug Policy.
There are examples of countries across the globe that have enacted some type of drug decriminalization policies with success. The list includes Switzerland, The Netherlands, and Portugal. It was realized that drug abuse is a medical issue that has effects on the criminal justice system. Arresting addicts and putting them in jail did nothing to address the associated public health issues and related crime rates associated with drug use. The labeling theory of crime best describes this situation. Drug users were labeled as “junkies” that were unable to be rehabilitated. Medical professionals began to understand that there were often many issues associated with drug abuse including mental or social issues. Positive results were achieved as drug users stopped being labeled and received treatment.
Switzerland began medically prescribing heroin to addicted users under medical supervision in the 1980s. The results were positive. It reduced the reliance of users on street heroin and as a result the market for street heroin shrank. Also, the number of heroin addicts registering with medical officials in 1990 was 850 by 2005 it was only 150. These countries also enacted programs to lower the transmission rates of HIV which is high among intravenous drug users. Free syringe programs and testing facilities were implemented. Switzerland has reported a less than 5 % rate of HIV infection among intravenous drug users. America which has implemented some syringe programs but at a much later date than Switzerland has reported about a 16 % rate among the same population. Russia which offers no such programs reports about a 38 % rate of HIV infection among known users. Jahangir Et al. (2011, June) War on Drugs: Report of the Global Commission on Drug Policy.
Portugal has arguably done the most out of all nations to decriminalize all drug use. By the 1990s Portugal was experiencing incredible rates of drug use among its citizens. One percent of the entire population was estimated to be addicted to heroin. On July 1st, 2001 the Portuguese Government decriminalized drug use. If someone was caught with under a ten-day supply of any drug they could face a variety of administrative sanctions. Drug amounts that total over a ten-day supply are treated as distribution amounts and are still treated criminally. Opponents argued that the results would be disastrous. It was feared that removing penalties would encourage drug use. Almost 17 years later the results have been positive.
One of the biggest hurdles proponents of the new law faced was the social stigma attached to drug use. Portugal is a traditional country and overcoming that barrier would be difficult. The biggest step was moving the responsibility for the drug crisis from the Ministry of
Justice to the Ministry of Health, recognizing the medical aspect of drug addiction. In 1990 the Portuguese government had 47 reports of intravenous drug users living with AIDS, by 1997 that number had increased to 590. Portugal sought to simultaneously reform their drug laws and provide resources for treatment. Under the new law users caught with personal amounts would be referred to Commissions for Dissuasion of Drug Addiction, also known as CDTSs. These commissions were made up of three professionals from diverse backgrounds. Lawyers, Social Workers, and Medical Professionals. The panel evaluates each case and then decides for the best course of action collaboratively. Hughes, Stevens (2010). What Can We Learn from The Portuguese Decriminalization of Illicit Drugs?
The results of the innovative approach to drug use have been encouraging. The number of drug offenders being arrested, processed through the courts, and ultimately ending up in jail has been significantly reduced. About 14,000 people were arrested for drug offenses in 2000. That number has now dropped to an average of 5,000 offenders per year. This has lowered the burden and financial costs on the court system and prison population. Drug related crime was also reported to drop. When comparing statistics from 1999 to those from 2004 it was discovered that thefts from homes and business had dropped by 8 and 10 percent. Drug seizures have also been up, possibly a benefit of Police being able to concentrate resources on drug interdiction rather than possession arrests. Portugal has long been a point of entry for drugs into Europe. When comparing the period of 1995-1999 to 2000-2004 the number of drugs seized by Portuguese Police increased by 499 percent. Oddly enough the price of drugs on the street dropped from pre-law change levels. In 2001 1 gram of heroin was just over $50 and by 2008 it had dropped to $33. The story was the same for ecstasy which cost just $6 in 2001 and just under $3 in 2008.
Hughes, Stevens (2010). What Can We Learn from The Portuguese Decriminalization of Illicit Drugs?
The Portuguese government has most likely saved money from changing their approach to drug possession charges. While the financial savings for the criminal justice system have been important the real improvements have been in the public health arena. In 1999 the number of drug related deaths hit its highest point with about 350 deaths reported. That number dropped to about 150 by 2004. The number of known drug users in treatment rose from 23,654 in 1998 to 38,532 by 2008. Finally, the rate of new HIV infections also dropped from 1,016 reported cases in 2001 to 56 in 2014. For comparison there were about 14,000 prescription opioid related deaths in America in 2014. These are significant improvements attained by concentrating resources for drug abuse in the public health area and not dealing with drug use in a criminal manner. The lower rates of HIV alone make the program justifiable. Stevens (2012, December) Portuguese Drug Policy http://bit.ly/Z2O01V
Fortunately for any country that is contemplating reforming their drug laws Portugal has laid out a rough blue print. Some critics that were initially wary of decriminalizing drugs feared that drug use would increase, and they were partially correct. Portugal did experience a small uptick in drug use among juveniles immediately after the law was changed. However, this could be for multiple reasons. First drug use could have in fact increased. Or as the social stigma attached to drug use decreased with the new law so did the fear of admitting to drug use. It is entirely possible that drug usage did not increase, only people were more comfortable with admitting it.
Convincing people that their way of thinking is outdated and incorrect is difficult. Entire generations of people have been brought up being taught that drugs are bad and that the people who use them are losers. It is a fact that drugs are bad and harmful to your health. However, most people do not set out in life fall into the trap of drug abuse. Drug abuse effects people of different social classes differently. Lack of education about drugs or growing up in a poor environment where drug use is prevalent has deep effects on a person in their early stages. It is essential for young people to be educated on the dangers of drug abuse and to understand that drug addiction is a disease.
A government should be concerned with improving the lives of their citizens. The criminal justice system is a component which is entrusted with protecting citizens. The courts and jails all have their respective place in functioning society. However, a functioning public health system is also an essential component. These systems should all work together in harmony. Drug users often do affect society in a negative way, typically by committing crimes to support their habit. Society needs to step back and understand why this happens. This problem is best addressed in a health-oriented manner, not a punitive one. Putting a drug user in jail does nothing to address the root problem.
As Portugal has shown drug decriminalization and rehabilitation efforts for users can be successful. The current war on drugs continues to remove drug kingpins and drug lords from the streets only to see them quickly replaced. It does not concentrate on social issues. Why people use drugs, or why poor countries are so popular for drug traffickers. It is time to end the punitive approach to people who use drugs and concentrate on rehabilitating them. To understand the
damage the current Opioid epidemic is causing one must take a short ride to the area of New Market Square in Boston also known as Methadone mile to see for themselves. The people afflicted with the disease of drug addiction need treatment, not punishment. Unfortunately, the process to decriminalize drug use will take time to show positive results. Most politicians are too afraid to make such drastic changes without seeing immediate results.
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Thoumi, F 2012. “Vulnerable Societies: Why Antidrug Policies Fail, why there is a Need for Reforms and Why They are Unlikely to be Implemented” Substance Use & Misuse.
Hughes, Stevens 2010. “What Can We Learn from the Portuguese Decriminalization of Illicit Drugs? National Drug and Alcohol Research Center.
Bjerk, D 2017. “Mandatory Minimum Policy Reform and the Sentencing of Crack Cocaine Defendants: An Analysis of the Fair Sentencing Act” Journal of Empirical Legal Studies.
Banbury Et all 2016. “Portugal’s 2001 Drugs Liberalsation Policy: A UK Service Provider’s Perspective on the Psychoactive Substances Act. London Metropolitan University.
Lilienfeld, S. O. (2014, January 01). Why “Just Say No” Doesn’t Work. Retrieved from https://www.scientificamerican.com/article/why-just-say-no-doesnt-work/
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