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Why Does the U.S. Continue to Punish Drug Addiction as a Crime?

Written by Gerard Bullen | Edited By Editorial Team

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In today’s society, drug addiction and crime are often seen as being intrinsically linked in some way – if not identical.

 

Sadly, virtually every form of media – news articles, the latest films, political speeches, social media, and other sources of public “information” – are filled with language that associates and often equates an addiction to drugs with criminal behavior, and even violence, street gangs, and incarceration.

 

Medical science and addiction experts have long held that being addicted isn’t a criminal act.

 

Drug addiction is a substance use disorder, to give it its correct term. It’s a classified medical condition, and is defined as “a chronic, relapsing brain disorder.”

 

Just as importantly, drug addiction doesn’t need a criminal court and an 8-by-10 cell, it needs a clinic, and it doesn’t need a jail sentence, it needs a period of professional treatment.

 

However, looking at both our U.S. federal laws and the laws that individual U.S. states impose themselves, punishment seems to be the mandatory penalty for those suffering from one of these medical disorders.

 

We ask: Could there be a better way forward?

 

However, before we attempt to answer that question, it’s important to understand all the relevant facts about America’s historical and current stance on addiction and crime.

 

IMPORTANT: Obviously, drug traffickers, drug dealers, the criminal organizations that organize and run the drug trade who do so with little or no thought for their actual victims, and those who harm others under the influence of substances – they are a completely different story to what is being discussed here.

 

This article is about the countless thousands who are arrested for simple drug possession in the U.S., and how society could perhaps be better served by measures such as compulsory treatment and drug rehab.

 

How Does the U.S. Penalize Drug Addiction?

 

The majority of drug arrests are made by local state police. However, anyone arrested for a drug crime can be charged with either – a state or a federal offense.

 

Certain drugs, such as heroin, other illicit opioids, cocaine, and methamphetamine are illegal at both the state and federal level and can be charged as a state or federal crime.

 

Criminalizing drug addiction

 

The easiest way for an individual to be facing federal drug charges is to be arrested by a federal officer. This could be the result of something like smoking marijuana on national land, like a national park, to actually being picked up by a member of the Drug Enforcement Agency (DEA).

 

Other people can be charged with a federal drug crime because someone else informed them. It is often the case that those facing drug charges may get lenient by identifying other people involved in the drug trade.

 

Alternatively, people can face federal charges because of decisions made in private by state and federal prosecutors.

 

Regardless, the federal criminal system is notorious for the severity of its mandatory minimum sentences for the possession of even a small amount of drugs.

 

U.S. Federal Drug Laws

 

U.S. Federal Drug Laws state the possession, use, or distribution of illegal drugs is prohibited. There are strict penalties for drug convictions, including mandatory prison terms for many offenses.

 

Penalties increase significantly where the use of illicit drugs results in death or serious bodily injury.

What is the Federal Controlled Substance Act (CSA) of 1970?

The Controlled Substances Act (CSA) is the legal statute establishing federal U.S. drug policy through the regulation of certain substances, such as their manufacture, importation, possession, use, and distribution, and places each into 1 of 5 schedules (I – V).

 

This placement is based upon the substance’s medical use, the potential for abuse, and safety or dependence liability. Additionally, the CSA provides a mechanism for substances to be controlled (added to or transferred between schedules) or decontrolled (removed from control). 

 

The following factors are required to be considered for the scheduling of all substances:

  • Actual or relative potential for abuse
  • Scientific evidence of its pharmacological effect (if known)
  • The state of current scientific knowledge regarding the drug or other substance
  • History and current pattern of abuse
  • Scope, duration, and significance of abuse
  • What risk, if any, there is to public health
  • Psychic or physiological dependence liability, and
  • Whether the substance is an immediate precursor of a substance already controlled
  • First Conviction: Federal Penalties

    The following guide, although not comprehensive, is an overview of federal penalties for first convictions. All penalties are increased for any subsequent drug conviction.

     

    1. Denial of Federal Benefits (under Title 21 U.S. Code # 862)

    • Federal drug conviction can result in the loss of federal benefits, including school loans, grants, scholarships, contracts, and licenses.
    • Drug trafficking convictions are given harsher penalties and denial of benefits lasts for up to 5 years for a first conviction.
    • Convictions for possession can result in the denial for up to one year for a first conviction and up to five years for subsequent convictions.

     

    2. Forfeiture of Personal Property and Real Estate (under Title 21 U.S. Code #853)

    • Any person convicted of a federal drug offense punishable by more than one year in prison shall forfeit to the United States any personal or real property related to the violation, including houses, cars, and other personal belongings.”
    • Additionally, even though you are not yet convicted, your property is seized immediately on arrest.

     

    3. Federal Drug Trafficking Penalties (under Title 21 U.S. Code 841)

     

    Mandatory penalties for federal drug trafficking, which include prison terms and significant fines, vary depending on the drug concerned and the amount.

     

    The table below provides an idea of this sliding scale. However, it should be remembered that subsequent convictions are twice as severe.

     

    In the event of death or serious bodily injury resulting from the use of a controlled substance which has been illegally distributed, the person convicted on federal charges of distributing the substance faces a mandatory life sentence and fines ranging up to $8 million.

     

    Substance

    Amount

    Penalty: First Conviction


    Heroin


    1 kg or more


    Prison: not less than 10 years, not more than life

    Fine: up to $4 million


    Cocaine


    5 kg or more


    Crack Cocaine


    50 gm or more


    Methamphetamine


    100 gm or more


    PCP


    100 gm or more


    LSD


    10 gm or more


    Marijuana


    1,000 kg or more


    N-Phenyl-N-propanamide


    400 gm or more


    Heroin


    100–999 gm


    Prison: not less than 5 years, not more than 40 years

    Fine: up to $2 million


    Cocaine


    500–4,999 gm


    Crack Cocaine


    5–49 gm


    Methamphetamine


    10–99 gm


    PCP


    10–99 gm


    LSD


    1–10 gm


    Marijuana


    100–1,000 kg


    N-Phenyl-N-propanamide


    40–399 gm


    Amphetamines


    any amount


    Prison: up to 3 years

    Fine: up to $250,000


    Barbiturates


    any amount


    Marijuana


    50–100 kg


    Prison: up to 20 years

    Fine: up to $1 million


    Hashish


    10–100 kg


    Hash Oil


    1–100 kg


    Flunitrazepam

    (Rohypnol, “roofies,” or “roaches”)


    1 gm


    Marijuana


    less than 50 kg


    Prison: up to 5 years

    Fine: up to $250,000


    Hashish


    less than 10 kg


    Hash Oil


    less than 1 kg


    Flunitrazepam

    (Rohypnol, “roofies,” or “roaches”)


    less than 30 mg

    Source: Boston University, MA.

     

    4. Federal Drug Possession Penalties

     

    • Persons convicted on federal charges of possessing any controlled substance face penalties of up to one year in prison and a mandatory fine of no less than $1,000 up to a maximum of $100,000
    • However, second convictions are punishable by not less than 15 days but not more than two years in prison and a minimum fine of $2,500
    • Subsequent convictions are punishable by not less than 90 days but not more than three years in prison and a minimum fine of $5,000

     

    Individual U.S. State Drug Laws

     

    Each U.S. state has its own individual laws regarding drug offenses, and these laws can be very different from one another.

     

    Because each state has its own statutory authorities, scheduling bodies, and controlled substance acts, they control their drug laws – up to a point.

    At any time, the federal authorities can step in and take over jurisdiction. However, the majority of drug offenses are handled at state level.

     

    Addiction and crime

     

    One Word Describes Arizona’s Drug Laws: Tough

     

    Arizona is a state particularly tough on all crime – with some of the strictest state laws and some of the harshest sentences anywhere in the U.S.

     

    In fact, the majority of the people behind bars in Arizona are imprisoned for non-violent offenses – in particular, for drug possession crimes, where if there is a victim involved, it’s usually themselves.

     

    In other words, guilty for simply suffering from substance use disorder.

     

    So why is Arizona so tough on crime, and, in many cases, regardless of the circumstances involved? The answer is two-fold.

     

    1. Arizona’s Truth-in-Sentencing (TIS) Laws

     

    Passed in 1993-1994 during the height of the “get tough on crime” political movement, TIS Laws became a nationwide policy resulting from the failed War on Drugs. 

     

    The laws require that all prisoners in Arizona must serve at least 85 percent of their sentences before they can be eligible for release. 

     

    However, unlike nearly every other state in the U.S. that has since repealed these laws as being outdated and ineffective, Arizona has not – the 85% rule still applies.

     

    2. Judicial Discretion

     

    The second factor also stems from reforms to reduce crime from the same era, removing any and all discretion away from judges to make case-by-case determinations about whether someone belongs in prison or not. 

     

    Instead, the judge had no other options available – he or she must send the offender to prison, even in those cases where everybody agrees that prison is not appropriate.

     

    As a result, judges all around Arizona were forced for many years to send non-violent, low-level offenders to prison and for longer and longer sentences.

     

    However, a recently passed piece of state legislation – the Arizona Judicial Discretion Act (2021) – does now provide a level of discretion to judges, as long as strict criteria is adhered to.

     

    Considering that the prison option is becoming increasingly expensive, the recent reform will undoubtedly assist the next budget of the Arizona state government. 

     

    Since 1983, the prison custody population in Arizona has increased by 507%. In 2018, there were 41,794 people in the Arizona prison system. The latest figures still show more than 37,700 people in the “care” of the prison system.

     

    The department’s current budget now exceeds $1.2 billion a year – more than 10% of every dollar to run state government.

     

    How is Drug Possession in Arizona Punished?

     

    Arizona law prohibits a person from knowingly possessing or using illegal drugs. If a police officer discovers someone under the influence or being near an illegal drug, that individual will face felony drug possession charges.

     

    As with most other states, the drug possession penalties in Arizona depend on the type of substance found, along with prior criminal history.

     

    Prop 200: The Minimization or Suspension of Prison Sentencing for Minor Drug Offenses

     

    Furthermore, regardless of its national “tough on crime” image, Arizona has a vital piece of legal regulation known as Proposition (or Prop) 200.

     

    In 1996, Arizona voters were given the opportunity to vote on Prop 200, which was proposed by the state’s medical community, and called for the minimization or even suspension of jail time for minor drug offenses. Needless to say, it passed the vote.

     

    Prop 200 means that if you are charged with a non-violent minor drug offense in Arizona, you may be eligible for a minimized sentence.

     

    The primary purpose of Arizona Prop 200 is to get non-violent drug offenders into treatment programs and probationary situations, versus mandatory jail or prison time. It is meant for first or second-time, non-violent offenders.

     

    However, there are a few exclusionary situations within Prop 200, making an offender ineligible for consideration:

     

    • Prior violent drug offenses exclude Prop 200 eligibility
    • Manufacturing or selling drugs excludes Prop 200 eligibility

    Since its introduction, Arizona’s Prop 200 has enabled many minor drug offenders in the state to receive professional treatment for their drug addiction.

     

    Addiction and crime

     

    U.S. Drug Policy: The War on Drugs (1971-2020)

     

    If there is one policy (and one phrase) that epitomizes the U.S. approach to illicit drugs and substance addiction over the last 50 years, it is this: “The War on Drugs.”

     

    The term was popularized by the U.S. media in 1971 after then-President Richard Nixon famously announced the beginning of his “War on Drugs,” having declared that drug abuse was “public enemy number one.”

     

    Nixon immediately raised federal funding for both the military and the police.

     

    Since 1971, the U.S., while fighting its war, the nation has witnessed a number of drug epidemics – heroin in the early 70s, cocaine in the 1980s, and opioids since the 1990s.

     

    Now there’s one more for the list, and one far more lethal – fentanyl

     

    Only yesterday, Wednesday, November 17, 2021, the CDC announced that over 100,000 Americans – an absolutely unprecedented rate of mortality – had died from a drug overdose in just 12 months, following the first COVID-19 state and city lockdowns and the introduction of social distancing seen in 2020.

     

    The exact total number – believed to be 100,036 – is higher than the number of U.S. fatalities caused annually by car accidents, gun violence, and the seasonal flu combined.

     

    Unsurprisingly, over 60% of these drug overdose fatalities involved synthetic opioid fentanyl.

     

    The U.S. War on Drugs: Facts & Stats

     

    According to a variety of sources, here are the most notable facts and statistics from the 50 years of the U.S. War on Drugs:

    • Over half a million people are incarcerated in the US on drug charges – more than all of Western Europe’s prisoners, on all criminal charges, combined
    • However, more than 80% (or four-fifths) of all drug-related arrests in the U.S. are for possession – not for sale
    • The US spent $1 trillion fighting the war on drugs
    • The price of heroin has dropped by 81% since the 1990s, while its purity increased by 60%
    • Additionally, the price of cocaine has dropped by 80%, and the price of cannabis has also dropped – by 86%; however, since the 1990s, cocaine’s purity has increased by 11%, and the purity of cannabis has increased by up to a massive 161%.
    • 80% of all globally produced opioids are consumed in the U.S., and 
    • 67% (or two-thirds) of U.S. citizens currently believe the focus should be on professional treatment, and not incarceration

     

    The End of The War on Drugs

     

    In December 2020, and very quietly, too, the final report from the congressionally-mandated Western Hemisphere Drug Policy Commission was published, and it called for much greater investment in substance addiction treatment and prevention, stating that it was impossible to control the supply of dangerous, potentially lethal drugs without reducing the actual demand for them.

     

    Arrested for drugs

     

    Notably, the report ends with a quote, spoken by representative Engel in May 2019: “It is long past time to take a fresh look at U.S. drug policy and make sure we have the best strategy moving forward.”

     

    Should We Continue the U.S. Policy of “Prison for Possession”?

     

    From a legal standpoint, there’s no doubt that the law is intentionally designed to criminalize drug users, including addicts.

     

    Being addicted itself may not be a crime, but using drugs is illegal, so addicts get punished by default.

     

    The real question is: “Does this kind of justice actually benefit U.S. society?

     

    Let’s look at a typical case study of a drug addict placed on probation – with the judicial instruction to either stay clean – or go straight to jail.

    Case Study #1: Punishment Can Stop Addiction Treatment

     

    Julie Eldred, from Acton, Massachusetts, and a chronic opioid addict for over 10 years, was given probation for theft, as she attempted to feed her drug habit.

     

    The judge ordered her to stay clean, so she immediately began treatment – an intensive all-day outpatient treatment program.

     

    She also began to take daily doses of Suboxone, a medication that can relieve opiate cravings. Sadly, she relapsed, and snorted a small quantity of fentanyl.

     

    11 days after her probation had begun, Eldred was given her first drug screening test – she duly failed, traces of the fentanyl still lingering in her system. 

     

    Within a matter of hours, she was placed in chains, underwent a strip search, and found herself in prison.

     

    The issue here is obvious:

    Eldred was punished for relapsing from a disease described medically as a “chronic, relapsing brain disorder” she had voluntarily begun treatment for. As soon as she was back in prison, obviously, that treatment stopped.

     

    Criminal charges for drugs

     

    Fortunately, after being ordered to a medium-security prison, where she spent 10 days without any drug counseling, much less the daily Suboxone, her lawyer found her a place in a professional residential drug rehab program.

     

    Addiction: Not a Crime, But Punishment is Normal

     

    No current U.S. law specifically criminalizes being addicted to a substance. However, that is not the reality of the consequences of substance addiction.

     

    For people struggling with addiction, the takeaway is clear:

     

    Although even the U.S. government admits that professional treatment can improve outcomes for those in the criminal justice system, even modern policies fall woefully short of doing the best for the person suffering from the substance use disorder (SUD).

     

    In other words, those who don’t want to be treated as criminals for their addiction problems may find that their best chances lie in seeking compassionate drug rehabilitation and professional recovery support on their own before the authorities step in.

     

    SpringBoard Recovery is a drug and alcohol rehab center located in Scottsdale (just outside Phoenix), Arizona, and we offer an accredited intensive outpatient drug treatment program, helping our clients successfully recover from a range of substance addictions.

     

    We accept most major health insurance coverage, and clients travel from all over the U.S. to receive their personalized treatment with us, with many staying in our on-site, substance-free Recovery Housing accommodation.

     

    External Sources:

  • National Institute on Drug Abuse (NIDA). Criminal Justice. June 2020. Available at DrugAbuse.gov.
  • American Progress. Ending the War on Drugs: By the Numbers. June 2018. Available at https://www.AmericanProgress.org.
  • Boston University. State and Federal Laws and Sanctions Concerning Drugs and Alcohol. 2021. Available at BU.edu.
  • U.S. Drug Enforcement Agency (DEA). Drug Policy. 2021. Available at DEA.gov.
  • U.S. Centers for Disease Control & Prevention (CDC). Drug Overdose Deaths in the U.S. Top 100,000 Annually. November 2021. Available at CDC.gov.
  • U.S. White House: Western Hemisphere Drug Policy Commission. Executive Summary. December 2020. Available at ForeignAffairs.House.gov.
  • NPR. Court To Rule On Whether Relapse By An Addicted Opioid User Should Be A Crime. October 2017. Available at NPR.org.

  • Author: Gerard Bullen

    Gerard has been writing exclusively for the U.S. substance addiction treatment industry for many years, providing a range of medically-reviewed work, including white papers, long-form, and short-form content articles, and blog posts for accredited addiction treatment centers. A member of the American Medical Writers Association, Gerard’s specific focus is substance addiction (an area that has impacted Gerard’s personal life in several ways), and he is particularly drawn to the topics of professional, evidence-based treatment, new and alternative therapies, and enabling readers to find their own sustainable, long-term recovery. Gerard lives and works in Maryland, U.S., he’s happily married, and a proud father. His interests include hiking with the family, reading fiction (from the classics to virtually all of the current NYT bestseller list), American and British film classics, and his beloved dogs, Toby and Coco, both rescued from the local pound.

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