Possession of any amount of illicit drugs, such as heroin, cocaine, methamphetamine, LSD, “club” drugs like ecstasy, and in some cases marijuana, remains illegal in the vast majority of US cities, counties, and states. It is also considered a federal crime. Laws vary in each jurisdiction, but depending on the amount of the drug found in one’s possession and how many times an individual has been found guilty of the crime, it can potentially land a person in prison for life.
Penalties for drug possession increased dramatically following the implementation of the War on Drugs in 1971 by President Nixon followed by a period of spiking drug use and visibility in the 1960s. The policies started by Nixon were widely expanded in the 1980s by President Reagan. Zero-tolerance policies and three-strike laws flourished under this administration, causing the number of persons incarcerated for nonviolent drug crimes in go from 50,000 in 1980 to 400,000 in 1997.
In recent years, people have started to look at drugs differently. Experts on drug addiction have widely pronounced the problem to be one of mental illness, not a weakness of character or some innate criminal quality. It’s been found that over the years, drug use has only increased under policies that focus on punishment and incarceration rather than treatment and rehabilitation. As cultural views on drug use shift, use and possession of certain drugs are slowly beginning to be decriminalized – particularly marijuana – and drug possession laws are becoming a bit less draconian.
Despite this, it’s very important for an individual suffering from an addiction disorder involving an illicit drug to become familiar with local drug possession laws, as even possession of a very small amount can land a person in jail. Addiction isn’t always taken into account during sentencing, and stopping all intake of a drug at once can be dangerous.
The Types of Drug Possession
Not all drug possession is defined in the same way. Penalties for the crime can depend on many factors, including how much of the drug a person possessed and what type of drug it was. Possession of prescription drugs is also illegal if the person possessing them does not have a valid prescription from a licensed medical professional. Penalties for this type of possession have increased over recent years due to a sharp spike in illegal prescription drug use. The 2011 National Survey on Drug Use and Health found that 52 million Americans over the age of 12 have engaged in nonmedical drug use at least once in their lifetimes.
Illicit and prescription drugs are federally classified in the US to be in one of five categories called Schedules that define how likely they are to be abused and whether they have any use in medical practice.
- Schedule I: The drugs in this category are considered to have no medical use and have a high potential for abuse. This includes heroin, GHB, LSD, and marijuana. The US Drug Enforcement Administration (DEA) is currently considering whether to downgrade marijuana due to increasing evidence of its medical applications.
- Schedule II: These are drugs with a high potential for abuse and addiction that have some accepted medical uses. They include cocaine, methamphetamine, opium, and highly controlled prescription medications like morphine and oxycodone.
- Schedule III: These drugs have a lower potential for abuse and may not be physically addictive while also having a wider range of medical application. Drugs in this category include anabolic steroids, ketamine, Vicodin, and certain products containing codeine.
- Schedule IV: This category contains mostly prescription medications that have a low potential for abuse but can become physically and psychologically addictive if abused. They include Xanax, Klonopin, Valium, and Ativan.
- Schedule V: These are medications that have a low potential for abuse. The substances in this category are mostly medications that contain small amounts of narcotics like codeine.
It’s important to note that despite marijuana’s current inclusion in the Schedule I category, many state and local laws make a distinction between it and other Schedule I drugs. For example, in the state of Pennsylvania, simple possession – a crime defined as the possession of an amount of a drug small enough to be for personal use only – is punishable by up to a year in prison and a fine of up to $5,000, or both for the first offense. However, possession of a small amount of marijuana will only get you up to 30 days in jail and/or a fine of up to $500 for the first offense.
If you’re found with an amount of an illicit drug that exceeds the amount considered to be simple possession, you can be charged with possession with intent to distribute (PWID). This charge assumes that due to the large amount of the substance, you could possibly be intending to sell it as a drug dealer. This is typically considered to be a felony and comes with a much more severe sentence. However, conviction rates for this charge appear to be falling, going from 13.4 percent in 2002 to 6.5 percent in 2007, according to a study done on drug possession in Connecticut.
In some states, simple possession and PWID are classified differently. For example, Florida’s drug possession laws classify the crime based on degree and whether it’s a misdemeanor or felony offense. First-degree misdemeanor possession is for those caught with 20 grams or less of marijuana or 3 grams or less of certain synthetic marijuana derivatives. First-degree felony possession is for individuals found in possession of 10 grams or more of certain hallucinogens like GHB and GBL as well as other drugs in the most severely controlled drug Schedules.
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Three-Strikes Laws and Mandatory Minimums
Three-strikes laws and mandatory minimum laws have both contributed to the sharp increase in the number of people in prison for drug offenses. Twenty-four states have some form of three-strikes laws that impose significantly harsher penalties for those who are found guilty of the same offense three times. The strictest of these laws can land a person in prison for life even on a conviction of simple possession of marijuana. Even if a person given a third strike is released, that individual will be labeled a “persistent offender,” which can have a serious impact on decisions involving punishments for other crimes or the possibility of early release.
These laws often correspond with mandatory minimum sentences, which make it so an individual found guilty of a certain crime or who has committed the same crime multiple times must be given at least a certain amount of time in prison regardless of the circumstances surrounding it. For example, on the federal level, the second offense of possession with intent to distribute will result in a mandatory minimum sentence of 20 years in prison.
Laws like these were created with the intent of deterring repeat or potential repeat offenders from committing additional crimes and to ensure that individuals convicted of certain crimes didn’t get light treatment due to corrupt judges or high-priced lawyers. However, they’ve come under fire for denying judges the right to make exceptions for special cases. With the rise in the use of marijuana for medical purposes, including the treatment of pain, seizures, nausea, and muscle control issues, there have been a number of cases in which people growing marijuana to treat their own health problems have been arrested, charged with PWID, and sentenced to many years in prison based on mandatory minimums.
Three-strikes laws have also resulted in a number of young people getting prison sentences and being marked as felons just for getting caught smoking a small amount of marijuana three times. Many people with addiction disorders have also been thrown into prison because they can’t stop taking the drug they’re addicted to instead of being treated for a mental illness that can’t be controlled by sheer force of will. This can lead to further trauma and more difficulty finding stable employment, only fueling the addiction. Additionally, a 2008 study found that treating people for substance addiction costs $20,000 less per person per year than incarcerating them.
Charges Related to Drug Possession
In many cases, there will be additional charges directly related to the possession of drugs that will increase the person’s sentence. There are also related crimes that individuals can be charged with even if they’re not directly in possession of an illicit substance.
A prime example of this includes drug paraphernalia charges. Paraphernalia includes any equipment, product, or material meant for the use, creation, or concealment of recreational drugs. In terms of the law, it must be proven that the item’s primary purpose was for one of these activities in order for a person to be convicted. For example, it’s often difficult to prove that a new, clean glass pipe is for drug use as it can be argued that it’s for tobacco use or simply a collectable. However, if drug residue can be found inside the pipe, this generally makes it much easier to convict a person on drug paraphernalia charges.
Not all states have laws against the possession of drug paraphernalia, but under federal law, it’s illegal to sell, offer to sell, mail, import, or export these items. Other states have specific laws against items related to the creation and distribution of drugs that fit under the paraphernalia category. These items include:
- Scales used to weight amounts of a drug
- Drug purity testing equipment
- Any substances or materials used to dilute an illicit drug
- Packaging like small baggies or balloons commonly used to sell individual doses
A recent study found that of all the drug investigations researched between 2009 and 2013, 14 percent were for possession of drug paraphernalia. These crimes are typically misdemeanors, though there may be exceptions in the case of large drug manufacturing operations or meth labs. In California, a charge of simple drug paraphernalia comes with a maximum sentence of six months in jail and a $1,000 fine.
Being in possession of a drug can even put the people around you at legal risk. If you live with someone who possesses large amounts of a drug or actively distributes a drug, you could be charged as being an accessory to the crime. People close to a drug dealer can even be charged with “conspiracy,” which can come with hefty sentences. This can happen when an individual allows a person to use a space that they own, such as a storage unit or trailer, and that person uses it to manufacture or distribute drugs. Even if the individual charged with conspiracy was ignorant of the drug-related activity, people have ended up spending decades in prison for this.
Dealing drugs to or around minors will also land people with additional charges or simply factor into sentencing. Giving or selling an intoxicant to a person under 18 or under 21 is a serious offense, even with legal substances like alcohol and tobacco. Being caught with drugs in a school zone is nearly guaranteed to get you a much lengthier jail or prison sentence than you would have received from possessing drugs in any other area.
Defenses against Possession Charges
Many drug possession cases are pretty cut and dry, but there may be circumstances in which possession wasn’t your fault or in which a defense can be mounted. It isn’t easy, however. At the federal level, the conviction rate for drug possession and other non-trafficking drug crimes is 87.5 percent.
It is possible to use an “unwitting possession” defense if you can prove that you didn’t know the drugs were in the same area as your person. For example, if you borrowed a friend’s car, got pulled over, and drugs were found in the glove compartment, you might be able to convince a judge that you didn’t know the drugs were there and therefore didn’t do anything wrong.
There are also multiple ways to evoke your Fourth Amendment rights against unlawful search and seizure. Generally, police officers cannot search your vehicle or person without cause. If they do so, any evidence they find is not permissible in court. This does not apply to any drugs in “plain view,” such as on the dashboard of your car. However, if you decline to give permission for an officer to search your trunk, there’s no plausible reason to suspect something illegal in said trunk, and the officer searches it anyway, that’s considered to be a violation of your constitutional rights, and the case is likely to be dismissed.
There’s also a difference between “actual possession” and “constructive possession.” Active possession means that the drug was on your person, such as in your pocket, in a bag or purse you were carrying, or in your luggage if the luggage is currently on your person. Constructive possession refers to a situation in which you don’t have physical contact with the drug or container that the drug is in, but you still know where they are and you are in control of them. This includes knowingly having them hidden in your home or vehicle.
This is important to keep in mind because in order to convict you of drug possession, it must be proven that you fit one of these categories. If you did not have knowledge of drugs in your home or car, or someone else had “control” of the substance, this may not count as possession. However, you could be accused of related crimes. It is possible to claim that an officer planted drugs on you during a search, but this is difficult to prove.
Avoiding Arrest for Possession
The best way to avoid being arrested for drug possession is to stop using illicit drugs. Unfortunately, this isn’t an easy option for the 23.5 million people in the US who are considered to have a substance use disorder. Withdrawal symptoms and cravings can make quitting use of an addictive substance incredibly difficult, especially for highly addictive drugs like heroin and cocaine. Unfortunately, the most addictive drugs are also the most highly controlled, and they carry stricter punishments for simple possession.
In order to avoid the life-altering event of arrest and conviction for drug possession, professional treatment may be the only option. There are thousands of addiction treatment centers across the US, and many of them offer options for making the withdrawal process easier, plus financing and low-cost or no-cost treatment for low-income individuals. There are also outpatient options for those with children and work responsibilities.
Though it can be a long and difficult process, until drug possession laws come into line with the current understanding of addiction as a disease, it’s best to do everything possible to avoid ending up in the legal system on drug charges. Beginning the healing process as soon as possible is the only surefire way to avoid being arrested and incarcerated for possessing drugs.