The Federal Controlled Substances Act
Congress enacted the federal Controlled Substances Act to regulate access to drugs, substances, and chemicals used to make drugs that have the potential for abuse and can create dangerous dependency. If the substance can affect condition or mood in a way that people would pursue, and the substance is dangerously addictive, federal law is likely to control access to it. And one way in which Congress controls access to the drug, substance, or chemical is to criminalize its unauthorized possession or delivery. The Controlled Substances Act makes unauthorized possession or delivery of a controlled substance a federal crime. Texas and other states have their own Controlled Substances Acts similar in form and content to the federal Act, meaning unauthorized possession or delivery could also result in charges for state crimes.
The federal Controlled Substances Act classifies drugs into five schedules. The drug's classification into Schedule I, II, III, IV, or V depends on the drug's dangerously addictive properties and whether the drug has a medically beneficial use. The more dangerously addictive the drug is, and the less beneficial use it has, the higher the schedule on which federal law will place it. Schedule I drugs have the greatest potential for dangerously addictive abuse and no medically accepted benefit. Schedule V drugs have the least potential for abuse and the greatest medically accepted use. The Drug Enforcement Administration publishes this alphabetical list of scheduled controlled substances. The list includes only the basic or parent chemical, not salts, isomers, esters, ethers, and derivatives that federal law may also define as a controlled substance.
Schedule Changes and Extensions
Scheduled drugs frequently change as drug makers come up with new products, sellers find new ways to market illegal drugs, and consumer tastes for illegal drugs change. A section of the Controlled Substances Act, 21 USC §811, authorizes the attorney general to follow a process to add drugs to the schedules or remove drugs from the schedules. Another section of the Controlled Substances Act, 21 USC §811(c), requires the attorney general to consider these factors when scheduling the drug:
(1) Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.
The attorney general works closely with both the Drug Enforcement Administration (DEA) and Food and Drug Administration (FDA) in classifying drugs. The Act's Section 811(h) permits the attorney general to temporarily place a drug on a schedule to avoid an imminent hazard to public safety.
A drug doesn't have to be on a schedule to result in a criminal charge under the Controlled Substances Act. The Act extends the reach of its criminal provisions to controlled substance analogues. Under 21 USC §802(32)(A), an analogue is a substance “the chemical structure of which is substantially similar to” a Schedule I or II controlled substance, has a substantially similar “stimulant, depressant, or hallucinogenic effect….” Know the scheduled drugs, but watch for changes to the schedules, and watch for analogues.
The Definition for Schedule I Drugs
Congress has provided a straightforward definition for Schedule I drugs, substances, or chemicals, which have no currently accepted medical use but at the same time have a high potential for abuse. The Controlled Substances Act's Section §812(b)(1) authorizes the attorney general to place a drug, substance, or chemical on Schedule I when:
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for the use of the drug or other substance under medical supervision.
The Act's Section §812(b) requires the attorney general to make these three findings before including a drug, substance, or chemical in Schedule I.
Best Known Schedule I Drugs
Schedule I drugs include some of the substances with which the public is most familiar, from media reports, film and television depictions, and government warnings about their public health impacts. Schedule I drugs include:
- Heroin, a potent opiate that users will often first sniff until growing tolerance, requires needle injection. Black tar heroin is also smokeable. Heroin influences the brain's production of endorphins and dopamine, giving pleasurable effects.
- Hallucinogens like LSD and PCP, also going by the names Angel Dust, Killer Weed, and Zoom, psilocybin mushrooms, and mescaline or peyote drawn from a small cactus plant. Hallucinogens alter the user's perception of reality and can leave the impression of an out-of-body experience. Hallucinogens can also leave damaging physical and psychological effects.
- Methamphetamines like Molly or Ecstasy, popular at dance clubs and raves. Methamphetamines can produce feelings of well-being, euphoria, friendliness, and happiness, accentuating sense impressions. The high that methamphetamines produce can last a few hours, but the lows that follow can last days.
Schedule I and Marijuana
Marijuana (cannabis) is still a federal Schedule I drug. Although many states no longer treat marijuana with that high degree of regulation in their own Controlled Substances Acts, federal law preempts state law. State-by-state legalization of marijuana, whether for recreation or medicinal use, does not change federal law. You can still face federal criminal charges for marijuana possession or delivery. Congress is presently considering a bill that would decriminalize marijuana possession at the federal level. Congressional interest in decriminalization, and state legalization, may reduce current federal enforcement. But marijuana remains illegal, and producers, distributors, and users could still face federal charges.
Penalty Levels for Schedule I Drugs
Penalty levels are much higher for trafficking Schedule I drugs than for trafficking lower-schedule drugs. Federal penalty levels for trafficking in the Schedule I drugs heroin or LSD brings a minimum of five years up to forty years imprisonment and up to a $5 million fine. Trafficking in other Schedule II drugs brings up to twenty years imprisonment and up to a $1 million fine. Trafficking in marijuana brings penalties depending on the quantity, from as little as up to five years imprisonment and up to a $250,000 fine, or for the largest quantity of marijuana 1,000 kilograms or more, ten years to life imprisonment and up to a $10 million fine. Possession penalties for Schedule I drugs are like the penalties for possessing other scheduled drugs. Possession penalties range from up to one year or three years, and up to a $1,000 or $3,000 fine, depending on the specific drug and the offense number.
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