Legislation and substance abuse

DEFINITION: Substance abuse, also known as drug abuse, is characterized by overuse of and dependence on addictive substances, most often narcotic drugs or alcohol. Legislative issues affecting and addressing substance abuse and substance abusers are addressed at the federal, state, and local levels.

Scope of the Issue

About 20 percent of incarcerated individuals in the United States are imprisoned for drug-related crimes. According to the National Substance Abuse Index, the United States is the largest single market in the world for illegal drugs. Each US state has a responsibility to form regulations and laws to regulate drug use and substance abuse issues.

Federal law, however, may require states to take certain actions, such as tracking specific instances or reporting some types of infractions. Laws also generally distinguish between legal substances, such as alcohol, and illegal substances, including the unlawful use of prescription medication.

Each state chooses what federal laws to enact. Though there are thirty-nine federal laws pertaining to alcohol, for example, states are not bound by them. States also are required to follow the parameters of federal sentencing guidelines.

History of Substance Abuse Legislation

The criminalization of drugs in the United States began in 1914 with the Harrison Tax Act. Under this law, a tax of $1,000 was imposed for the nonmedical exchange of certain drugs; the law, however, pertained to tax evasion, not drug use or transfer.

In the early and middle decades of the twentieth century, several federal agencies had varying responsibilities and power in drug law enforcement. By the 1960s, most of this enforcement was in the hands of the Federal Bureau of Narcotics and the Bureau of Drug Abuse Control. Changing attitudes toward drug use during the 1960s and 1970s gradually led to increases in crime. Federal law enforcement agencies continued to evolve, as did legislation.

The US Congress passed the Controlled Substances Act, part of the 1970 Comprehensive Drug Abuse Prevention and Control Act, launching national substance control campaigns. The law consolidated legislation that regulates the manufacture and distribution of illicit substances—anabolic steroids, depressants, hallucinogens, narcotics, and stimulants—and some chemicals used to produce controlled substances. As public health threats from other substances became known, the act was amended. In its infancy, the Controlled Substances Act was enforced by the Bureau of Narcotics and Dangerous Drugs under the Department of Justice (DOJ).

In 1973, US President Richard M. Nixon created the Drug Enforcement Administration (DEA) within the DOJ to centralize efforts to combat substance abuse. Interagency rivalry and the necessity of coordinating investigation and prosecution efforts were among the reasons cited for the creation of the DEA. In announcing the DEA, Nixon declared the US global war on drugs.

As the war on drugs continued, investigators developed intelligence units and technology to aid agents. Laboratories were built and staffed to support the DEA’s efforts. The DEA has continued to monitor substance abuse developments and to respond to emerging trends. In 2011, for example, the DEA took action against three synthetic cathinones, widely called bath salts, following alarming and increasing reports of abuse of the substances. In the 2020s, the DEA's primary focus was Fentanyl, methamphetamine, and other synthetic, chemical-based opioids that were responsible for the deadliest drug trend in American history.

In a legislative experiment, Oregon’s Ballot Measure 110 decriminalized the possession of small amounts of illicit drugs like heroin, cocaine, and methamphetamine in November 2020. Measure 110 aimed to eliminate excessive drug arrests, address society’s underlying mental health and addiction issues, and improve the racial disparities in drug crime conviction rates. Rather than arresting individuals, they received a citation up to $100, which could be waived if they called the state addiction hotline to take an assessment for substance use disorder—attending treatment was not required for the court to waive the citation. However, out of 7,000 citations given between December 2020 and December 2023, only a few hundred capitalized on the program and called the hotline. Of those who did make the call, only a few agreed to receive treatment through the program. Additionally, unintentional overdose deaths increased after the law was passed, though this could also be attributed to the fentanyl crisis that plagued all states in the early 2020s. Oregon’s revenue from cannabis taxes and Measure 110 citations funded new, expanded, and improved recovery programs for individuals seeking help for their addiction. However, in September 2024, the experiment was deemed unsuccessful, and drug possession was recriminalized as a misdemeanor punishable by up to six months in jail.

Classification and Penalties

There are five classifications of controlled substances outlined in the Controlled Substances Act (CSA). Laws mandate the penalties for crimes of trafficking based in part on the classification, or schedule, of the drugs, and in some cases, as with trafficking marijuana, on the amount of drug confiscated. Penalties may include incarceration and fines. Each state sets its own penalties for the sale and possession of these substances within the federal guidelines.

Schedule I drugs are classified as substances with a high potential for abuse and no accepted medical use in the United States. The law requires that these drugs be tightly controlled, including mandating security for manufacturing and storing them and establishing quotas and licensing guidelines. Schedule I drugs include heroin, lysergic acid diethylamide (LSD), marijuana, peyote, methaqualone, and 3,4-methylenedioxymethamphetamine (ecstasy).

Schedule II substances may have accepted medical use and high potential for abuse; they also are likely to lead to severe physical or psychological dependence. Methadone, oxycodone, methamphetamine, fentanyl, Ritalin, Adderall, and cocaine are examples of Schedule II drugs.

Schedule III drugs include Tylenol with codeine, anabolic steroids, ketamine, and testosterone; these substances have less potential for abuse than Schedule I and II drugs, have accepted medical uses, and have some potential for dependence.

Schedule IV and V substances have low potential for abuse or dependence and have accepted medical uses. Valium, Ativan, Tramadol, and Xanax are among the Schedule IV drugs. Over-the-counter medicines, such as cough medicines with less than 200 milligrams of codeine per 100 milliliters (Robitussin AC), as well as Lomotil, Motofen, and Parepectolin, are examples of Schedule V drugs.

Much of the federal legislation regarding illegal substances pertains to alcohol, marijuana, cocaine, heroin, and methamphetamine. Persons who have been convicted of drug offenses may lose some federal benefits, such as grants and loans, and assistance, including supplemental nutrition assistance program (SNAP) and Social Security benefits. A college or university student receiving federal financial aid, for example, could lose the aid if convicted of a drug offense; the penalty could be temporary for a first offense of possession but permanent following multiple offenses.

The Controlled Substances Act also includes prohibitions and penalties for selling drugs to minors or near schools and other locations. Federal penalties are often more severe than those for crimes prosecuted at the state level. Local jurisdictions also may pass laws pertaining to drug possession and trafficking.

Legislative Issues

Substance abuse issues continue to arise as chemists develop new synthetic drugs and as others experiment with substances. Such issues often develop in other countries and eventually arrive in the United States. Drug enforcement authorities are continually monitoring and responding to developments.

Designer Drugs

One example of a developing issue is the collection of designer drugs commonly called bath salts, which were first seen in Europe. Hospitals and healthcare workers reported sharp increases in the number of patients being seen for the effects of bath salts beginning in 2009 and escalating in 2011. These designer drugs were being used for their psychoactive properties and produced effects similar to those of cocaine and MDMA (ecstasy).

Under the Comprehensive Crime Control Act of 1984, the US attorney general has the authority to temporarily place substances into Schedule I for up to one year. The DEA took action on bath salts in 2011; an order in October temporarily scheduled the bath salt substances into Schedule I because the drugs were deemed threats to public safety. The following year, President Barack Obama signed a bill into law that banned the active ingredients of many types of synthetic drugs, including bath salts. Though the immense popularity of traditional bath salts faded by 2015, they remained in use until they were replaced by the psychoactive substance called flakka, a synthetic drug similar to bath salts but even more dangerous.

Misuse of Prescription Medicine

Many people who misuse prescription medicine believe that these substances are safe because they are prescribed by doctors. Some people take a larger dose than was recommended because they believe more is better, while others take the medication to induce euphoria. The latter is an example of drug abuse.

Misuse and abuse of prescription medication can cause harm or death. According to the Substance Abuse and Mental Health Services Administration (SAMHSA), approximately 18 million people over age twelve in the United States have used prescription drugs for nonmedical purposes. Among the most commonly abused prescription drugs are opioids like OxyContin and Vicodin, stimulants like Adderall, and central nervous system depressants like Xanax and Valium.

Penalties for prescription drug abuse vary by state. North Carolina, for instance, mandates prison sentences of seventy to eighty-four months for anyone with more than 4 grams of opium, opium derivatives, or heroin. A person illegally in possession of six Vicodin pills, for example, would be in prison for up to seven years. Penalties increase with the amount of the drug a person has. In contrast, someone caught in North Carolina with more than 10 pounds but less than 50 pounds of marijuana could be prosecuted on trafficking charges and be sentenced to a minimum incarceration of twenty-five months, a maximum of thirty months, and a $5,000 fine.

Legislation to address the opioid crisis became a priority in the 2010s. Various states implemented laws intended to address the widespread prescription of opiates and the difficulty of accessing treatment. In 2018, the first major federal legislation on the subject, the Support for Patients and Communities Act, was signed. The legislation's effects were broad, including instituting penalties for drug manufacturers and distributors for overprescribing opioids, removing restrictions that made it more difficult for Medicare and Medicaid to pay for addiction treatment, encouraging more first responders to carry the overdose-reversing drug naloxone (Narcan), and creating a grant program for "Comprehensive Opioid Recovery Centers." However, critics of the act have argued that it does not commit the amount of funding that would be necessary to make a significant difference.

Prenatal Exposure

Each year, between 5 and 10 percent of girls and women aged fifteen to forty-four admit to using illicit drugs while pregnant or breastfeeding, and up to 20 percent admit to tobacco use. A number of states require healthcare professionals to screen infants for prenatal drug exposure, and thirty‐seven states go further, requiring that women suspected of prenatal substance abuse be reported to child protective services. Federal laws such as the Child Abuse Prevention and Treatment Act, however, regard such actions as referrals for treatment and investigation of child safety issues, not grounds for criminal prosecution.

Twenty‐four states classify substance abuse during pregnancy as child abuse. Some states also require actions including reporting parents to authorities. Responses to substance abuse also vary widely from state to state; some make treatment for pregnant women a priority, while others make furnishing drugs to pregnant women crimes. Women who have been charged criminally for prenatal actions often face charges of child endangerment or abuse, fetal murder or manslaughter, or illegal drug delivery to a minor (via umbilical cord), depending on the state.

Federal Alcohol Laws, State Discretion

All fifty states have adopted some federal alcohol laws, such as the law making it illegal to operate motor vehicles with a blood alcohol concentration (BAC) at or above 0.08. Most states have adopted the administrative license revocation law, which suspends licenses of those who fail the BAC test.

Several states have adopted federal law-making driving under the influence with a minor child in the vehicle a separate child endangerment offense or increased fines and longer jail terms. Another federal law mandating jail for a second offense of driving under the influence has been adopted by most states. By 1987, all fifty states had laws making age twenty-one the legal drinking age; national statistics indicated that per capita consumption of alcohol dropped considerably.

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