The simplest drug crime is possession of a controlled substance, like marijuana. In order to convict, a prosecutor must show that the accused did more than just touch the drug. One conviction was reversed when the defendant said that he had touched the heroin only long enough to throw it away. He had found it in a friend's pocket before taking him for emergency medical treatment.
Sometimes it is difficult to determine who has possession. Generally, police arrest everyone present in a room or automobile if illegal drugs are in plain sight. Decisions depend somewhat on the circumstances of each case.
A person arrested for possession of drugs may defend himself by showing that he had no knowledge of the drug or intent to possess it. A hitchhiker, for example, is not guilty of possession if he did not know that there were four bags of marijuana in the trunk of a car he was riding in. But it is no defense that the defendant had illegal phenobarbital when he thought he had illegal secobarbital, or that he had crack when he thought he had meth. It also is no defense to avoid knowledge deliberately.
Possession convictions may also depend on the amount of the drug involved. Some courts require more than a trace of the illegal drug. A little crust on a heroin spoon (a spoon used to hold the drug while it is being cooked over a flame) or the residue scraped from a marijuana pipe may not support a conviction unless there is a "usable amount."
The way in which the amount of a drug is measured depends on the law in each case. Some states measure the entire weight of whatever is seized. This is called the aggregate weight. For example, a drug pusher often buys one 360 ounce of heroin and rurns it into two ounces by "cutting," or diluting, it. Even though diluted by half, the aggregate weight is still two ounces. Pure weight is the total amount of the drug alone, excluding anything mixed with it. A pureweight law is highly unsatisfactory from a law-enforcement point of view. If a quarter-ounce of marijuana is baked into a pan of brownies, a chemist may be able to pick out all the marijuana bits, but when he weighs them, his measurement might be no more meaningful than an aggregate weight. Will the marijuana weigh more because it has absorbed moisrure from the brownies? Should this be subtracted? How much? Is it possible that the cocoa and flour have absorbed some of the chemicals from the marijuana? Should that be subtracted from the weight of the marijuana? How much? It is of little help to suggest that only the THC, the chief psychoactive ingredient in marijuana, be weighed. THC is difficult and expensive to isolate.
An obvious solution is to forget amount in drug offenses and to make possession of a controlled substance illegal in any amount. But making penalties based on amount was a response to public sentiment that if a small amount of the drug can do harm, a large amount can do more harm to more people. Idaho citizens wanted sellers punished more harshly than users.
Marijuana possession with intent to sell is usually a more serious crime in Idaho than simple possession. A court or jury may find that the defendant intended to sell because of what he did or said to possible customers. In some states a jury may presume that quantities greater than a certain amount would not be in the defendant's possession unless he intended to sell-he can defend himself only by giving a satisfactory explanation for having a large amount of the drug. In other states possession of huge amounts may be in itself a serious crime.
Depending on the law concerned, selling may include distributing a controlled substance in any of a variety of ways without a lawful prescription. It may not be necessary for money to change hands. The federal law prohibits distribution or delivery by anyone except an authorized person.
Many parents are frightened by the possibility that drugs may fall into the hands of young people who often lack the good judgment not to use them. Almost all states make the sale of illegal drugs to a minor a degree worse than the same offense would be otherwise-for example, from criminal sale in the third degree to criminal sale in the second degree. "Minors" usually means those under 21, but sometimes it means persons under 18. Sometimes selling to minors is criminal only if the seller is more than a certain number of years older than the buyer. In such a case, a 14- year-old who sold drugs to another 14-year-old would not be guilty of selling to a minor, although he might be guilty of a simple sale of narcotics.
Another selling offense is concerned with convicting big-time drug dealers. The federal act provides penalties of 25 years to life imprisonment for anyone who "engages in a continuing criminal enterprise."
A fairly frequent problem in enforcing criminal drug sale laws occurs when there is a mistake about the kind of drug sold. An undercover police officer may negotiate a purchase of thousands of dollars worth of heroin or cocaine, only to learn from the police lab that he has purchased crushed aspirin. If the seller believed that he was selling an illegal drug, he can still be convicted of an attempted sale. If he knew what he was selling was not an illegal drug and was just deceiving the undercover agent, he probably cannot be convicted, even for the attempt to sell. This situation is called a counterfeit sale and some states have solved the problem by making counterfeit sales a separate crime.
Another illegal sale problem is how much to prosecute. A person cannot be convicted of both possessing with intent to sell and selling the same batch of drugs. Possession is a lesser included offense in sale. This means that the larger crime of sale includes the lesser crime of possession. Sometimes a person can be convicted of more than one crime for the same act. In deciding whether the defendant can be convicted of the different crimes, courts may look at the purpose of each law.
A variety of laws in addition to those concerned with possession and sale have been enacted to control dangerous drugs. State and federal laws punish such actions as illegally importing drugs into the country, transporting drugs, distributing drugs on a forged prescription, and unprofessional conduct by a doctor in prescribing drugs. These laws are intended to catch those people contributing to the national drug problem who might otherwise slip through the enforcement net. Sometimes the person who is the target of an investigation has committed the crimes of possession or sale, but the prosecutor cannot make a good case. Then it may be effective to convict for one of his other roles in the distribution of drugs.
Some states have tried to control drug abuse by outlawing not only the drugs but also the paraphernalia-equipment or accessories associated with their use. Law enforcement officials were often frustrated to find paraphernalia in a drug user's possession but no drugs. No arrest could be made for possession of a drug that had already been used because the Supreme Court had said that this type of arrest punished a person for being a drug user, rather than for doing something illegal. To make an arrest possible in a situation where the police were sure there had been illegal drugs, some states made possession of paraphernalia illegal.
Because criminal laws must be very specific, the paraphernalia statutes often list the illegal items: hypodermic needles, cigarette papers, hash pipes, coke spoons, glassine envelopes, and so on. Enforcement of paraphernalia laws has been difficult. For one thing, most of these items could have a nondrug use, and secondly, users can often find a substitute for any item on an illegal paraphernalia list. A number of these laws have been declared unconstitutional.
Even so, many people believe that paraphernalia laws are useful. When everything except the drugs themselves can be sold openly, specialized stores, "head shops" appear. Many parents believe they glamorize drug use and pander to young people.
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