The federal government and all fifty states criminalize the manufacture and cultivation, possession, sale, and use of drugs categorized in a jurisdiction’s drug schedule, with exceptions for validly prescribed drugs and drugs involved in scientific or medical research. As discussed in "The Elements of a Crime", the government cannot criminalize the status of being a drug addict. 1 However, there is no constitutional impediment to punishing criminal acts involving controlled substances, even though it may be more difficult for an addict to control drug-related criminal behavior.
In most jurisdictions, the manufacture of scheduled drugs is a felony, 2 with a more severe penalty for the accompanying use of a firearm or the furtherance of a clandestine laboratory operation. 3 Cultivation of marijuana, which must b e done with general intent or knowingly, can be a misdemeanor or a felony, depending on the quantity cultivated. 4
Possession of scheduled drugs is typically graded based on the quantity possessed, the drug’s classification in the schedule, and whether or not the possession is for the purpose of distribution, with the penalties ranging from a misdemeanor for simple possession to a serious felony for possession with intent to sell. 5 As is discussed more fully in "The Elements of a Crime", possession can be actual, meaning the drug is located on or very near the defendant’s person, or constructive, meaning the drug is within the defendant’s control. 6 Constructive possession can b e joint, meaning between two or more. 7 Simple possession typically must be with general intent or knowingly, while possession for the purpose of distribution or sale must be with specific intent or purposely. 8 In many states, possession of marijuana is graded lower than possession of other scheduled drugs—even as low as an infraction if the quantity is less than one ounce. 9
The sale, distribution, or trafficking of scheduled drugs is generally a felony, with more severe penalties for drugs in a higher schedule, 10 the sale of larger quantities, 11 a sale by an adult to a minor, 12 or a sale near school grounds. 13
Scheduled drug use, also designated as being under the influence of a controlled substance, is typically a misdemeanor with more severe penalties for habitual offenders. 14
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