Effective Drug Control: Toward A New Legal Framework

III. CONTROLLING PSYCHOACTIVE SUBSTANCES:
THE CURRENT SYSTEM AND ALTERNATIVE MODELS
THE CURRENT SYSTEM OF DRUG CONTROL
The current legal framework for drug control is composed of three legal tiers:
international treaties; federal statutes and regulations; and state statutes and regulations.
The laws at each level function as an interlocking system intended to limit certain
medical uses of drugs, to prevent the diversion of certain drugs for “non-medical” uses
and to enforce the absolute prohibition of the use and sale of certain other drugs.
International Treaties
The United States is a party to three international treaties that provide the basic
legal framework for a worldwide system to control drugs that have been determined to
have a high potential for abuse. 354 The purpose of the treaties is to limit the use of drugs
to medical and scientific purposes only. 355
Most nations are signatories to the U.N. Conventions, which prohibit the use and
sale of the same drugs that are prohibited in the United States. 356 The U.N. conventions
are part of the large body of international law that is not “enforceable” in the traditional
sense, but signatories to the drug control treaties are subject to enormous diplomatic
pressure, particularly from the United States, not to enact national laws that depart from
the prohibition framework. The International Narcotics Control Board (INCB), an
independent body within the United Nations, serves more as a panel to monitor adherence
to the U.N. conventions rather than as an enforcement agency, but it often voices support
for or objection to drug policy developments around the world, consistent with prevailing
U.S. domestic and foreign drug policy interests. 357
U.S. Drug Control – Federal Preemption
The federal government regulates psychoactive substances under a series of
statutory schemes, mainly under Title 21 of the United States Code. These include the
Controlled Substances Act, the Federal Food, Drug and Cosmetic Act and the enabling
acts authorizing the Office of National Drug Control Policy and the Drug Enforcement
Administration. Other miscellaneous federal initiatives found throughout the U.S. Code
address drug use as it relates to other areas of law regulated by the federal government,
including enhanced penalties for use of prohibited drugs in federal prison 358 and federal
aid for state drug courts.
Controlled Substances Act
The Controlled Substances Act (CSA) 359 begins with congressional findings that
many drugs being controlled have a legitimate medical purpose, but that the illegal
importation, manufacture, distribution and possession and improper use have “a
substantial and detrimental effect on the health and general welfare of the American
people.” 360 The CSA authorizes the Attorney General to place controlled substances on a