Drug Possession Penalties and Sentencing

Drug possession, or "possession of a controlled substance," is a serious crime with many possible penalties. Penalties may often depend on the amount of drugs in a person's possession. State law sets drug possession penalties such as potential jail time and fines. There may be mandatory penalties or sentencing presumptions based on the facts of the case.

There are many types of drug crimes, but this article focuses on drug possession for personal use, with no intent to sell.

Drug Schedule Basics

The seriousness of a drug is rated on a scale called a "schedule." It is regulated by the United States Drug Enforcement Administration (DEA) and the Controlled Substances Act.

This is not a complete list of every drug on each schedule, but it provides an example of the severity of each drug:

• Schedule I Drugs: Heroin, LSD, marijuana (many states are changing the severity of the penalty for cannabis), ecstasy, peyote, and methamphetamine
• Schedule II Drugs: Cocaine, Vicodin, oxycodone, fentanyl, PCP, Adderall, and Ritalin
• Schedule III Drugs: Tylenol with codeine, ketamine, testosterone, and anabolic steroids
• Schedule IV Drugs: Anxiety medications and sleeping medications such as Xanax, Valium, Ativan, Ambien
• Schedule V Drugs: Cough suppressants such as Robitussin AC or antidiarrheal medications such as Motofen

Simple Possession Basics

Having an illegal substance is called "simple possession." In a simple possession drug case, you need to have a small amount of an illegal drug:

• With you or available to you
• To consume it yourself
• With no intention to sell it or give it to anyone else

Simple Possession vs. Intent to Sell or Manufacturing Drugs

In contrast, possession with intent to distribute drugs, cultivate, or manufacture drugs carries much heavier penalties. In some states, the penalty for possession of drugs increases substantially solely on the weight of drugs found in a person's possession. Basically, the more weight of drugs in possession, the more the legal penalties mirror those for a person with a clear intent to distribute.

Depending on state and federal laws in play, multiple offenses of serious drug crimes can lead to life imprisonment.

Prosecutors sometimes offer plea deals to defendants who may be able to help them with a higher-priority investigation, perhaps leading to the arrest of an organized crime leader or major drug dealer.

Federal and State Drug Possession Penalties

In 1986, Federal law set mandatory minimum sentencing guidelines for drug offenses. The intent was to target high-level sellers. The federal effort followed state enactment of mandatory minimum penalties in the 1970s and 1980s in New York and elsewhere.

However, the guidelines also impacted low-level drug convictions. These fixed sentences are based on the following:

• The type of drug in the situation (heroin and methamphetamine have harsher penalties compared to marijuana, for example)
• The weight or amount of the drug
• The defendant's prior convictions

Many states followed the federal government's lead and created similar state mandatory minimum sentences for drug offenses. Although state reform efforts have modified these laws in recent years, the framework often remains.

For example, Kentucky's 2023 Revised Statute 218A.1415 makes possession of Schedule I or Schedule II controlled substances punishable by a three-year prison sentence. This penalty is with a presumption on a first offense for deferred prosecution or presumptive probation.

In Ohio, the sentencing framework for drug possession tracks the federal schedules. However, it also breaks out certain drugs for more individualized treatment. For example, in Ohio, possession of under 10 grams of cocaine is either a fifth-degree or fourth-degree felony. An offender may qualify for a drug court or other diversionary program. The maximum prison sentence is 18 months. If the offender possesses 10 or more grams of cocaine, the offense becomes a third-degree felony. The offender faces up to 5 years in prison and a presumption that a prison sentence is appropriate.

In contrast, California has some of the lightest sentences for the possession of drugs in the country.

Drug Courts: The Basics

A "drug court" is most often a state or local specialty court program for felony drug offenses. Drug courts may have their own individual eligibility and program criteria. For example, they may be limited to certain drug crimes like a drug possession charge. Eligibility may depend on a drug offender's criminal record. For example, an offender convicted of trafficking drugs will not normally be accepted. Referral to drug court may occur with a first or second offense.

Drug courts share many characteristics, including:

• Overseen by a judge
• Focus on treatment and rehabilitation instead of criminal charges
• Includes intensive case management or probation services
• Oversight by a multi-disciplinary team which includes law enforcement, social services, prosecutors, criminal defense attorneys, treatment professionals, and others
• Deferred or delayed prosecution with the possibility of dismissal of the drug crime upon successful program completion

Judges have substantial control over the operation of drug courts. For example, a drug offender who agrees to enter a drug court may:

• Have a year or more of drug treatment sessions
• Submit to random drug tests
• Appear regularly before the drug court judge
• May receive rewards or sanctions based on their progress

Failure of a drug test or other drug court rule can lead to progressive sanctions, such as a short jail stay. After attempts to rehabilitate through the program, a defendant can fail the program and be sentenced to prison or regular probation.

If the defendant is removed from the program, they may be convicted, and the crime stays on their record.

Drug court programs began at the adult criminal court. Today, there are juvenile drug court programs and similar specialty court programs that adopt the drug court model throughout the state and federal court systems.

Other Factors Influencing Drug Possession Penalties

As early as the 1970s, individual states experimented with mandatory sentencing and fines for drug offenses as part of the "war on drugs." The federal government expanded these efforts in the 1980s and 1990s. The number of incarcerated drug offenders rose dramatically. State and federal sentencing guidelines from that era continue to affect drug possession penalties to this day.

There has been an effort at federal and state levels to move away from mandatory minimum sentences. Studies questioned the effectiveness of incarceration as a deterrent for drug crime and the disproportionate effect on minority populations. Returning more sentencing discretion to courts is usually part of "criminal justice reform" initiatives.

In states where mandatory minimum sentences no longer exist or have been modified, other factors will still affect case sentencing. These varying factors can change drug possession penalties or influence how a court uses its discretion at sentencing. Courts will assess both "aggravating" factors (making the case more serious) and "mitigating" factors (making the case less serious).

Aggravating or Mitigating Factors

Courts can look to aggravating or mitigating factors in any given case when deciding a sentence. In any case, it is common to look at the following:

• A defendant's record
• The amount or weight of the drug
• The type of drug involved

If the possession conviction occurs near a school or daycare (typically within 1,000 feet), many states will increase the penalties for drug possession. Being near a school or in the presence of a child is an example of an aggravating factor.

On the other hand, some scenarios can make a case look more favorably on the defendant. Having no prior criminal record will mitigate (lower or reduce) the sentence. Evidence of stress or duress may also provide a reason for mitigation.

For example, someone might possess drugs because an abusive partner runs a drug operation and threatens them into participating. They might get a less severe drug charge because of the power dynamic related to the abuse. This relationship and abuse would be a mitigating factor.

State Drug Possession Laws

While the federal government has wide latitude to enforce federal drug laws, the federal Drug Enforcement Administration (DEA) tends to focus on interstate drug trafficking and more extensive operations. If an offender commits a federal drug trafficking or drug possession offense, the federal judge will utilize the federal drug sentencing guidelines.

The states handle the majority of simple drug possession offenses. State sentencing guidelines may vary significantly. Criminal justice reform has caused recent changes in a number of these statutes. Most states are ending mandatory minimums and giving more discretion back to judges. They can impose sentences ranging from fines, community service hours, and probation to substantial prison sentences as appropriate. Seek legal advice in your state to understand current penalties.

Changing State Laws for Marijuana Possession

State marijuana possession laws have undergone tremendous changes in recent years. Many states are legalizing marijuana use for medical or recreational purposes. Others are substantially decriminalizing cannabis possession.

There are still restrictions in the states that have legalized marijuana. For example, there may be no penalty if you possess under a certain amount, typically one ounce. Amounts over one ounce may lead to criminal charges and fines and penalties. These will vary depending on the amount and the circumstances in the case.

For instance, the Colorado law that went into effect in 2021 states that possession of marijuana by an adult (21 or over) of up to two ounces is not a crime. Adult possession of over two ounces of marijuana is a misdemeanor offense in Colorado. There is no adult felony marijuana offense.

There remains a tension between state law reforms related to marijuana and federal law, which still defines marijuana as a Schedule I controlled substance. Possession of marijuana remains illegal at the federal level.

At this time, federal law enforcement restraint has stopped federal prosecution for simple possession of marijuana. President Biden has called for the Department of Health and Human Services and the Department of Justice to review how marijuana is scheduled under the Drug Control Act.

Get Legal Help with Your Drug Possession Penalties and Sentencing Questions

Facing a drug charge is a scary experience. The penalties for drug possession vary in every state. Remember that the specific facts of your case will also significantly impact the penalties and outcome. Obtaining assistance in your defense can be essential to your case.

In some situations, an attorney can advocate for first-time offenders to attend drug treatment instead of other penalties.

Contact a skilled criminal defense attorney in your area to learn more and obtain assistance with your drug possession case.