Alex Kreit (Thomas Jefferson School of Law) has posted Controlled Substances, Uncontrolled Law (Albany Government Law Review, Vol. 6, p. 331, 2013) on SSRN. Here is the abstract:
For more than forty years, the Controlled Substances Act (CSA) has served as the foundation for federal drug control. Since the law's enactment, drug policy in the United States has experienced significant changes. In the 1980s and 1990s we saw the rise of the war on drugs and the development of drug quantity-based mandatory minimum sentencing. Since the mid-1990s, the states and the federal government have battled over medical marijuana. There has been a rich and lively debate about each of these issues and many others — from the impact of drug enforcement on the Fourth Amendment to the link between race and the drug war. However, almost nothing has been written about the classification and regulatory provisions of the Controlled Substances Act. With the exception of the narrow question of marijuana's status as a Schedule I substance, the CSA's classification scheme rarely enters the policy or legal discussion. Somehow, the underpinnings of our current drug policy have slipped through the cracks.
In some ways, the inattention to the CSA's arcane regulatory structure is understandable. The details of the CSA's classification scheme would do little to inform any debate on the merits of drug prohibition. The federal government had already outlawed most of the substances prohibited by the CSA long before its passage. And, in any event, the CSA makes it illegal to distribute or possess any controlled substance for recreational use, regardless of its schedule. Likewise, most other major federal drug policy questions — from sentencing to budget allocation to racial disparities in enforcement — are only tangentially related to the CSA's administrative provisions.
Although an understanding of how the federal government classifies and regulates controlled substances may not have much relevance to many of the hot-button drug policy topics, it is still an incredibly worthy concern in its own right. This essay calls attention to this important but critically under-examined area of drug control by focusing on two key aspects of the CSA: classification and research.
Part I introduces the Controlled Substances Act. Part II analyzes the CSA's approach to scheduling, and argues that the CSA's open-ended classification scheme fails to adequately control the scheduling of substances and gives the Drug Enforcement Administration nearly unfettered discretion to decide how to classify a drug. Regardless of one's views on the wisdom of prohibition, the CSA's byzantine scheduling structure should concern anyone with an interest in having a predictable, uniform, science-based approach to drug regulation. Part III turns to the barriers to research the CSA imposes and highlights a strange feature of the CSA. Schedule I substances include both substances that show early (but unproven) promise as medicines and those that we already know have no medical value. Yet, all Schedule I substances are equally — and incredibly — difficult to research. Part IV concludes that it is time for Congress to revisit the administrative provisions of the CSA. Though not as glamorous as issues like the federal response to state marijuana legalization laws, there are compelling reasons to rethink the CSA's classification criteria and research restrictions for Schedule I drugs.