Volume 18.1

Fall 2020


The Tools at Hand: Surveillance Innovations and the Shifting Role of Federal Law Enforcement in Drug Control

Although enforcement is a key aspect of any drug prohibition scheme, changes in enforcement capabilities frequently occur independently of efforts by policymakers to manage the sometimes-conflicting public health and law enforcement components of drug policy. Since the passage of the Controlled Substances Act (“CSA”) in 1970, the surveillance tools available to law enforcement officers investigating narcotics crimes have become exponentially more powerful...


Mandatory Minimum Entrenchment and the Controlled Substances Act

Since their enactment in the mid-1980s, mandatory minimum sentencing provisions have been a prominent feature of the Controlled Substances Act. Observers argue that these mandatory minimum provisions generate unjustifiably harsh sentences for many federal criminal defendants convicted of drug offenses and significantly contribute to racial inequality in the federal criminal system...


Preemption Up in Smoke: Should States Be Allowed a Voice in Scheduling Under the Controlled Substances Act?

Fifty years ago, a Democratic Congress and a Republican White House—led by a President who would face the threat of impeachment—produced notable laws addressing public health, worker safety, and environmental protections. One of the laws produced in that era, the Controlled Substances Act (CSA),2 has shaped drug policy and criminal justice over the last fifty years...


Reconsidering Federal Marijuana Regulation

The Controlled Substances Act (CSA) prohibits the cultivation and distribution of marijuana by placing it in a category (Schedule I) reserved for drugs that are unhelpful and dangerous. The CSA has remained unchanged since its birth, but numerous states have changed their penal code and now allow the sale of marijuana for medical or recreational purposes...


The Bureaucratic Afterlife of the Controlled Substances Act

Fifty years after its enactment, it is clear that in key respects, the original aims of the Controlled Substances Act, and the larger statutory scheme of which it was a part, have not been realized. Intended to reduce demand through investments in treatment and prevention programs, demand-reduction expenditures instead trailed supply-reduction expenditures for decades...


Goodbye Marijuana Schedule 1—Welcome to a Post-Legalization World

Marijuana has been a Schedule I controlled substance under the Controlled Substances Act (CSA) for fifty years. However, the tide has turned, thirty-three states and Washington D.C. have legalized marijuana for either recreational and/or medical use, and it is likely that marijuana will eventually be removed as a Schedule I drug and become legal at the federal level as well.


The Complex Interplay Between the Controlled Substances Act and the Gun Control Act

Federal narcotics policy and firearms regulation intersect at several points. One of these junctures is 18 U.S.C. §922(g)(3), which incorporates the Controlled Substances Act (CSA) by reference and thereby prohibits violators of the CSA from possessing a firearm. This statutory intersection results in more than 14,200 individuals per year failing a background check for gun purchases, and more than 600 convictions per year for possession of guns by drug users...


Making Drug-Related Deportability 1914 Again? How a Strict “Categorical Approach” to the CSA Would Eliminate Unpredictable Agency Interpretation of the Immigration and Nationality Act

The Controlled Substance Act (“CSA”) of 1970 serves as a near midpoint for considering a century of drug regulation, dating to the Harrison Narcotic Tax Act (1914), the now-quaint first federal step in this field, i.e. of taxing the sale of (but not outright criminalizing) cocaine and opium. The early cases construing the Harrison Act are similarly anachronistic...


The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction

While state drug law reform is moving apace, federal drug law reform has moved much more slowly. Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years. But Congress has not acted...


The Changing Role of the American Prosecutor

I’ve been researching and writing about prosecutors for a couple of years now, partly because I didn’t agree with some of the writing that was out there. Very smart people were missing some of the complexity of the role of the prosecutor. The other thing that pushed me in this direction is that it has become an interesting time to be a prosecutor. The perception of the prosecutor position is changing dramatically...