The United States judicial system is divided into state and federal courts. Whether a person accused of a drug-related crime is prosecuted in the federal or state criminal system depends on what laws were violated and the policies and procedures of each court system. Out of the millions of felony prosecutions filed each year, only about three percent are filed in the federal system. Often a particular criminal behavior will violate both a state and a federal law, and drug charges are no exception. In theory, the offender could be prosecuted in both systems for the same criminal activity, but in practice, this rarely happens. Most federal and state prosecutors divide up criminal charges based on the availability of resources, which statute most closely fits the criminal conduct, available punishment in each system, and each system’s policy considerations. If accused of a drug charge, it is crucial to contact an attorney who understands both systems through long experience.

The main federal law at issue in drug cases is the Drug Abuse Prevention and Control Act, which codified federal drug law into a uniform system. The Act classifies drugs into five categories, listed in schedules, and establishes regulatory requirements and penalties for the misuse of the drugs on each schedule. The Act also allows the United States Attorney General to add drugs to the schedules as necessary. Most states have drug laws that mirror the federal act, but the penalties may be less harsh and more flexible under state sentencing schemes than under the federal sentencing guidelines. A conviction of simple possession, for example, may receive a sentence under state law of drug treatment rather than jail time, and probation may be available to first-time offenders for even the more serious crimes. A lawyer experienced in criminal law can explain the differences between the state and federal court systems, both in general terms and with regard to drug charges in particular.

Sources of Federal Laws Relating to Drug Charges
Traditionally, defining crimes and providing for their prosecution and punishment has been a function of each state’s government. The federal government must act within the powers authorized by the Constitution when defining a federal crime. Congress generally uses its powers to tax, regulate commerce, and control the postal system when creating a federal crime. Thus, examples of federal crimes include mail fraud (postal power), anti-racketeering crimes in RICO (commerce power), and tax evasion (tax power), all of which could be implicated in more serious drug cases like a conspiracy or criminal enterprise case. Punishment for federal crimes is governed by the federal sentencing guidelines, which are based on a table incorporating two elements: the offense level and the offender’s prior criminal history. There are forty-three offense levels listed in the guidelines, with a base offense level established for each federal crime, plus calculations for increasing or decreasing the base level depending on individual characteristics of the crime.

The sentencing guidelines are constantly being scrutinized and revamped. In 2000, amendments were made to the guidelines in a number of areas including changes with regard to sentencing for methamphetamine possession. The guidelines have met with significant criticism for their imposition of “mandatory minimum” sentences. Many members of the public and some members of the judiciary feel as though the guidelines are too confining and do not allow for the appropriate consideration of factors and for the appropriate imposition of penalties.

Finally, much of criminal procedure is determined by the requirements of the Constitution. First and foremost, the Constitution requires that every person receive due process of law before his or her life or her life, liberty, or property can be taken. The Due Process Clause is the basis for the requirement that crimes be clearly defined and that the government must prove every element of the crime beyond a reasonable doubt. The Fourth Amendment protection against unreasonable searches and seizures is the basis of the exclusionary rule that keeps illegally seized evidence out of a criminal trial, and the Fifth Amendment’s ban on self-incrimination gives offenders the right to remain silent and to choose not to take the stand in their own defense. The Sixth Amendment guarantees the accused a right to an attorney who is allowed to be present at all stages of the criminal proceeding, including during a custodial police interview. And the Eighth Amendment bans cruel and unusual punishment and has been used to invalidate harsh sentences and prevent abuses of prisoners.

There are ninety-four federal district courts that have original jurisdiction over cases involving federal crimes as well as over various types of civil cases. Eleven courts of appeal hear appeals from the individual district courts. The United States Supreme Court can review cases from the federal courts of appeal and state supreme courts.

Drug crimes can be charged and prosecuted under either federal or state law, or, at least theoretically, both. An attorney experienced in criminal law can explain the intricacies of both judicial systems and zealously represent persons charged under either scheme in the appropriate court.