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This may seem like an obvious, of course, it is.

The problem is, it seems that, while US government prohibit possessing drugs, it doesn't prohibit using.

So drug usage is a bit like prostitution or online gambling. In some country, the act itself is legal but the acts around it are criminalized.

I look around.

There is no law that I know that prohibit using drugs.

If someone is caught and tests show that he uses drugs, he is not punished because using the drug is legal. If he is caught possessing drugs then he goes to jail.

I may be wrong.

Am I?

Why it is so is probably more suitable for political StackExchange.

Of course, anyone using a drug must have possessed the drug first before using it. I couldn't imagine anyone using a drug without possessing it. However, it seems that the law cannot put the 2+2 = 4 together.

If someone tested positive of using ganja, any jury will be convinced beyond a reasonable doubt that the person must have possessed ganja in the past.

Perhaps some law perspective on why possession, instead of usage, is illegal can be said too.

This question is mainly about whether the law is as I think it is and how it's actually applied.

Some research:

In the U.S., the penalty for illegal drug possession and sale can vary from a small fine to a prison sentence.

https://en.wikipedia.org/wiki/Prohibition_of_drugs

It doesn't say usage. I also cannot find anyone going to jail for "usage"

For comparisson

http://www.flevin.com/id/lgso/translations/JICA%20Mirror/english/4868_UU_35_2009_e.html

In Indonesian law article 127 says: (1) Every abusers:

a. Narcotics Category I for themselves shall be punished with imprisonment of 4 (four) years; b. Narcotics Category II for themselves shall be punished with imprisonment of 2 (two) years, and c. Narcotics of category III for themselves shall be punished with imprisonment of 1 (one) year.

That explicitly prohibit "usage". Of course, most users are not really abusers and are just casual users. However, I don't think the court think that way.

  • 2
    Why the downvote? Just show me the law that using the drug is illegal. I've been researching this a lot. In Indonesia we have such laws. Article 128 narcotic laws. I do not see similar laws in US. – user4951 Sep 5 '19 at 9:31
  • Accepted answer here might be relevant law.stackexchange.com/questions/3381/… – PulseJet Sep 5 '19 at 9:59
  • could be but not necessarily. It seems that the issue is not lack of evidence but the thing isn't really a crime in the first place. You don't go to jail for failing drug tests in US as far as I know. Not even in Indonesia you do. – user4951 Sep 5 '19 at 10:03
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    Sometimes people are slipped a Mickey Finn (en.wikipedia.org/wiki/Mickey_Finn_(drugs)), so to convict someone for use you would have to prove that they took the drug deliberately. By the time you have done that you probably have enough evidence to convict for possession anyway. – Paul Johnson Sep 5 '19 at 12:30
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    You can consume a drug without ever having possessed it. In some churches people consume wine during the Eucharist without touching the chalice with anything but their lips. – Thomas Sep 5 '19 at 14:53
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In the U.S., Law enforcement favors going after the distribution of narcotics over the use. Going after the users just means dealers will seek out new customers whereas going after dealers means eliminating the supply chain. And Law Enforcement would much rather have a dealer flip on a manufacturer at that. The bigger the fish they bring in, the more damage they can do to the supply chain.

The U.S. has recently been moving towards treating the use of illicit substances as a disease rather than an crime, especially when the use is tied to addiction. To this end, the current trend is to get the users to clinics that can specialize in breaking addiction rather than jailing a user. Prisons and jails do not have a strong track record for this, but they do have programs for substance abuse.

The U.S. also favors plea bargins rather than taking every case to trial. 90% of all legal cases are settled out of court with a negotiation between the prosecution and the defense. Usually this acts in a "you scratch my back" arrangement where the offender will plea to a lesser charge and in exchange, help the investigators find that bigger fish. This may be testifying against them or giving them the supplier or even acting as a mole. This also benifits the state as the prosecution doesn't have to pay for all the costs of arguing a case a trial. For example, if the cops bust a user, he will be charged with Possession, but they might drop charges if the user can name the dealer and will testify against him. If the cops bust the dealer, the dealer is charged with Possession (with intent to sell), but if he's low on the totem pole, they can ask him to name the supplier he gets his goods and testify against the supplier and in exchange, they drop the charge to Possession. They will be less inclined to bring this fact up, but Possession is easier to prove in court than Possession (With Intent to Sell) because the former requires finding drugs on the person and his property. The later needs to prove that the drugs were not for personal use but instead for distribution to others. Almost universally, anyone convicted on mere possession charges probably did something a lot worse. Law enforcement tends to charge as many crimes as possible... as long as they can prove guilt on one, they can put someone away for a while. Al Capone famously went to one of the most notorious prisons in the United States for Tax Evasion (a very white collared crime that typically results in fines and very minimum jail time. While we're on the subject, the IRS has a 98% conviction rate, and ties with Secret Service (the guys who protect the President) for most successful Federal Law Enforcement Agency, to give you an idea of where the priorities lie in the United States. All Federal Law Enforcement is ridiculously good, to the point that bringing charges against anyone is almost as good as saying they're guilty).

Another reason Use of drugs isn't pushed is that, well, producing that evidence is difficult. The common user bust is drinking and driving (since alcohol is legal in the U.S., use based crimes are the top level of enforcement. You legally cannot hold a firearm in the U.S. while drunk, even if you could do so while sober). A brethalizer is built to measure the amount of alcohol is in one's system and if it is over the limit for what is safe. Most illicit drug tests don't do this and rather look for chemicals in general and will ping if there's any trace... even if the last use was a month ago. Certain substances linger for a while, especially if they can deposit in hair folicle. You could be six months sober and still ping the test. Other issuses include drugs that contain components of legal substances. Opiods (the big problem drug right now) are manufactured from the Poppy Plant... which also is grown for legal consumable products. There are cases where the Opiod tests pings positive on people who have consumed Poppy-Seed Bagels (perfectlly legal and quite common) for breakfast the day of the test. Other tests aren't reliable and will give a false positive from time to time.

Edit: Typically, Possession of a controlled substance assumes you will use it. Reasonable Doubt is harder to make for having the stuff then it is for using it. Someone under the influence could claim they were drugged and law enforcement would have to prove that they weren't to convict (There's actually a known problem where law enforcement agents can get dosed by accident while handling contraband evidence. There was an episode of CSI: Miami where one character had this happen to her... and they realized where the drugs were hidden in a warehouse she served a warrant on but didn't find any evidence. DVD extras featured a police consultant who explained that the whole sequence was thought up because it happened to her for real.). Having the stuff in your possession is much more difficult as they have to show you had it (someone slipping it into your pocket without your knowledge is your job to prove).

In the U.S., Prosecution Discretion means that the Prosecutor can choose not to press the case for any number of reasons, they don't have the resources to fight it, to they don't think they can win with the evidence they have, to political motives (they don't agree with the law... this can be risky depending on the nature of the crime). Typically a simple possession charge where the amount is clearly small enough that it's only for personal use and no other crimes are charged wouldn't be worth the amount of resources to fully prosecute. TO give an example, while Marijuana is legal in the State of Colorado, it's still illegal under Federal Law, so smoking for recreational use in Colorado is still a crime, but not one enforced by the State of Colorado but the Department of Justice (U.S. Federal Law enforcement department... usually). Remember the Feds generally deal with bigger crimes than someone getting high under the bleachers while listening to Jimmy Hendrix, so it only really comes up if you did something bigger (kidnapping a girl, driving over state lines into Colorado, go to a school to get high under the bleachers while listening to Hendrix would get you a Federal Possession charge... but the real concern is the Kidnapping, not controlled drug use). And most crimes that occur in entirely one state, Feds are content to let those states deal with the problem and rarely get involved.

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    Your answers strongly imply that drug usage is illegal but not enforced or rarely enforced. I want to know if there is any law that prohibit drug usage in the first place at all. – user4951 Sep 5 '19 at 16:47
  • @user4951: Edited to explain. Basically, Possession assumes it's gonna get used, but even then, it doesn't really matter (and you don't want to look like you weren't going to use it. Possession with intent to Sell is the worse offense). Being under the influence while operating a motor vehicle is a use specific offense, but usually the test has to be administered right away with visible symptoms documented... if they can't do that, it will likely get charged as reckless driving. – hszmv Sep 6 '19 at 15:12
  • So there isn't really any laws against "usage" – user4951 Sep 6 '19 at 15:25
  • @user4951: I so far as I am aware, no. Keep in mind that the Federal nature of the U.S. makes this difficult as there could be states or territorial holdings or local governments that do criminalize use. There are some controlled substances that have legitimate prescription or religious uses that are permitted (For example, during Prohibition, Catholic Churches could still possess sacramental wine. I personally take medication that contains an otherwise illicit substance and sets off drug tests I take at work all the time.). – hszmv Sep 6 '19 at 15:30
  • I see. Would you add that to your answers. There is no law against usage – user4951 Sep 9 '19 at 9:48

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