Bong Water is the New Gateway Drug

How much prison time is two and a half table spoons of bong water worth? In Minnesota the answer is 86 months of prison time. Thats just over seven years of prison time for possessing some bong water. In a -ridiculous, abhorrent- decision handed down by the Minnesota Supreme Court Bong Water with traces of meth was found to be a substance that qualified as a felony drug possession charge. In essence, the finding is that bong water with meth is a drug in and of itself.

I do note that there are traces of meth in the water. that is a key fact and anyone who doesnt report it that way is oversimplifying the case. The opinion from the court is available in pdf here.

The majority presents its case a straight forward issue of statutory interpretation. They make several moves to justify their approach. They cite case law that requires them to apply a plain meaning rule and statutory language that says, a mixture is “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.”

The majority goes out of its way state that the definition of mixture is unambiguous. This is essential to their case. By saying that the definition is straight forward they avoid any of the messiness of public policy, legislative intent, or anything else. the definitions used to determine the meaning of mixture are,

A “preparation” is a “substance, such as a medicine, prepared for a particular purpose.” The American Heritage Dictionary 1386 (4th ed. 2000). A “compound” is a “combination of two or more elements or parts.” Id. at 379. A “mixture” is “[s]omething produced by mixing.” Id. at 1128. A “substance” is “[t]hat which has mass and occupies space; matter. A material of a particular kind or constitution.” Id. at 1726.

The court went on to find that,

The bong water is a “mixture” because it is a “substance containing a controlled substance”—methamphetamine.

The majority reasons based on the premise that the bong water is a drug in and of itself. They take this as a premise because of testimony that

...the pink coloring and fruity odor of the liquid discovered in Peck‟s bong was significant. He explained that bong water is not normally colored or scented. When asked why a narcotics user would keep bong water, Rauenhorst replied, “for future use . . . either drinking it or shooting it in the veins.”

The significance of this passage is clear when the footnotes are examined (note always read the footnotes, thats where the good stuff is). In this case there is a footnote that spells out the fact that the majority thinks that this bong water is going to be used as a drug later on. Footnote one,

When viewed in a light most favorable to the State, the record demonstrates that the water containing methamphetamine stored in Peck‟s bong was colored and scented, that a button was placed over the bong opening presumably to keep out flies, and that narcotics users are known to drink or inject the unconsumed methamphetamine, which is captured by the water in the bong. The dissent states that, even under its interpretation of the statutory language, bong water may be a mixture, and not drug paraphernalia, if the evidence shows the liquid in the bong was more than a facilitator of consumption. Although we do not adopt the dissent‟s interpretation of the statutory language, when the record is viewed in a light most favorable to the State, the evidence demonstrates that the liquid in the bong was more than a facilitator of consumption.

Strictly speaking this step of justification shouldn't be necessary under the majority's reasoning. Their reasoning is that any substance with traces of a drug qualifies as a mixture. The plain meaning of the law that the majority is so fond of applying doesnt need the qualification that this is a drug. What they are trying to do is to hold off the dissent and the lower court's opinion that the bong water is only "drug paraphernalia", part of the means of getting high and thus shouldnt count under the statute.

Amazingly this type of discussion over the nature of what a mixture is for the purposes of drug crimes isnt new. Its very old. 19 years ago we can find the case Chapman v United States. That case dealt with lsd and whether the paper used to apply it should count as part of the weight. The Supreme Court at the time found it to be perfectly ok to count the weight of the delivery mechanism in the punishment. For lsd that meant that a bottle of pure lsd would get you less than a person with paper to distribute it. The dissent in that case uses an interesting comparison for an absurd result,

Thus, whether one dose of LSD is added to a glass of orange juice or to a pitcher of orange juice, it is still only one dose that has been added. But if the weight of the orange juice is to be added to the calculation, then the person who sells the single dose of LSD in a pitcher rather than in a glass will receive a substantially higher sentence. If the weight of the carrier is included in the calculation not only does it lead to huge dis- parities in sentences among LSD offenders, but also it leads to disparities when LSD sentences are compared to sen- tences for other drugs. See n. 12, supra; 908 F. 2d, at 1335.

Think about that for this case. If the bong had been bigger the sentence would have been longer. After all, the water was still in the bong when found. Using the OJ example from chapman it is clear that using the water from the bong as a means of escalating the sentence is a bad road to go down.

The dissent does a pretty good job pointing out how ridiculous this is,

The majority‟s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd. The majority reaches its conclusion because it misapplies the plain-meaning rule and fails to consider the statutory language in its application to the facts at hand and in the context of the statute as a whole. The result is a decision that has the potential to undermine public confidence in our criminal justice system.

The dissent in this case uses a two pronged attack. first is the fact that the water fits under two aspects of the statutory scheme. This is why the majority needed to water to be a drug itself. if it wasnt a drug then the dissent creates ambiguity with its paraphernalia argument (incidentally the dissent does an excellent job of explaining how to use a bong). Second, the dissent looks at what the law is supposed to be doing. surprise, its designed to punish people who carry more crack.

The sponsor further explained that the Act was designed so that “[t]he more crack or cocaine that an individual possess or sells, the stiffer the penalties under the provisions of this bill.” Id.

One of the commentators at the hearings on the bill was James Kamin, Assistant Hennepin County Attorney, who explained the purpose behind the weight-based system. Kamin said that the Act “makes the penalties commensurate with the crime. That is, someone who is possessing 25 grams of crack ought to face a significantly stiffer penalty than someone possessing three or four or five grams of crack.”

Thus the goal is to punish people who have more of the drug. floating a tiny amount of a drug in an ocean of water shouldnt result in a life sentence. The majority in its zealous attempt to punish a drug user and to advance the cause of textualism, trample over the interests of justice. This is a law designed to punish dealers. clearly possessing bong water is not the same as dealing crack and yet the majority applies. The dissent illustrating why this is so stupid.

Treating bong water as a mixture capable of sustaining a first-degree felony controlled-substance charge does not meet the purposes, aims, or objectives of the legislature when it established the weight-based system. Bong water is not marketed or sold by dealers, large or small, nor is it purchased by consumers. It is not even ordinarily consumed. Bong water is usually discarded when the smoker is finished with consumption of the smoke filtered through the bong water. A person is not more dangerous, or likely to wreak more havoc, based on the amount of bong water that person possesses. The bong water is no more dangerous than the bong itself, because both are used to facilitate consumption without being consumed. Thus, there is no reason to believe the legislature intended to treat the bong water differently from the bong, and there is even less reason to believe that the legislature intended to treat bong water so seriously as to presumptively mandate a more than 7-year prison sentence for possessing two and one-half tablespoons of bong water. As stated earlier, I believe this result to be absurd and a threat to public confidence in our criminal justice system.

The dissent goes on to illustrate that this opinion means that bong water is punished more severely than 24 grams of cocaine, heroin, or methamphetamine. 24 grams of heroin is equal to approximately 60 individual doses, 24 grams of cocaine is equal to approximately 200 to over 2000 doses, and 24 grams of methamphetamine is equal to approximately 24 to 240 doses. How many doeses is two table spoons of bong water? none. people dont use bong water as a drug.

This decision is simply bad in many respects. I cant tell whether this is the result of the war on drugs run amok or textualism run amok or what. That this is a result in 2009 after all the evidence showing the drug war to be a failure and the evidence that we simply lock up too many people should embarrass the justices who were in the majority.

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No Idea What They Are Talking About

When i read most articles about voters, their motivations, rationales, etc i want to smash my head against a brick wall. Today featured a string of blog posts by respected bloggers steve benen, digby, matt yglesias about exactly who and what independent voters are. These bloggers have gotten where they are today because they tend to write intelligently about things that they know and what they say is accurate. This is in stark contrast to the "reporters" and other media professionals who profess to cover politics.

Digby wrote a reflection that nicely illustrates the ignorance at work

I was listening to all the gasbags drone on all day yesterday about how the "independents" are all unhappy with Obama and are probably going to vote for the Republicans again when just a couple of years ago they were all unhappy with Bush and voted with the Democrats. This was interpreted as a signal that Obama needs to tack right immediately to recapture them.

Does that make sense? Isn't the answer more logically that independents just habitually dislike whoever is in power and think that both parties are incompetent? Why else would they identify as independents in the first place?

I realize that the villagers think there is some sort of "median" moderate voter who believes that the answer to all of our problems lies somewhere between the positions of the two parties. But that's not necessarily the independent's position. They don't like either party true, but it doesn't necessarily follow that they yearn to split the difference. In fact, I suspect that a large number of them are apolitical people who don't really understand politics at all and simply reject whoever is in power when things aren't going well, without regard to party. (In fact, there is great social utility in rejecting party politics and proclaiming yourself unhappy with the whole set-up. Who can't relate to that on some level?) Many independents ideologically fall far enough outside the two parties that they can't consider themselves members of either --- libertarians, greens etc.

The number of independents out there is quite large and all national politicians need to reach them in elections in order to win. But the knee jerk assumption that they are always more moderate than everyone else is probably wrong. They might just be more cranky, more cynical, more uninformed, more skeptical or more impatient. There are a lot of reasons why someone might be an independent in American politics but I suspect that ideology is at the bottom of the list.

It is embarrassing that the media in this country who cover politics daily have such little understanding about voters and their behavior. There is such a lack of sophistication in the coverage. There is a long history of voter theory in political science dedicated to figuring out why people vote the way that they do, how they form their opinions, etc. Yet discussions meant to inform the public and help them gain a better understanding of politics and how things are likely to work takes advantage of non of it.

When was the last time you saw V.O. Key referenced? Or Morris Fiorina? Its not like the basic texts are hard to find. Head over to this site for some summaries of the seminal theories of voting behavior. I would love to see direct references to these works in the predictions made by the pundits and other blatherers on tv. I would tolerate the taking of positions that showed even a minimal familiarity or understanding of the work. The deepest that any of the experts who routinely tell us why one thing is good for obama or this thing is bad is thomas franks' whats the matter with kansas. Though i doubt they have read bartels reply.

Is it too much to ask that the people who are paid to analyze voting and what is likely to affect it to exhibit a basic understanding of it? Digby's comments on independents are not surprising. The media describes things in terms of left and right. short hand for conservative and liberal, democrat and republican. The truth is that things are more complicated and messy than simple two dimensional axis. most people do not have developed coherent ideologies. they are all over the map.

About half said a major reason for their independence is that they agree with Democrats on some issues and Republicans on others, and that they are not comfortable with either party. Four in 10 said not wanting to put a label on their political views is a principal reason for calling themselves independents. Fifteen percent said they are independent because they are simply not very interested in politics.

As benen, yglesias, atrios, digby, all point out, describing independently registered voters or people without a party as being moderate centrists is lazy and its wrong. Being wrong on the scale that the village is damages political discourse, policy making, and society itself. Politicians change their behavior based on the incorrect assumptions of the media. With the failure of the village to provide even basically correct interpretation of voter behavior i am not surprised that papers are going under.

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Why Grayson's Use of Legislative History is Brilliant

Dday has a post up about the rising liberal lion Alan Grayson and his myriad efforts to protect the American people. As Grayson rockets to legislative stardom i wanted to take a minute to explore just how good he is at his job. The technical thing i have been most impressed with is his use of legislative history and understanding of the legal system in fighting fraud and abuse by government contractors. His use of legislative history is brilliant.

For a a quick refresher,,

When the House of Representatives went after federal funding for the community-organizing group ACORN last week, the bill as written also affected "any organization" that had been involved in a wide range of fraudulent activity and other bad behavior.

On Friday, Rep. Alan Grayson (D-Fla.) inserted into the "legislative history" language spelling out that including all fraudulent organizations was, in fact, the intent of the Congress.

Meanwhile, he has been asking citizens to suggest specific companies which would be targeted by the anti-fraud language and provide evidence for the claim. The list has grown several pages long. The names of those organizations will be submitted into the congressional record next week.

"The purpose of this bill is to cleanse federal contracting and grant-making, completely and permanently. The purpose is to put an end to the invidious practice of rewarding those who steal taxpayer money by giving them more taxpayer money," writes Grayson. "The bill imposes, and is intended to impose, a corporate death penalty on contractors who fall within the scope of its prohibitions."

Careful readers may note that Grayson didnt actually change the text of the bill. Thats the first clever move. If he had actually suggested that it be explicitly spelled out that Boeing etc were part of the bill it would most likely have hindered the bills passage. Republicans would not stand for regulating actual fraud in the military industrial complex. Actually most Democrats would run away from that too. The point is that he left the broad text alone. He simply bolstered the broad "any" language by making it clear for the courts who have to enforce the law that congress really meant any. Why does this matter? Grayson's language prevents courts from reading out Acorn, Boeng, Xe, or anybody else who commits fraud which they might have done without the language.

An example,

The primary intention is not merely to penalize such organization, since other laws perform that function. Rather, the intention is to protect the Government and the taxpayers from losses in the future, and to deter misconduct on the part of federal fund recipients. The intention of deterrence, in particular, requires that these prohibitions be construed broadly, and enforced strictly.

When a judge considers the statute they may take several different approaches. One of these is a textualist approach where upon reading the statute they would find that it does target "any organization." If they strictly adhere to textualist approach they really shouldnt get beyond that. A court giving that a plain meaning could not reasonably find that Boeing is differentiated from Acorn. However, many judges may be tempted to say that congress could not have meant "any" organization and that this would be an absurd result and that the statute should be read to have exceptions. One tool used to determine whether congress really meant "any" is--legislative history.

When a judge looks for the intent of congress to determine whether they really meant "any" organization they will find Grayson's language that is very strong and very clear that they did mean any to include every one perpetrating fraud. I mean his language makes it clear that if you file false reports you get the world dropped on you.

Regarding such prohibitions, Congress intends to substitute a "per se" rule in place of any rule requiring a balancing of factors, or exercise of discretion or judgment, to the full extent permitted for Congress by the U.S. Constitution. "Permanent" means lasting for the entire time that the organization remains in existence. If a principal, or principals, of a covered organization form(s) or attempt(s) to form a new organization, then that new organization may be deemed, through administrative action, to be a covered organization. "Principal" means an officer, a director, or an owner of at least five percent of the shares of a covered organization.

This really cuts out any chance a judge would have to exercise discretion. Grayson wrote it out. No discretion, no balance of factors like courts love to do. One strike and your out.

The other ting that is rather clever about this is that it should alleviate any issues with the bill being a bill of attainder. Bills of attainder are those passed to target specific people or organizations and are unconstitutional. By making it clear that congress meant to get everybody Grayson cleans that up and uses the canon against constitutional conflict to his benefit. Courts are supposed to believe that congress does not intend to pass unconstitutional legislation so if there is a constitutional interpretation it should be used. Grayson provides one. No chance of getting the bill thrown out.

I cant say whether Grayson himself wrote this, he does have a J.D. from Harvard. He is certainly capable. Whether he wrote it or not i have to applaud just how strong he made the legislative history and how smart he was in deploying this tactic. Some judges may blow it all off entirely but if they want to be honest they need to pay attention to it.

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