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.