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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Even Bad People Deserve Good Lawyers

The NYT has a piece up on the upcoming confirmation of Erik Holder as Attorney General. This piece focuses on the increased opposition from Republicans in the Senate who are "concerned" about the clients that Mr. Holder represented while in private practice. They seem to believe that there will be conflicts of interest so great that it prevents Holder from doing his job. Now we will put aside the fact that this comes from the GOP the party of corporations, big business, and corruption. Let sexamine exactly what the GOP is alleging here about lawyers role in society, the criminal justice system, and civil dispute resolution.

From the Times,

“We’ve had eight years of an administration that turned a blind eye to corporate criminals,” said Terry Collingsworth, a Washington lawyer who is suing Chiquita over the Colombian protection money and is facing Mr. Holder in the case. “We need someone with his level of experience and cachet to clean up the Justice Department. Yet I do have a concern and I sure hope that he doesn’t carry over his corporate defense practice into his approach to the job and how he handles these types of cases.”

When the National Football League was facing a legal and public-relations disaster in 2007 over a dogfighting scandal involving the Falcons quarterback Michael Vick, it turned to Mr. Holder to help navigate the maelstrom and represent the league. The pharmaceutical giant Merck tapped him as its lawyer in a Medicaid overbilling case that ended in a $671 million civil settlement. And Rod R. Blagojevich, the now-impeached governor of Illinois, picked him, albeit briefly, to investigate for the state a controversy over a casino development and its possible ties to organized crime.

Already, Mr. Holder’s brief association with Mr. Blagojevich has drawn scrutiny from Republicans, who are waging a more spirited campaign against Mr. Holder’s nomination than many had anticipated. Until now, most of the scrutiny has focused on controversies during the nominee’s time as deputy attorney general at the end of the Clinton administration, particularly his role in the pardon of the fugitive financier Marc Rich.

In responding to written questions from the Senate Judiciary Committee, Mr. Holder made no mention of a 2004 announcement in which Mr. Blagojevich introduced him as a “special investigator” under a $300,000 contract with the state.

The appointment fell through, and Mr. Holder’s aides said his failure to mention the episode had been an oversight that was soon corrected. But some Republicans said they were troubled by the omission. Three Republican senators on the Judiciary Committee — Tom Coburn of Oklahoma, John Cornyn of Texas and Charles E. Grassley of Iowa — sent the governor’s office a Freedom of Information Act request last week seeking documents on the aborted agreement.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the Judiciary Committee, sharply questioned Mr. Holder’s character and political independence in a speech last week on the Senate floor. Mr. Specter told reporters Friday that he wanted to see more information about Mr. Holder’s private practice, to assess whether he was up to the job of attorney general.

I am sure they are very excited about the Blago link. These Republicans were untroubled by the incompetent people who have filled every executive department under Bush. They were untroubled by the mess created at the DOJ under Bush where the law was bent and malformed to suit their purposes. They were perfectly fine with the unqualified lawyers and severely skewed priorities. Instead they have been full throated supporters and enablers of Bush and his ridiculous legal policies. Now they want to come out and attack Holder for representing clients who need a defense.

I have a big problem with those who attack defense lawyers. Under our system of laws everyone is entitled to a defense. Murderers and Rapists and Corporations are all entitled to a defense. This means that someone must be there to defend them. Someone has to do that. Our system cannot function without a proper defense. Otherwise those who were forced to become involved in the system would have no confidence in its ability to meet out justice. If you were accused of a crime you did not commit yet everyone thought you had you might not end up with a competent defense without good lawyers to defend you.

Even those people who have in fact committed crimes deserve a defense. In those cases we can keep the system honest. Make sure the prosecution proves their case Beyond a reasonable doubt and that they did not violate the laws to do so. Unless those accused of misdeeds can have a good defense the prosecution will simply run over the innocent as well as the guilty.

I differentiate lawyers who defend the guilty from ad execs or people like mark penn because corporations are not entitled to a good public image. we might function better if the general public was not being sold on a rehabbed image of an amoral corporation.

Everyone is entitled to good defense. If the republicans succeed in killing the Holder nomination because he represented some big corporate clients it would be a blow to our very foundation of justice.

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Criminal Justice System for the Poor, 6th Amendment and Speedy Trial

If a US citizen is accused of a crime they are guaranteed the right to a speedy trial under the Sixth Amendment to the US Constitution.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The effect of this is that a person accused of a crime has a set number of days after his arrest and arraignment until he has to stand trial. This varies by jurisdiction, in California it is 60 Days. Most defendants however choose to waive this time. The prefer to take their time and to build a defense let the witnesses get a little farther away from the time of the incident. The generally have this option because the courts are so overbooked that offering a time waiver relieves stress on the system. If everyone demanded a speedy trial at the same time many courts would simply lack the capacity to deal with that.

It has become established practice to simply waive time. However, should you choose to, you can withdraw that waiver and the government has to get the ball rolling. They frown on this type of action because it ads stress to the system and so they move things around to accommodate but they may not be so forgiving in the plea bargain dealings. There is always the possibility though that the government forgets about you or that somehow your 60 days lapse. At that point you get to go free. Those are the typical circumstances surrounding the speedy trial. The Supreme Court is preparing to hear about a different aspect of the speedy trial that could have a large impact on the judicial system.

...Michael Brillon, who had been found guilty of domestic assault as a habitual offender and sentenced to 12 to 20 years in prison. The court said the three-year delay in bringing the case to trial had violated Mr. Brillon’s rights.

In urging the United States Supreme Court to hear the case, Vermont v. Brillon, No. 08-88, state prosecutors said the ruling was “a first in the history of American jurisprudence,” because the delays in question had largely been caused by Mr. Brillon’s own court-appointed lawyers. The general rule is that the right to a speedy trial is not affected by self-inflicted delays.

The Vermont Supreme Court acknowledged that, but said the delays in Mr. Brillon’s case had been caused by overburdened public defenders and so should be counted against the state.

“When, as in this case, a defendant presses for, but is denied, a speedy trial because of the inaction of assigned counsel or a breakdown in the public defender system,” Justice Denise R. Johnson wrote for the state court’s majority, “the failure of the system to provide the defendant a constitutionally guaranteed speedy trial is attributable to the prosecution, and not defendant.”

The argument before the Vermont Supreme Court is available in an audio file here and is about 50 minutes long. The full opinion is here.

This case is important because it could provide a massive boost to the public defenders of America. Different jurisdictions have different ways of providing the public defenders that are needed in our justice system. Sometimes you gt contract attorneys, sometime pro bono attorneys, sometimes there is a public defenders office. Some have all three. In instances where there is a public defenders office it usually lags far behind its rival, the prosecutors office, in one very important aspect-- funding.

Its a dirty but not so secret fact that the criminal justice system in our country suffers from a disproportionate allocation of wealth and resources towards prosecution. People tend to think of the prosecution being out matched by expensive oj style defense teams but this is far from the average. Instead it usually the prosecution who have the financial advantage. Prosecutors get funded because of the need to be tough on crime. The effect of all of this is to create a system where the PDs are incredibly overworked and barely providing adequate service.

Currently, funding for public defenders is so low that it makes providing “effective” counsel nearly impossible.

While prosecutors have a limit on how many cases they may be forced to take, public defenders often have no caseload limit, or their limit is above the number of cases per year recommended by the American Bar Association.

With the extra funding they receive, prosecutors are able to afford expert witnesses and pay investigators. Under the weight of excessive caseloads and lesser funding, public defenders are unable to find the time to visit crime scenes, investigate opposition key witnesses, or the money to hire expert witnesses. Fees for expert witnesses are often taken directly out of an attorney’s wages.

In addition to difficult working conditions, public defenders are often paid $75,000 less than their corporate counterparts. Many good lawyers are unable to take these jobs because they are still paying off sizeable law school loans. This makes it difficult to find truly qualified attorneys willing to take public defender positions. The post is too often filled by sub par attorneys unable to find jobs elsewhere or lawyers straight out of law school with no experience in the courtroom.


In Washington State 76% of defendants plead guilty. Unfortunately, due to impossibly large caseloads the practice of “meet ‘em and plead ‘em” lawyering is becoming more commonplace. In order to keep a case out of court, and thereby save time, a lawyer may meet with his client only on the morning of the trial and convince them to sign a plea bargain by persuading them that they will most likely be convicted and their sentence will be lighter if they plead guilty. With only moments to decide, many defendants are swayed, regardless of the fact that they may not be guilty.

If the court chooses to affirm the brillon holding that the right to a speedy trial can be compromised by the failure of court appointed public defenders it may signal a need for those resistant to fund the pd's offices in this country to increase the funding. Otherwise they might start to see defendants go free because the pds office cannot handle the case load and fails to get defendants to trial. It would also be a validation of the public defender system.

It is the poorest of citizens who rely on the pd's office. minorities, the working poor the disadvantaged are the ones who get screwed over by the lack of funding. It is more than just a budget or fairness issue for the personnel in the office it is a question of fundamental human rights. The poor deserve to have their interests looked after too. This is a human rights issue.

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