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MINNEAPOLIS ? In Minnesota, bong water can count as an illegal drug.
That decision from Minnesota's Supreme Court on Thursday raises the threat of longer sentences for drug smokers in that state who fail to dump the water out of bong ? a type of water pipe often used to smoke drugs
The court said a person can be prosecuted for a first-degree drug crime for 25 grams or more of bong water that tests positive for a controlled substance.
Lower courts had held that bong water is drug paraphernalia. Possession of that is a misdemeanor crime.
The case involved a woman whose bong had about 2 1/2 tablespoons of liquid that tested positive for methamphetamine. A narcotics officer had testified that drug users sometimes keep bong water to drink or inject later.
Not too sure if this has been posted, I haven't been surfin the news feeds for awhile...
Seven Years for Bong Water Jacob Sullum | October 28, 2009
Last week the Minnesota Supreme Court ruled that bong water is an illegal drug. Under state law, a controlled substance includes any "mixture" containing that substance, "regardless of purity." The consequences of reading that definition literally can be severe. In the case before the court, a woman whose bong contained 37 grams of water with traces of methamphetamine will now be treated as if she possessed 37 grams of speed, which converts possession of drug paraphernalia, a petty misdemeanor punishable by a $300 fine, into a a first-degree drug offense, punishable by seven or more years in prison. Three dissenting justices wrote that the majority's interpretation of the statute "misapplies the plain-meaning rule...runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd."
This sort of absurdity has a long pedigree. Back in 1993, I wrote a piece for Reason in which I highlighted the ridiculously unjust results of including the "carrier medium" for LSD (typically blotter paper) in calculating the drug's weight for sentencing purposes:
Under federal sentencing guidelines, selling 100 doses of LSD in pure form triggers a minimum sentence of less than a year, but selling the same amount on paper will get you a sentence of at least two years, three months. And if you were old-fashioned enough to drop your acid onto sugar cubes, you will end up behind bars for no less than 15 years, eight months.
Like the Minnesota ruling, this interpretation of the law elicited amazed dissents. "All this seems crazy," the 7th Circuit's Richard Posner wrote in 1990. "To base punishment on the weight of the carrier medium makes about as much sense as basing punishment on the weight of the defendant." The arbitrary, incomplete fix that the U.S. Sentencing Commission devised for that problem?counting each dose in a carrier medium as 0.4 milligram to avoid "unwarranted disparity among offenses involving the same quantity of actual LSD"?is still in force, to judge by this 2006 sentencing manual (PDF). Many states also include "mixtures" in their definitions of illegal drugs; the earliest example I found was New York in 1969.
Rereading that 1993 article, I was also struck by the discussion of the disparity in sentences between crack and cocaine powder:
Julie Stewart, president of Families Against Mandatory Minimums, says the Sentencing Commission's proposed LSD amendment will probably take the pressure off Congress. Especially if the change is retroactive, the families of LSD defendants will be less noisy, and judges will find the sentences they're forced to impose less disturbing.
Stewart is more optimistic about the possibility of a legislative solution for crack offenders. Federal law treats crack cocaine as if it were 100 times worse than the powdered form of the drug, cocaine hydrochloride. Thus 500 grams of crack triggers the same penalty as 50 kilograms of cocaine hydrochloride. A first-time offender with 20 grams of cocaine hydrochloride faces a minimum sentence of 10 months, while a first-time offender with 20 grams of crack faces a minimum of six years, six months.
As I noted a couple weeks ago, it looks like the remedy that Stewart was optimistic about 16 years ago is finally coming to pass.
Seven Years for Bong Water Jacob Sullum | October 28, 2009
Last week the Minnesota Supreme Court ruled that bong water is an illegal drug. Under state law, a controlled substance includes any "mixture" containing that substance, "regardless of purity." The consequences of reading that definition literally can be severe. In the case before the court, a woman whose bong contained 37 grams of water with traces of methamphetamine will now be treated as if she possessed 37 grams of speed, which converts possession of drug paraphernalia, a petty misdemeanor punishable by a $300 fine, into a a first-degree drug offense, punishable by seven or more years in prison. Three dissenting justices wrote that the majority's interpretation of the statute "misapplies the plain-meaning rule...runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd."
This sort of absurdity has a long pedigree. Back in 1993, I wrote a piece for Reason in which I highlighted the ridiculously unjust results of including the "carrier medium" for LSD (typically blotter paper) in calculating the drug's weight for sentencing purposes:
Under federal sentencing guidelines, selling 100 doses of LSD in pure form triggers a minimum sentence of less than a year, but selling the same amount on paper will get you a sentence of at least two years, three months. And if you were old-fashioned enough to drop your acid onto sugar cubes, you will end up behind bars for no less than 15 years, eight months.
Like the Minnesota ruling, this interpretation of the law elicited amazed dissents. "All this seems crazy," the 7th Circuit's Richard Posner wrote in 1990. "To base punishment on the weight of the carrier medium makes about as much sense as basing punishment on the weight of the defendant." The arbitrary, incomplete fix that the U.S. Sentencing Commission devised for that problem?counting each dose in a carrier medium as 0.4 milligram to avoid "unwarranted disparity among offenses involving the same quantity of actual LSD"?is still in force, to judge by this 2006 sentencing manual (PDF). Many states also include "mixtures" in their definitions of illegal drugs; the earliest example I found was New York in 1969.
Rereading that 1993 article, I was also struck by the discussion of the disparity in sentences between crack and cocaine powder:
Julie Stewart, president of Families Against Mandatory Minimums, says the Sentencing Commission's proposed LSD amendment will probably take the pressure off Congress. Especially if the change is retroactive, the families of LSD defendants will be less noisy, and judges will find the sentences they're forced to impose less disturbing.
Stewart is more optimistic about the possibility of a legislative solution for crack offenders. Federal law treats crack cocaine as if it were 100 times worse than the powdered form of the drug, cocaine hydrochloride. Thus 500 grams of crack triggers the same penalty as 50 kilograms of cocaine hydrochloride. A first-time offender with 20 grams of cocaine hydrochloride faces a minimum sentence of 10 months, while a first-time offender with 20 grams of crack faces a minimum of six years, six months.
As I noted a couple weeks ago, it looks like the remedy that Stewart was optimistic about 16 years ago is finally coming to pass.
Pawlenty vetoes bong water rule May 19, 2010 -twincities.com
Despite near-unanimous support, Gov. Tim Pawlenty has vetoed a bill preventing prosecutors from using bong water to calculate the weight of controlled substances in drug prosecutions — and a lawmaker who helped pass the legislation accused the governor of doing so for political reasons.
The bill was the result of a 4-3 Minnesota Supreme Court decision last year that allowed Rice County prosecutors to charge Sara Ruth Peck, 47, of Faribault, with first-degree drug possession — a charge often reserved for drug dealers — after the water in a glass pipe tested positive for traces of methamphetamine.
But dissenting Justice Paul Anderson said the result "borders on the absurd," and much of the Legislature agreed. The final version of the bill passed the Senate 66-0 and the House 129-2. Even police and prosecutors dropped their opposition after the bill was narrowed to include only bongs holding less than four ounces of water.
"I think it showed the Legislature working at its best to find a compromise," said House sponsor Rep. Phyllis Kahn, DFL-Minneapolis, who was "shocked and amazed" by the veto. "I bet this issue was unique in the country in terms of the decision to include the water."
In his veto letter, Pawlenty said the bill "waters down" criminal statutes.
"Governor Pawlenty vetoed this bill because it was unclear and could've created a loophole," spokesman Brian McClung said. "A better approach is not to exempt the water, but to count the drug content within the water."
Rice County Attorney Paul Beaumaster essentially decided to treat the bong water as a drug rather than drug paraphernalia. The Supreme Court's majority ruled that the court must follow the plain meaning of the drug laws, which contemplate drug mixtures without regard to purity.
Anderson objected.
"Rice County's decision to charge Peck in a manner far more serious than what was intended by the Legislature represents the kind of counterproductive activity that leads unnecessarily to increasing incarceration rates and wasted taxpayer money," he wrote.
After the Supreme Court's decision and resulting outcry, Peck pleaded to a lesser charge and was sentenced to five years of probation.
Kahn pointed out that one of the two people to vote against the bill was Republican gubernatorial candidate Tom Emmer, the party's presumptive nominee. She suggested the governor's veto had more to do with campaign politics than criminal policy.
"The only reason I could think of for the governor to veto it is to give cover to Emmer," Kahn said.
McClung said who votes for or against bills is not a factor in whether Pawlenty vetoes them.