Seven Years for Bong Water

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.