Sentencing

Seven Years for Bong Water

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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.

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  1. The blotter paper issue resulted in a guy I knew in high school being tried in federal courts for possession of 25,000 hits of LSD. Never heard exactly what sentence he got out of that. I know he went to prison, but I think they knocked some time off for ratting out his supplier in Indianapolis.

    1. Those goddamn blotter paper pushers.

  2. Doesn’t pretty much all US paper money test positive for traces of cocaine now? I wonder how many grams of cash are typically carried by Minnesota legislators and judges…

  3. Why not drug test everybody, then charge everybody with dope in their system based on their body weight?

  4. Goddamn blue states.

  5. There something similar for opiates, IIRC. 1/4 gram of heroin gets the same sentence as 1 gram of opium (or something like that), even though there’s about 1/60th the potency.

    In other words, if you’re going to do drugs, the DOJ wants you to make sure they haven’t been “stepped on”.

  6. Good News for criminals in jail. We’re all criminals now, that is if you have any cash in your pocket??

    “In the course of its average 20 months in circulation, U.S. currency gets whisked into ATMs, clutched, touched and traded perhaps thousands of times at coffee shops, convenience stores and newsstands. And every touch to every bill brings specks of dirt, food, germs or even drug residue.

    Research presented this weekend reinforced previous findings that 90 percent of paper money circulating in U.S. cities contains traces of cocaine. ”
    http://www.cnn.com/2009/HEALTH…..index.html

  7. Wow. I suppose it is a mistake to expect that judges are as intelligent and principled as they would have us believe. Maybe the long black robe helps sell the illusion.

    Did her attorney not adequately explain to the court’s jesters that the bong doesn’t work without the water?

  8. What is the name of the prosecuting attorney?

    1. Looks like “Paul Beaumaster”. His quote in praise of the ruling exhibits that win-at-all-costs attitude that is a cancer upon jurisprudence.

      1. He’s a public servant. Give him a call!

        Paul Beaumaster
        County Attorney
        (507) 332-6103

        RCattorney@co.rice.mn.us

        1. Done! Not as if it’ll make a difference; I hail from godless heathen Massholia. And I’m kind of a mean-spirited prick when I write in disapproval to public servants, too.

  9. and borders on the absurd.”

    BORDERS? Good Lord! Fuck, it’s OVER THE CLIFF ABSURD!!!

    What chickenshits. Call the dumbfuck judges out for what they are – morons.

  10. Ann Magnuson could not be reached for comment.

  11. Since drugs are now in river water (search: “drugs in water supply”) and cities get their water from rivers, city water is a “mixture” of illegal drugs (no matter how diluted), according to the absurd logic of this majority of four Minnesota Supreme Court judges.

    So ? now that all of us living in Minnesota are criminals possessing “drug mixture” water in our homes and toilets ? shall we wake up, end the abuse of government power, and repeal all laws criminalizing drugs possession?

    For more discussion of this Minnesota case, and it’s excellent dissent, see my blog post:

    Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess
    at short-link: http://wp.me/pAFjr-2g

  12. I have an idea on how to stop exposure to these crazy sentences.

    Just stop using drugs.

    Idiots.

  13. As a pothead who once called the DEA and tried to get the local police to bust my meth head neighbor, I have no sympathy for this woman. If she had been busted for pot water in a bong I’d be as mad as you are. And I can even understand defending folks for transporting blotter paper for acid, but meth is fucking evil. Until I was able to move I had to put up with trash strewn into my yard, white trash skinheads fighting and screaming, weird/skinny/shifty rednecks coming and going at all hours of the night, a break-in, and the worst experience with a neighbor I’ve ever had. I’m generally a very peaceful and non-confrontational person, who used to think that all drugs should be decriminalized. After living near people who cooked, sold and used meth though I’ve changed by outlook. I’m glad the lady got 7 years – even if she was only half as bad as my former mealy mouthed twitcheriffic neighbor. Meth is evil, and the people who use it should be shot on site. If you want to decriminalize weed and other psychoactive drugs, hell – throw coke and heroin in too – that’s fine. I can get behind that. But jumping to defend a meth head doesn’t help anyone out. I wish the prosecutor and police who got that lady up in MN could’ve been in my neighborhood 2 years ago. The police would come to break up the fights and tell them to turn the music down when it was late (death metal at 4am), but they never entered the house and didn’t think anything was strange about the paint cans strewn everywhere and the weird chemical smells. They eventually had to tear down the house. What a waste. Screw meth heads – let them rot.

  14. To criticize the government for imprisoning people for possessing blotter paper or bong water is to imply that it is less insane to imprison people for possessing drugs. It is not.

  15. obviously our ridiculous misinformed officials are too blame, or maybe we just have to many taboos

  16. Maybe it’s time to point out the root cause of this absurdity, which is drug prohibition in the first place.

    Regardless of whether a substance is dangerous to me or not, the government has no right to tell me if I may or may not put it into my body. I own my body, not the government, not my moron Bible-thumping neighbor, and not the hippie burnout down the street. As such, it should be my choice what (if anything) to do with that body – from bloating up to 600 pounds by abusing McMeals to destroying it with drugs, to exercising and eating healthy so I don’t die by the age of 30 to doing what I actually do, which is sit around on my ass all day avoiding both exercise and McDonalds.

    Whether I choose to ingest tobacco, alcohol, heroin, nothing at all, or even cyanide should be no concern of government’s. And as long as we accept legislation by our politicians to protect us from ourselves, this problem is only going to get worse.

    Drug prohibition laws are a perfect realization of Benjamin Franklin’s famous quip about liberty and safety. We have sacrificed essential liberty for temporary safety, and as a result we deserve neither and have lost both.

  17. If Prohibition worked I’d probably, on balance, be in favor of it.

    Since it doesn’t – since our arguably Constitutional stab at it, the Volstead Act, proved conclusively that it makes things worse instead of better – I’d prefer recreational drugs were legal. I’m a lifetime teetotaler, don’t even own a coffee maker; I’m not proselytizing drug use, I disapprove of it… but throwing people in prison for it is immoral and ineffective, just makes things worse – see wood alcohol consumption during the First Prohibition as a very clear example.

  18. does this make hemp and hemp seed products illegal in Minnesota now?

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  20. Drugs is totally prohibited for the teenagers but they are using this as a regular dose, Anti-Drugs Department should take immediate action against it!

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