The Case For Bong Water

Blame the person who first came up with the idea that the weight of drugs would make a fine basis to enhance the degree of the crime.  Why quantity rather than quality?  What makes four ounces a magic number?  Who really thinks the guy at the bottom of the foodchain is more of a criminal than the guy at the top?  Weight is just a problematic basis to categorize drug crimes, yet somebody decided that weight would provide a clean, clear dividing line and it’s been used ever since.

In the beginning, there was pure weight.  And it was good.  It made sense, because the person with a kilo of 92% pure heroin was certainly more guilt-worthy than the person with 43% pure heroin.  The former would be stepped to make twice as much, while the latter was the crap sold to street junkies.

But like all good things, people learned how to play the system, both the suppliers and dealers and the criminal defense lawyers who defended them. Force the crime labs to double or triple their work, often an impossible task at all and at best a way to clog the pipeline so that nothing got done quickly enough to indict someone before release, or try someone before the speedy trial clock ran.  And then the cross-examination of the laboratory technician, if he showed, was brutal, calling into question every aspect of testing to the extent that no one knew how much drugs were involved in the pure sense.  Ah, it was a fun time.

So the lawmakers wised up.  Pure weight turned into aggregate weight, the weight of actual drugs plus whatever else might be found in the evidence bag.  It had its conceptual flaws, but then no one forced the bad guys to deal or possess drugs in the first place, so who cared if it was less than fair to them?  They always had the option to not commit a crime in the first place, right?

Which brings us to Minnesota v. Peck, from the Minneapolis Criminal Law News.

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water (water which had been used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree.  The crime is the most serious felony drug crime in Minnesota, with a maximum penalty of 30 years in prison for a first offense. 

What’s interesting is that we’ve gone from the marketable drug to the mixture of marketable combined with the flotsam and jetsam of drugs, to the water through which a drug passes, of absolutely no value nor harm.  Though the water may test positive for marijuana or hash by dint of the drug having passed through it, it serves to neither provide a source of salable drugs nor a high.  It is the most extreme literal translation of aggregate weight, wholly disemboweled from the purpose of the criminal law.

My blawgospheric neighbor, WindyPundit, who isn’t exactly keen on criminalized drugs in the first place, does some quick math to appreciate just how absurd the literal construction is.

Let me make this clear: If you mix an illegal drug with an ounce of water, you can be charged with having 1 ounce of a drug mixture. Then, if you dilute the drug by adding another ounce of water, you can be charged with having a larger amount—2 ounces—of the drug mixture, even though in both cases you had the exact same amount of the actual drug.
And he points out that the introduction of water into the weight calculations isn’t exactly a novel idea:

This is not an isolated example of bizarre legal thinking :

…a guy dumped his meth in the toilet.  The cops scooped the water out, weighed it, and used the weight of the toilet water as the basis for his prosecution.  Since they scooped more than 600 grams of water out of the toilet, that put him over the limit for a 1st degree felony.

The jury gave him 85 years in prison…

This is, the Court said, what the legislature intended.

That Windy is a tough man to please.  After all, is it the cop’s fault that the fellow chose to mix his meth with toilet water?  Or with bong water? 

One dividing line in applying an aggregate weight standard is that it includes only that which the defendant chose to mix into the drugs.  This might seem obvious, but I’ve had cases where the cops did the aggregating (such as sweeping up the floor of a grow house to bag the loose detritus, and added about ten pounds of soil and dust bunnies to the mix), and argued that aggregate weight shouldn’t include whatever the police decide to toss into the bag.

The flip side to this argument is that it’s fair game to include whatever the defendant added to the drugs on his own, that being entirely his choice.  On some occasions, that would be water, a very weighty, and utterly useless if not counterproductive substance from a drug dealing perspective.  There’s just no market for meth-infused bong water.

The majority in the Minnesota v. Peck case performed a routine application of the law, there being no requirement that the substance now containing a scientifically detectable amount of meth need be of the sort that would interest anyone.  The dissent recognized the elephant in the room, that this application was facially absurd.

And though it is obviously absurd, the dissent suggests in a footnote (4) the ironic problem down the road.  If they were to hold that the meth, mixed with water, was not a “mixture” as criminalized but a by-product of use outside the purview of the law, what’s to stop some enterprising dealer from supplying bulk meth in liquefied form mixed with water, to be cooked out later for distribution?  Crazy?  Perhaps, but who would have believed that somebody would come up with a way to cook cocaine and baby laxative into little rocks to be smoked by crackheads?  These guys can be very imaginative.  Don’t underestimate them.

While the outcome in Minnesota, not to mention Austin, clearly go well beyond the legislative, and rational, purpose behind criminal drug laws, and produce absurd results, the problem can’t be so easily dismissed.  Laws rarely offer sufficiently broad coverage that they can account for every crazy thing that people come up with, whether those people are drug dealers or high court judges.

And if you want to know how things could get worse, or more absurd, consider the implications if those who promote the notion that all laws should be written in their simplest form, comprehensible to the basic high school sophomore with no greater complexity or comprehensiveness than would fit in words of no greater than two syllables.  Talk about a disaster.

Of course, we could hope that courts would exercise some reasonable degree of discretion to avoid absurd results, a backdoor to legislative inapplicability despite the absence of overt ambiguity, or perhaps a general application of the Rule of Lenity to rules that “common sense” suggests should never apply.  But then we’re back to the problem with “common sense”, the one thing we’re assured is unique to the individual, no matter how cold his heart.

8 thoughts on “The Case For Bong Water

  1. Jdog

    I think you’re missing some great opportunities here. I know a guy — he doesn’t, I’m pretty sure, use meth or other illegal drugs, but, then again, if he did, he’d probably not mention it to me — who owns a very nice piece of vacation property, with its own very small lake/large pond on it.

    But let’s say, hypothetically, that he does decide to give crystal meth a try, only to change his mind at the last moment, and toss the bag of it (the stuff sometimes comes in bags, I take it?) into the pond. So now he’s in possession of a pond’s worth (several hundred tons, I’m guessing) of homeopathic meth water, and not only does he get to go to prison for a gazillion years, but the local Drug Task Force gets to forfeit his whole vacation home for him.

  2. Stephen

    One of the hidden problems with framing law in the simplest possible terms is that this is also unbelievably complicated to do. One of the biggest selling UK daily newspapers (the Sun) caters to a reading age of 12. It’s designed to be quickly and easily understood. However, it’s also one of the biggest employers of English PhD laureates outside of teaching because simplifying issues down to the lowest common denominator is hard to do. If the Sun needs doctors of English to write about current affairs and sports what sort of qualifications are our draughtsmen going to need to write statutes?

  3. SHG

    You’re thinking too small.  What if you friend had an oceanfront vacation home?  The only problem would be where to store the evidence.

  4. John Neff

    I agree that bill drafting is a hard job but most of the problems with laws are the result of last minute amendments by legislators who think they know what they are doing.

    This whole discussion requires suspension of disbelief because it implies the defendant, defense attorney, county attorney and judge are all idiots.

  5. Steve Grattage

    And yet, over here in Blighty, we have none of these problems.

    Perhaps our defence lawyers and Defendants aren’t as clever as yours over the pond.

    Here it is weight of pure that is determinant. Prosecution provide their evidence of weight and purity, and if it is such to form prima facie case, charge and court process follow.

    Defence can test the sample themselves and put evidence before the court.

    If dispute, jury decides.


    (reading this back to myself, I think Twitter has stopped my ability to write full sentences. C’est la vie)

  6. thefncrow

    Y’know, every few years, some group will take a sample of some area’s water supply and run drug tests on it, finding cocaine or other narcotic drugs in the water supply, and you’ll see newspapers writing fear-mongering stories about how drugs have been getting into the water supply.

    The municipal water department is the ostensible owner of this water. Under the new ruling, how is the municipal water department not a criminal enterprise?

    I mean, not only is this the entire supply of water for the surrounding area, meaning that the quantity is massive, but this water probably contains marijuana, cocaine, methamphetamine, and numerous prescription drugs which I’d imagine the municipal water department lacks prescriptions for.

  7. Thomas C Gallagher

    Thanks for mentioning my blog article about this, on Minneapolis Criminal Law News. I’d like to add to the discussion so far that the Minnesota Supreme Court’s decision in the Peck case (here is a link to the decision on my blog article ) was a 4-3 decision. The dissenters noted that the majority opinion “borders on the absurd.” My, aren’t those dissenters polite?

    This blog article highlights they key problem – making a water weight the basis for long prison terms is absurd. there seem to be so many other issues that could arise in such unjust cases – criminal intent being another.

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