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.