The Minnesota Supreme Court, in a 4-3 decision, has ruled that “Bong Water” was a “mixture” of “25 grams or more.” And this supported a woman’s criminal conviction and prison sentence for first degree Controlled Substance crime, based on possession of water.
The crime is the most serious felony drug crime in Minnesota. Its maximum penalty is 30 years in prison for a first offense. The case is Minnesota v. Peck, A08-579, 773 NW 2d 768 (Minn. Supreme Court 2009).
Bong water case: Destroys Proportionality
The majority opinion takes an absurdist, literal view. It argues in essence that any amount of a substance dissolved in water makes that water a “mixture” containing that substance.
Perhaps. But, Minnesota’s criminal prohibition laws make greater quantities of drug possession a more serious crime than smaller quantities. So the Court’s simplistic view destroys the legislative public policy of the quantity-based severity levels.
If a person possesses one-third gram of methamphetamine; they could face Controlled Substance Fifth Degree charges, with a five-year prison maximum.
But – dissolve the one-third gram in 26 grams of water, and under this bong water decision; that results in a Controlled Substance First Degree – and 30-years prison.
Just add water for 500% the prison time
And this defeats the legislative policy of treating larger quantities of drugs more harshly. Worse – it makes no sense. It lacks any rational basis. And it leads to an absurd result.
What is a bong?
A bong is a type of water pipe.
In the case of marijuana, the government could charge a felony for a non-criminal small-amount smoked in a bong; not for the marijuana, but for the weight of the water.
Or you can use a water pipe to smoke tobacco, marijuana, methamphetamine (as in the Peck case). So anything you can smoke, you can smoke in a water pipe. The water in the water-pipe, or bong, has one purpose – to cool the smoke. After use, you discard it. So you pour the dirty bong water down the drain after use.
Smokers view the water which filtered and cooled the smoke as something disgusting. Used bong water is like a used cigarette filter; like a disposable diaper. It’s trash. So the used water has no other purpose.
Apparently a naive or misguided police officer testified otherwise in the Peck bong water case. And – amazingly – the four in the majority of the court appear to have given that testimony credit.
Abuse: Prosecutors can manipulate penalties
Courts have generally tried to prevent police and prosecutors from manipulating facts or evidence to manufacture criminal liability, or jack up the penalty. Here is a horrific instance to the contrary. Discretion can be abused. And here we see an example of prosecutorial abuse of discretion; and lack of judicial oversight.
Government wants a more serious crime? Charge the water.
Water is heavy – much heavier than drugs. And drug crimes are based on weight. But the law does not currently define water to be an illegal drug.
Tap water contains illegal drugs
Frequent news reports remind us about the drugs in the rivers and most of our municipal water supplies. (But not concentrated enough to hurt us, they assure us.)
Type “in water supply” into your internet search engine. And you can read thousands of reports of scientific studies documenting this.
So as a result, if you have tap water from a river, like in Minneapolis, then you can now be charged with a Minnesota Controlled Substance First Degree Crime. (Because toilet tanks hold more than 25 grams of water, with illegal drugs dissolved). And therefore if you smoke with a water pipe, the bong water contains drugs, even before the pipe’s first use.
A troubling variation of the trace-drug criminal case, with only a trace amount of possible illegal drugs. There may be too little of the material for chemical identity testing.
The widespread scientific reports of cocaine contamination (in trace amounts) on most United States currency, would be another example of “trace evidence of illegal drugs possession.” Under the Peck bong water case, we can have a situation of a trace amount of illegal substance “mixed” with water, which is heavy. Or – we could have a relatively small amount (by weight) of illegal contraband mixed with a large amount of (heavy) water.
Even if you believe some drugs possession should be a crime; should we treat one gram in water the same as one kilogram (1,000 grams) in powder form?
Dissent against the Bong Water Case
At least the dissenting opinion, by Justice Paul H. Anderson, joined by Justice Alan C. Page, and Justice Helen M. Meyer, exhibits common sense. Here is what Justice Paul Anderson wrote in dissent of the majority opinion:
“The majority’s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd…the result is a decision that has the potential to undermine public confidence in our criminal justice system.”Justice Paul Anderson, dissenting, State v. Peck, 773 NW 2d 768 (Minn. Sup. Court 2009)
It’s a good read. How could the four in the majority could have disagreed with the three dissenters?
Hopefully, this extremity marks the beginning of the end of the 100 year Prohibition experiment. Using criminal punishment as a strategy to solve this public health problem simply does not work.
It’s time to change the laws. And this absurdity makes that clear.
After Minnesota’s Prison for Bong Water case
It was a bare majority decision, 4-3, with a strongly worded dissent. And some of the Justices wrote that the legislature should amend the statute. The Peck case rules that Bong Water is “a mixture” of “25 grams or more.”
Therefore, the Court ruled, bong water supports a First Degree Controlled Substance conviction; and prison. And this despite the fact that it contained only trace amounts of illegal drugs.
The punishment was based on the weight of the water, not the weight of the drugs. The case is Minnesota v Peck, Minnesota Supreme Court, October 22, 2009. So the case gained worldwide infamy .
Trace amounts of illegal drugs in bong water could be a crime based upon the weight of the water “mixture.” Therefore, trace amounts of illegal drugs in our drinking water must also be a crime to possess. That logic is inescapable under the Peck Court’s literal interpretation.
And if that is the case, then every Minnesota citizen is a drug criminal – if possessing river sourced tap water. But perhaps those with well water can rest easy, without fear of a drug-police home invasion and prison.
Solution: Remove drugs from the water supply?
A Bill the 2010 Minnesota Legislature considered, the Safe Drug Disposal Act, would reduce the pharmaceutical drugs in our drinking water supply, and rivers. And remember, it is a crime in Minnesota to possess prescription drugs without a prescription. So if you possess water in your toilet tank, prosecutors can charge you with First Degree Controlled Substance crime and years of prison, due to trace drugs in the water (under the Peck case and the “mixture law”).
Will Minnesota lawmakers undo the “Bong Water Case?”
A Bill in the 2010 Minnesota House, H.F. No. 2757, would’ve amended Minnesota Statutes section 152.01, subdivision 9a, to read:
Subd. 9a. “Mixture” means a preparation, compound, mixture, or substance containing a controlled substance,
regardless ofwhere purity is relevant only when weighing the residue of a controlled substance.
And if ever adopted, that would bring back some proportionality of the severity of a drug crime to quantity.
Advocates of drug legalization (civil regulation) may have mixed feelings about that Bill. But yes – it would reduce gross injustice to people facing prison for possession of water or other non-drug media.
On the other hand, Prohibitionists really shot themselves in the foot on this one. After all, the Minnesota Bong Water case undermines public confidence in criminal drug Prohibition laws and their enforcement. So one may hope that this irrational law will hasten the Repeal of drug Prohibition laws in Minnesota.
But, what was the Minnesota legislature’s weak solution to this infamous Minnesota bong water prison case?
Mixture: Minnesota under four ounces bong water exception
The best solution is to repeal the “mixture laws” completely. But if we are going to punish possession of some drugs with prison, the punishment should at least be proportionate to the weight of the drugs, not the weight of the dilute.
So another approach would have kept the mixture language in the illegal drug statutes, but returned proportionality, as in H.F. No. 2757 above.
But what did the Minnesota legislature actually do?
They amended the 1st Degree, 2nd Degree, 3rd degree Controlled Substance possession crimes, 152.021 – 152.023. For those, the weight of fluid in a water pipe “may not be considered in measuring the weight of a mixture except in cases where the mixture contains four or more fluid ounces.”
But of course, the majority of drug cases are 5th Degree Controlled Substance possession charges. And the ridiculous “under four fluid ounces” exception to punishing possession of water does not apply to those. So for example, smoke a small amount of a “Controlled Substance” through a bong, and now you’re a felon with a presumptive prison commitment, if they hate you (or certain people).
How can we fix this?
- Ask the legislature to repeal criminal prohibition laws; repeal references to “mixture” in Minn. Stat. Chapter 152.
- Remember this case at election time. Vote!
- Jury Nullification, or the rule of jury lenity. Jurors have the legal power to acquit, despite the facts, despite the judges instructions on the other law.
- Comply with this law by removing water sourced from rivers from home & office, including toilets, in the meantime.
Written by Thomas C Gallagher, Minnesota Drug Lawyer.