Bong Water

State v. Peck, Minn.S.Ct. 10/22/2009.  In a 4-3 decision, the Minnesota Supreme Court reverses the Opinion of the Court of Appeals that had held that bong water was not a “mixture” under the controlled substances act.  Apparently, it is.  Here’s how the appellate court sets the tone:

The issue in this case is one of statutory interpretation, not whether we approve of the prosecutor‟s charging decision. The dissent clearly disagrees with the prosecutor‟s decision, and there is certainly room to debate the wisdom of that decision. But we may intrude onto the executive branch charging function only in very limited circumstances.  State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996) (“Under established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor‟s charging authority.”). While the dissent protests, based on commentary from a United States Senator from the Commonwealth of Virginia, that the State‟s charging decision here “is counterproductive to the purposes of our criminal justice system,” the dissent makes no effort to show that the decision here satisfies the standard we articulated in Krotzer.

A “mixture” is a “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.”  Minn.Stat. 152.01, subd. 9a.  Water in a bong that contains methamphetamine is a “mixture.”  End of discussion.  Sort of.  Justice Paul H. Anderson began his dissent this way:

I respectfully dissent from the majority‟s decision for two reasons. First, I conclude the law does not support the result reached by the majority. 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 majority reaches its conclusion because it misapplies the plain-meaning rule and fails to consider the statutory language in its application to the facts at hand and in the context of the statute as a whole. The result is a decision that has the potential to undermine public confidence in our criminal justice system.

Second, I dissent because the decision of Rice County to charge Sara Ruth Peck with a first-degree felony offense—an offense that has a presumptive sentence of 86 months in prison—for possession of two and one-half tablespoons of bong water is not only contrary to the law, it is counterproductive to the purposes of our criminal justice system.

Justices Page and Meyer joined in this dissent.  Justice Anderson’s concluding paragraph is worth of a reprint:

But, we as a society and those of us in the criminal justice system need to do a better job of assessing risk when determining how to charge an alleged wrongdoer and what punishment to impose on a wrongdoer who is found guilty. This need for proper risk assessment is particularly critical when it comes to punishing non-violent drug offenders who are presently swelling our prison populations beyond capacity. I believe that the Minnesota Legislature attempted to make such a risk assessment when it enacted chapter 152, which uses weight to distinguish between less serious and more serious offenders. I also believe the District Court Judge, Thomas Neville, and the Minnesota Court of Appeals properly attempted to apply this law based on its intent and plain common sense. On the other hand, Rice County is taking this law in what I believe to be an improper and counterproductive direction that perpetuates the incarceration crisis that Senator Webb has described. Unfortunately, today‟s decision by the majority affirms Rice County‟s error and takes us in the wrong direction under the law and under good public policy. Therefore, I express my strong dissent to the decision of the majority.