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Joking aside, is bong water a drug in Minnesota?

The recent exchange over bong water between Gov. Tim Pawlenty and Jon Stewart was hilarious, but there’s an interesting — and unresolved — legal question at its core.

To most people, the two minutes Gov. Tim Pawlenty and host Jon Stewart spent arguing about bong water during the governor’s appearance on “The Daily Show” last week probably looked like two middle-aged men cracking stoner jokes.

Stewart asked Pawlenty about his recent veto of a bill that would stop Minnesota prosecutors from considering the weight of the water in a drug pipe when calculating how severe a crime to charge someone with. After a little good-natured jousting — “You ever drank bong water, Jon?”–the governor conceded he killed the measure because he wanted to leave police “who get a bad apple…a little extra leverage.”

The exchange was hilarious, but there’s an interesting — and unresolved — legal question at its core: Is bong water part of the pipe or a drug? Last fall, the state Supreme Court opined [PDF] that Minnesota law is too vague on the point, and suggested the Legislature clarify its intent.

During the recently concluded session, a bill explicitly stating that the weight of the water can’t be counted passed with bipartisan support. Pawlenty’s possibly tongue-in-cheek explanation for his subsequent veto: The measure “waters down current criminal justice practices.”

Critics counter that the governor left Minnesota’s criminal justice system at risk of creating serious inequities. It’s generally accepted that two people with the same criminal history who commit the same offense should face the same charges and get roughly the same sentence, the severity of which should reflect the crime. To that end, most legal jurisdictions have some form of sentencing guidelines.

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But Pawlenty’s veto means justice meted out to drug offenders now can vary widely depending on where they are arrested and how they choose to consume their drug of choice. Someone caught smoking a joint may face a fine, while someone caught using a bong to smoke the same amount of marijuana may go to prison for years.

The case of Sara Peck
The controversy stems from a 2007 raid on the home of a woman the Rice County Sheriff’s Department suspected was a methamphetamine dealer. Inside Sara Peck’s house, deputies found only trace amounts of meth, but they did find a lot of drug paraphernalia, including a pipe containing two and a half tablespoons of pinkish liquid.

If prosecutors had charged Peck, a first-time offender, with possession of drugs per se, they would have charged her with a petty misdemeanor, punishable by a fine of $300, which would not have gone on her record.

But when the water turned out to contain drug residue, they took the highly unusual step of charging her with possession of the bong water. The weight of the water raised the crime to a first-degree felony with a presumed sentence for a first-time offender of 86 months.

Normally, Peck would have had to possess more than 24 grams of meth — the equivalent of up to 240 doses — to merit a first-degree felony charge.

Like most states, Minnesota bases the severity of criminal charges on the weight of the drugs in a suspect’s possession. People caught with small amounts of drugs are presumed to be users who merit less punishment. Those caught with quantities large enough for distribution are dealt with as dealers who, because they are dangerous to public safety, should be dealt with more severely.

Because illicit drugs are often cut with legal substances, the law specifies that the weight of the overall mixture should dictate how much is found to be in someone’s possession. Otherwise, offenders would face different consequences based simply on the purity of the drugs they bought.

The case spent two years working its way to the state Supreme Court, which last fall ruled 4-3 that prosecutors could count the bong water. Minnesota law, the majority reasoned, defines illicit drugs as any mixture containing a controlled substance.

And it didn’t matter whether Peck would or could consume the tainted water. “The issue in this case is one of statutory interpretation, not whether we approve of the prosecutor’s charging decision,” the opinion, [PDF] authored by G. Barry Anderson, noted.

“Absurd,” the dissenters countered. The disparity in the severity of the sentences Peck could receive depending on the crime she was charged with was too great, and the more serious sentence was hugely exaggerated compared to the crime. If she were convicted of the first-degree felony, Peck would face more time than someone who had 2,000 doses of cocaine.

“Bong water is not marketed or sold by dealers, large or small, nor is it purchased by consumers,” wrote Justice Paul H. Anderson. “It is not even ordinarily consumed. Bong water is usually discarded when the smoker is finished with consumption of the smoke filtered through the bong water. A person is not more dangerous, or likely to wreak more havoc, based on the amount of bong water that person possesses.”

‘Unreasonable extreme’
The two sides agreed on one thing: The Legislature needed to clarify the law. Lawmakers on both sides of the aisle concurred.

“Prosecutors in the American judicial system have a lot of discretion in what they charge,” explained Ted Sampsell-Jones, a professor at William Mitchell College of Law who helped to draft the bill, which was introduced by Rep. Phyllis Kahn, DFL-Minneapolis, and Sen. Sandy Pappas, DFL-St. Paul.

“There’s some amount of that always around in criminal prosecutions, but this takes that to an unreasonable extreme,” he added. “It shouldn’t be up to a single person to say what should happen to Sara Peck. You want the democratic system deciding what should happen to her.”

When legislators create distinctions between types of criminal conduct, they must have a rational basis for doing so, explained Ted Sampsell-Jones, and “there’s no rational basis for treating a bong smoker differently than a joint smoker.”

And what of Pawlenty’s desire to give law enforcement an extra tool to use to go after “bad apples”?

“If we’re going to do that, then it should be the same for everyone,” said Sampsell-Jones. “If anyone who has any meth at all should go to prison for seven years, so be it. You can debate that, but everyone should agree two people who do the exact same thing should get the same time.”

A lawyer himself, Pawlenty probably understands this, “But if he signs the bill he opens himself up to criticism that he’s soft on crime,” Sampsell-Jones noted.

Is bong water paraphernalia or a drug? Methamphetamine can be so addictive users have been known to store their own urine to drink in case they run out, according to Kirk Hughes of Hennepin County Medical Center’s Regional Poison Center.

But he’s never heard of someone using a water pipe to smoke the drug and he’d be surprised if the trend caught on simply because most addicts won’t take the time.

For his part, Stewart took a stab at explaining to Pawlenty that marijuana smokers won’t touch the stuff — although sometimes it’s funny to put bong water in empty beer bottles and watch your stoned friends find them.

“My point is, bong water is, uh, very heavy, but it’s not part of the drug thing,” he explained. “You’ve really got to go with what’s in the bowl. It’s a big issue.”

The audience cheered, but Pawlenty refused to cede ground. “This is a pro-bong-water audience,” he jibed.

“Dude,” Stewart intoned. “You have no idea.”

Beth Hawkins writes about criminal justice, schools and other topics.