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Marijuana Legalization in Minnesota: What Should It Look like?

Has the time come for marijuana legalization in Minnesota?

Opposing legalization is now political suicide

Opposing marijuana legalization for responsible adult use is now political suicide.  That might surprise a few.  But much has changed.

Last month Gallup reported its polling on the issue“Sixty-six percent of Americans now support legalizing marijuana.”

Democracy?  Bipartisan Majorities

And support is bipartisan.  Though more Democrats support marijuana legalization than Republicans, “Gallup found last year that a slim majority of Republicans supported legal marijuana for the first time, and this year’s figure, 53%, suggests continued Republican support.”

Pew Research Center reports similar polling, pointing out that support for marijuana legalization is now double what it was in 2000.

History doesn’t repeat; it rhymes

Students of history draw lessons from the alcohol Prohibition life cycle.  Why did it take so long to end it, even after a majority of Americans opposed it?

The five percent tipping point
Marijuana legalization at the Capitol.  Minnesota NORML.

Marijuana legalization at the Capitol. Minnesota NORML.

One answer?  The tipping point was when about five percent of the voters made legalization a wedge issue.  In other words they would disregard political party, other issues, and vote for a political candidate solely on the issue of re-legalization.  The alcohol Prohibition repeal soon followed.

Elections matter

In the 2018 general election, two single-issue marijuana legalization parties achieved major party status in Minnesota.  Their candidates for statewide office received more than the five percent threshold to qualify as major political parties.

How many elections are won or lost by less than five percent of the vote in Minnesota?  Opposition to the majority will now has a severe price: losing.

The time has come for marijuana legalization.  But what should it look like in Minnesota?

What should marijuana legalization look like in Minnesota?

The issue is Liberty, not marijuana.  Ending marijuana Prohibition is consistent with conservative political values.  Less government means more freedom.  Prohibition is a government bloat program, that destroys lives, destroys our freedom.

We the People have at least equal rights to marijuana as we do to beer and wine.  The fact that marijuana is safer than beer and wine, undercuts the Prohibitionist lie that “marijuana is a dangerous drug.”  Death by overdose happens with alcohol, but cannot happen with marijuana.  Marijuana has no toxic dose level, unlike caffeine, aspirin and many other commonly used, legal drugs.

The three legal models for marijuana 

We’ve seen three models for our legal rights to marijuana, in chronological order:

  1. The Tomato Model
  2. The Prohibition Model
  3. The Beer and Wine Model

The Tomato Model

The Tomato Model of marijuana legalization

The Tomato Model of marijuana legalization

Under the Tomato Model of marijuana laws, the people have rights to marijuana equal to our rights to tomatoes.  The law lightly regulates tomatoes.  Tomatoes are not a crime to grow, possess, or sell.

The Tomato model means laws the repeal of laws criminalizing it.  People are free to do with marijuana what they can do with tomatoes.  We call it de-criminalization.

This was the state of the marijuana laws before the marijuana Prohibition era began.   Advocates of the tomato model say we should return to this.  Of the three legal models, the tomato model is the most conservative.  It protects the People’s Liberty most.

The Prohibition Model

The writing is on the wall: Vote Against Prohibition

The writing is on the wall: Vote Against Prohibition

Marijuana Prohibition never would have happened but for the alcohol Prohibition.  As the alcohol Prohibition was winding down in the 1930s, state by state, the government Prohibition bureaucracy ramped up its anti-marijuana propaganda; much of it with appeals to racism.  They succeeded.  They tricked the public into funding a massive anti-marijuana government bureaucracy.  It was a solution in search of a problem.  At the time, marijuana usage rate was infinitesimal.  Now almost every American has used marijuana at least once, thanks to Prohibition.

Though ten states have legalized marijuana for adult use, Minnesotans still live under the shadow of marijuana Prohibition.  The government still pays police officers to break down doors, toss people’s cars, searching for marijuana.  Then we pay prosecuting attorneys to charge people with marijuana with crimes, label us criminals, strip our civil rights and lock us up.

And enforcement disproportionately impacts African-Americans, despite equivalent usage rates with other ethnic groups.  Marijuana legalization ends these social evils.

The Beer and Wine model

Wine may not be for everyone, but a crime?

Wine may not be for everyone, but a crime?

Under “the beer and wine model,” the people of Minnesota have equal rights to marijuana just the same as to beer and wine.

The metaphor works because people are familiar with beer and wine.  The law treats marijuana the same as beer and wine in every way.  It also works because marijuana is safer than beer or wine.  This undercuts opponents’ “public safety” argument.

Wherever the law now says “beer” or “wine,” we can add the word marijuana.  What could be more simple?

Step one – decriminalization
Prohibition Still Doesn't Work. NORML.

Prohibition Still Doesn’t Work. NORML.

Of course, we need to delete all criminal laws referencing “marijuana” and “THC.”  This includes deleting both from the Schedules in Minnesota’s version of the Controlled Substances Act, now in Minnesota Statutes Chapter 152.  We call this “de-scheduling.”

In addition, the criminal drug laws will be amended to delete all references to THC and marijuana.  Most of these are also in Chapter 152.

That is the decriminalization component.  For supporters of The Tomato Model, that is all we should do.

Step two – regulation

Under the beer and wine model, we not only completely decriminalize, we also enact a set of laws regulating marijuana production and sale.  Here the existing beer and wine laws guide us.

We have equal rights to marijuana as to beer and wine.  So the marijuana laws mirror those regulating beer and wine.

Conservatives and Liberty advocates may prefer The Tomato Model for marijuana laws, as we had before Prohibition.  But here history has another lesson for us.

The legal framework for alcohol was The Tomato Model before the alcohol Prohibition.  But after the repeal of alcohol Prohibition, the laws regulated alcoholic beverages.  We’ll skip the reasons for that.

Suffice it to say, strong public support now exists for re-legalizing marijuana for responsible adult use under The Beer and Wine Model.  The ten states that have legalized so far have substantially followed The Beer and Wine Model.  Marijuana legalization in the Untied States so far means decriminalized and regulated like beer and wine.

What’s the Big Idea?

The Beer and Wine Model is the big idea.  Liberty.  Equal rights.  Civil rights.  Racial justice.  These core American values support the beer and wine model of legalization, far better the evils of Prohibition.

What should marijuana legalization look like in Minnesota?  The People should have at least equal rights to marijuana as to beer and wine.  With that core principle, the rest takes care of itself.

Details Matter Too

We’ll take a deeper dive into the details of proposed legislation in the future.  But now let’s take a look a few of the important details of re-legalization in Minnesota.

Home Grow is Alright With Me

Even with regulated beer and wine, we have the right to produce beer and wine at home in small batches.  Under the beer and wine model for marijuana regulation, we can grow marijuana on our own property, in small batches.

A little Minnesota history

Minnesota laws contradict each other when it comes to forms of marijuana.

In the 1970s, the laws favored plant-form marijuana and disfavored “the resinous form,” which we now call “wax.”  Then they thought “the resinous form” more dangerous than plant-form.   The distinction remains in Minnesota Statutes definition of a “small amount of marijuana.” That definition makes an exception for a small amount of the resinous form of marijuana, which currently remains a crime.

Yet in the 2010s, the Minnesota legislature crafted a Medical Marijuana law which favored “the resinous form” (concentrates) and disfavored plant-form marijuana.  More recently they thought that the resinous form was safer than plant-form.  The legislature then approved only the resinous form, for legal use within Minnesota’s original medical marijuana program.

The public policy in these two sets of laws conflict.

A rose is a rose is a rose

The time has come to end the legal distinction between plant-form and the resinous form.  We should treat all forms of marijuana as marijuana.  It’s the same plant, the same substance.  The distinction between forms creates needless confusion.  If it made any sense, the legislature would not have contradicted itself.

Repair the Minnesota Medical Marijuana Program
The once and future medical cannabis

The once and future medical cannabis

The lack of plant-form and home grow in Minnesota’s medical marijuana program has undermined it.  Now, Minnesota’s medical marijuana program is super-expensive and out of reach for disabled, sick people.  And insurance does not cover it.

The “concentrates only” approach of Minnesota’s medical marijuana program adds unnecessary cost.  Plant-form is less costly to produce.

The lack of legal home grow for Minnesota medical marijuana patients denies access to medical care to low-income, disabled people.  They can grow their own, cheap.

Suppliers and distribution

The law of supply and demand is stronger than criminal law

The law of supply and demand is stronger than criminal law

The “bad model” at this point is Colorado, the first state to legalize.  Why?  Because it  has a super-expensive seed to retail sale surveillance regimen then meant to reassure and deter diversion.  Now that ten states have legalized for adult use, this is an unneeded expense.

If retail cost is too high, the underground economy will continue.  We need to destroy the underground economy using the laws of economics, not failed criminal laws.

Suppliers and distribution.  The existing two medical suppliers and existing legal hemp growers are places to look for beginning suppliers.

Over-taxation

In some other states, over-taxation is a problem.  If retail cost is too high, the underground economy will continue.

Equal rights, and justice:  The “beer and wine model” comes to the rescue again.   We should not tax marijuana more than the beer and wine.  The “sin tax” on beer and wine is already sky-high.

Transitional issues

What are transitional issues?  These are issues that are big problems as we transition from a Prohibition Model, to a Beer and Wine Model of marijuana regulation.   But we expect that ten years after legalization many of these issues will subside.

There are many transitional issues.  Let’s mention a few.

Automatic record voiding of convictions and expungement

Minnesota’s legalization law should include automatic vacating of convictions and public records expungement.

Today, most people who qualify for criminal record expungement never file a Petition for Expungement in court due to cost barriers.  The law should require the government to automatically vacate every criminal conviction related to marijuana or THC, and expunge those public records.  We should remove the burden from the victims of Prohibition and put it on the government.

Many do not know that a typical Minnesota court expungement Order will not fully restore civil rights under federal law.  The conviction itself must be undone, vacated and dismissed, as if never happened.  We must do that, in order to fully restore all civil rights in a way the federal laws will recognize.  A simple sealing of public records will not fully restore civil rights.

Amnesty for Drug War P.O.W.s

We should immediately release all people locked up for any marijuana or THC crime, from jail or prison.

Force the Minnesota Department of Corrections to follow the law

When a court sentences a person to prison, it strips them of their civil rights and are commits them to the Minnesota Department of Corrections (DOC).  The Minnesota DOC revokes supervised release for legal medical marijuana users.  We must stop this Minnesota DOC policy and practice.   We need a statute to reign in this Minnesota DOC violation of existing Minnesota law.

What do you think?

Drop your comment below.

About the author

Thomas C. Gallagher, Minnesota NORML

Thomas C. Gallagher, Minnesota NORML Member

Written by Thomas C. Gallagher.  Gallagher has worked on re-legalization issues for over 30 years.

He is a former Chair of Minnesota NORML and is founding Board Member, since 2011.

Gallagher is also a criminal defense lawyer in Minneapolis with a heavy portion of marijuana defense cases.

How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips

The other day I was talking to a prosecutor.  I let him know that my objective was to keep my client’s public record clean of words like “marijuana,” “drug paraphernalia,” and “criminal conviction.”  He responded mischievously with “You know how he could avoid all that don’t you?  Don’t get caught.”  He was joking, but like many jokes there was some truth in it.

“I’m late, for a very important date.”

“Officer, am I being detained? I’m late, for a very important date.”

As of this writing, eight states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older; and, the majority of the U.S. population now lives in a state with legal medical marijuana.  We should all know by now that marijuana is safer than alcohol.  There is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.   But in Minnesota in 2017 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.

What can you do to reduce the chance of getting caught? Here are nine tips:

  1.  Situational awareness.  Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.  Complacency can set in.  If it hasn’t happened yet, it never will.  Right?  The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.  There will be a traffic stop.  When it does happen; marijuana should not be in the car.  If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).
  2.   Odor.  The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned.  This is prone to abuse by police officers since it’s impossible to verify.  Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car.  And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car.  Have you or anyone you know experienced “nose blindness?”  A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person.  The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person.  But non-users can smell it.  It’s best to assume that if you’ve been smoking it that day, there may be odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)
  3.   Consent?  “No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches.  Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.  Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement.  One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”   If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.
  4.   You can do both: don’t lie and don’t admit. How?    Remain silent.  Or if words come out of your mouth make sure that they are not lies, and do not relate to illegality.  More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is.  Wrong!  Instead, remain silent – meaning words are not produced by you.  Tightening your lips may help your resolve.  If you do say something, change the subject and avoid talking about whether there is marijuana in the car or not.  And again, do not consent to a search.  Police will try to make you think: “Busted.  The jig is up. May as well come clean now.  Give up.  You cannot win at this point.”  But don’t believe it for a minute!  You need to be prepared.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.
  5.   Unlawfully prolonged detention: “Am I free to leave?”  Here is the scenario.  You’re stopped by police for a headlight out, or speeding.  Normally it takes five or ten minutes for a police officer to complete the process, hand you the ticket, encourage you to pay it without taking it to court, and walk away.  You understand that to mean that the government intrusion upon your liberty is now over and you are “free to leave.”  Now, let’s change the scenario.  You’ve been stopped for something normally resolved with a traffic ticket within five minutes, but this time the officer is prolonging the detention.Is that legal?  Suffice it to say that the courts will apply a balancing test under the “totality of the circumstances” to determine whether they think the greater intrusion upon your Liberty interest was balanced by a greater level of reasonable suspicion of criminal activity.  But one of the factors courts will consider is: “to what extent did the person acquiesce to the detention vs. assert and communicate a desire to end it and leave?”  A common game played by police in court is to claim that “at that point, the person was free to leave and the prolonged time was consensual.”  If believed, then the prolonged detention might need less justification, fewer facts supporting a reasonable suspicion of criminal activity. Since “Fleeing a police officer” is a crime in Minnesota – whether in a motor vehicle or on foot – whether a person is begin “detained” by police or not, ought to be a simple black and white question.  Either you are “free to leave” or not.  The best way to make a record of that is to ask: “Officer am I free to go now?”  And don’t just do it once.  Do it more than once.  Say it loud and clear, for the camera and microphones.  This will help your lawyer challenge the legality of the search and arrest later, should it come to that.  At times it can be a good idea to just start slowly walking away, to force the police officer to tell you to stop.  (Yes, you can walk away from a car stop even if you’re not the passenger.)
  6.   “You have the right to remain silent.” When you hear that, that is your cue to – what?    It’s your cue to stop forming words and allowing them to escape your mouth!  If you want to say anything, you can say:  “Officer, I realize you are doing your job but I am not a lawyer or a police officer.  I need to assert my legal right to remain silent, and to consult legal counsel before answering questions or talking about this situation at all.”  Repeat as necessary.  No matter what they do or say, they cannot require you to speak.  So don’t.  If police direct you to show your hands, lie down, hands behind your back, stand over there, and the like, follow their commands.  But do not speak.
  7.   Field Exercises. Sometimes police may want to build a case for impaired driving.  When they do, they will ask you to perform what they optimistically term “Field Sobriety Tests.”  These are not scientifically valid and are designed to incriminate.  Even completely sober people have a difficult time “passing” them.  What to do?  Don’t!  Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “Horizontal Gaze Nystagmus” eye test.  You can and should refuse to do any of these.  When you do, the police officer may invite an excuse.  But don’t take that bait.  Any excuse could be incriminating, even if falsely.  Instead you can say: “Officer, I am aware of my legal rights and I respectfully choose not to do any field exercises or tests.”  You may get asked repeatedly.  If so, just keep repeating that you choose not to do them – no excuses.  (Who cares if you have one leg! That’s beside the point.)  It’s your legal right.  (Note that if the police officer has factual reason to suspect impaired driving and requests that you blow into a Preliminary Breath Test (PBT) machine and you refuse to blow, you can be arrested in Minnesota for that refusal.)
  8.   Smile, you’re being recorded. From the beginning of a traffic stop, to sitting in a squad car, to the police station or jail, it’s best to assume that you and all you say are being recorded.  This recording may later hurt you, or help you.  Even when alone or with another person in the back of a police car, this is normally recorded – even when no police officer is in the car.  Phone calls from jail are almost always recorded for potential later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.
  9.   Keep your cool if arrested. Hitting the panic button will only make it worse.  Police may try to exploit your trauma and emotional upset.  Remain calm.  The long game can be won, by playing defense in the short game.  You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be a bail bond agent.  Most people will be able to get out with a few days or less.

Thomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.

Have a comment?  You are welcome to leave your comments and responses below.

Thomas C. Gallagher Elected Chair of Minnesota NORML Board of Directors – Marijuana Legalization in Minnesota

On September 16, 2017 the Board of Directors of Minnesota NORML elected Thomas C. Gallagher to the position of Chair of the Board.  Gallagher is a Minneapolis Criminal Lawyer who twice campaigned for election as a Representative in the Minnesota House in District 61B (incumbent Paul Thissen) in 2014 and 2016.  He was the endorsed candidate of Republican Party of Minnesota in both election cycles.

Minnesota NORML is a non-partisan Minnesota Nonprofit with 501(c)(4) status,” Gallagher noted.  “Our goal is legal marijuana in Minnesota for responsible adult use.  Minnesotans should have equal rights to cannabis as to beer and wine.  This means age 21 and older, taxed and regulated the same as beer and wine, and legal small batch home production.”

Thomas C. Gallagher, Chair, Minnesota NORML

Home grow” Gallagher said, “is essential.  Ending marijuana prohibition is only incidentally about marijuana; it is really about personal freedom.  We want to empower the People, support Liberty for all.  With legal home grow, anyone can grow their own cannabis for medicinal or personal use with little money.  Freedom should not be limited to people with money.”

“Now that all major polling shows majority support for legalization of marijuana (and a super-majority for medical marijuana), why – in a democracy – is the will of the People not yet enacted into law?” Gallagher asks.

If our elected officials lack the political courage to enact the will of the People, then we say “Let the People Decide!”  Bills in the Minnesota legislature would place a constitutional amendment on the general election ballot to, finally, legalize marijuana for responsible adult use like beer and wine.  Even politicians unwilling to support legalization should be able to support democracy, the vote and “allowing” the People to decide.  We support these Bills.

“It’s not inevitable.  There are vested interests who now profit from the current Prohibition regime fighting hard to reverse the progress we’ve made, and to stop the return of Freedom to the People of Minnesota,” Gallagher warned.  “’How soon will it be legal?’ people ask me.  ‘How soon will you join us working hard to make it happen?’ is my smiling reply” says Gallagher.

Minnesota NORML holds monthly Members Meetings and other events and activities to help people connect and get involved.  For further information:
https://mnnorml.org/
https://www.facebook.com/mnNORML

#LetThePeopleDecide

Legislative Update: The Minnesota Bong Water Crime Case

Remember the recent Minnesota Supreme Court case that took a literal interpretation of a statute – to an absurd result – ruling that water could enhance the severity of a drug crime?  It was a bare majority decision, 4-3, with a concurring opinion and strongly worded dissents.  After the majority, concurring and dissenting opinions are all tallied, five out of seven wrote that the legislature should amend the statute to cure the injustice.  The case ruled that Bong Water (water 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 (30 years of prison maximum), though it contained only trace amounts of illegal drugs.

Tap Water Contains Drugs

The case is Minnesota v  Peck, Minnesota Supreme Court, October 22, 2009.  The blog article here, written the day the opinion was published is: Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess.

The case gained worldwide infamy.  If trace amounts of criminalized drugs in bong water could be a crime based upon the weight of the water “mixture,” then would not trace amounts of illegal drugs in our drinking water also be a crime to possess?  And if that is the case, which of course it must be, then is not every citizen of Minnesota a drug criminal – by virtue of possessing river sourced tap water?  (Those with well water presumably can rest easy, without fear of a drug-police home invasion.)

A Bill in now being considered by the Minnesota Legislature, for the Safe Drug Disposal Act is an attempt to ameliorate the problem of pharmaceutical drugs in our drinking water supply, and rivers.  It is a crime in Minnesota to possess prescription drugs without a prescription for those drugs.

Will Minnesota lawmakers heed the call of the Minnesota Supreme Court and public outrage and undo the “Minnesota Bong Water Case?”

A Bill has been introduced in the Minnesota House, H.F. No. 2757, to amend Minnesota Statutes section 152.01, subdivision 9a, to read:

Subd. 9a.  Mixture.  “Mixture” means a preparation, compound, mixture, or substance containing a controlled substance, regardless of where purity is relevant only when weighing the residue of a controlled substance.

If adopted into law, this would bring back proportionality of the severity of a drug crime to quantity.

Advocates of drug legalization (regulation and taxation) may have mixed feelings about this reform.  Yes – it would cure an outlandish, gross injustice to people facing exaggerated convictions and prison terms based upon possession of water or other non-drug media.  On the other hand, the Prohibitionists really shot themselves in the foot on this one.  The Minnesota Bong Water case has helped undermine what public confidence there was in criminal drug laws and their enforcement.  As stated in the dissent in the Peck case:

“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.”

To the extent the public confidence in our criminal justice system is undermined by Peck, the Minnesota Bong Water Case, and its literal interpretation of the statutory definition of a drug; this may hasten the day when common sense will finally prevail, with the Repeal of all drug Prohibition laws in Minnesota.

Written by Thomas C Gallagher, Minneapolis Criminal Defense Attorney.

Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess

Water Bong

Water Bong

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.  The case is Minnesota v  Peck, A08-579, Minnesota Supreme Court, October 22, 2009.

The majority opinion takes an absurd literal view, arguing in essence that any amount of a substance dissolved in water makes that water a “mixture” containing that substance.  Perhaps.  But, since Minnesota’s criminal prohibition laws are organized to make greater quantities of drug possession a more serious crime than smaller quantities, such a simple-minded view defeats the purpose of the quantity-based severity levels.

If a person possessed one-tenth of a gram of methamphetamine, they could be charged with a Controlled Substance Fifth Degree crime, with a five-year maximum.  But – dissolve the one-tenth of a gram in 26 grams of water, on purpose or by accident, and now under this new decision from the Minnesota Supreme Court, that can be prosecuted as Controlled Substance First Degree – with a 30-year prison term.  Just add water for five times the sentence!  In the case of marijuana, a non-criminal amount under 42.5 grams smoked through a bong could give the police and government lawyers the legal right to charge a felony drug crime with possible prison time – not for the marijuana, but for the bong water. This defeats the legislative purpose of treating larger quantities of drugs more harshly.  Worse – it makes no sense.  It is irrational.  It leads to an absurd result.

What is a bong?  It is a water pipe.  A water pipe, such as a bong, can be used to smoke tobacco, marijuana, methamphetamine (as in the Peck case), or anything that can be smoked.  Smokers view the water which has been used to filter and cool the smoke as something disgusting, not unlike a used cigarette filter, to be discarded – sooner or later.  The used water is not commonly used for any other purpose.  Apparently a naive or misguided police officer testified otherwise in the Peck case, and – amazingly -the four in the majority of the court appears to have given that testimony credit.

In general, courts have made efforts to prevent police and government lawyers from having the ability to manipulate the facts or evidence in such a way as to either create criminal liability for targeted people, or, to increase the penalty the target might suffer.  Here is an instance to the contrary.

If the government wants to charge a more serious drug crime – what to do?  Just add water!  (Water is heavy – heavier than drugs.  Drug crimes are based on weight.  Water is not currently defined by law as an illegal drug.)

Frequent news reports remind us about the drugs in the rivers and most of our municipal water supplies (not concentrated enough to hurt us, we are reassured).  Type “in water supply” into your favorite internet search engine and you can read thousands of reports of scientific studies documenting this.

As a result, if you have water sourced from a river, like we do in Minneapolis, then you could now be charged with a Minnesota Controlled Substance First Degree Crime (toilets tanks hold way more than 25 grams of water with illegal drugs dissolved).  This can be a particularly troubling variation of the trace-drug criminal case, where only a trace of suspected illegal drugs is found.  Trace cases can be problematic, in part because there may not be enough of the suspected material to be tested twice for its chemical identity. 

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 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 one gram mixed in water be treated the same as one kilogram (1,000 grams) in powder form?

What can be done about this particular absurd injustice?

  1. Ask the legislature to repeal the criminal prohibition laws.
  2. Remember this case at election time.  Vote!  You can vote for or against Minnesota Supreme Court candidates, including incumbents.
  3.  Jury Nullification, or the rule of jury lenity.  Jurors have legal rights to acquit, despite the facts, despite the judges instructions on the law.  Just do it!
  4. Remove all water sourced from rivers from your home and office, including toilets, in the meantime.

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.”

It’s a good read (link at the beginning of this article, above).  It is shocking that four in the majority could have disagreed with the dissenters.  Hopefully, this is the beginning of the end of the 100 year experiment in using criminal blame as a strategy to solve a public health problem.

It’s time to change the laws.  This absurdity makes it all too clear. Written by Thomas C Gallagher, Minneapolis Drug Lawyer

Race and Criminal Injustice

Is there credible, scientific evidence to support the existence of “race” among humans?  No.  Does that mean “race” does not matter in our society?

“Race” matters in our society – despite its lack of biological basis in fact – because it is a human, social construct that influences how people perceive and treat each other.  It seems that in the United States we wish that we were beyond race; but the superstition lingers and affects us all.  How does it affect our human efforts at justice in the criminal courts?

Our sense of identity – who we believe ourselves to be, what and who we identify with – has a significant influence over how we perceive events, and other people.  Race, gender, and other socially defined demographic variables are among the ideas that influence our sense of identity, and our perception.

In the United States, our consensus seems to be that judging others based upon “race” is wrong.  People resist recognizing (perceiving) that they themselves could or would do something wrong.  As a result, we as a people tend to believe that attitudes about race do affect other people, but not us as individuals.  Ironically, this kind of projection of an unfavorable characteristic which we deny in ourselves and project onto “the other” is a the key aspect of racial stereotyping.  However we define ourselves and the groups with which we identify as members; we tend to think simplistically – “we” are good; “they” are bad.

Another problem here is fear of the unknown.  We feel that we know ourselves, and the cultural milieu from which we come.  “The other,” the outsider – who comes from a different culture, a different experience – we may lack understanding.  We may think that “they” are unknown to us.  They therefore may seem unpredictable to us, which can lead us to fear them.

The there is the problem social psychologists have called “the self-fulfilling prophecy phenomenon” – captured well in the aphorism “what a fool believes, he sees.”  If a person believes a theory about a member of a perceived “other” group, scientists have learned that the person will ignore all facts inconsistent with the theory and only perceive the facts consistent with the theory – even if 99% of the facts contradict the theory, and only 1% of the facts support it.  Because of this phenomenon, people generally will deem the theory proven true, even though 99% of the evidence disproved it!  If the theory is about people of a perceived “race,” then the result is a racial stereotype.  People who believe racial stereotype theories defend them based upon the argument that they are true, or partly true (because they believe them to be true).  But examined against all of the facts, they are not.

police light bar

police light bar

One common racial stereotype involves the theory that minority-race people are more often committing crimes than majority-race people, and that is why there is a greater percentage of the minority race community being arrested, charged with crimes, convicted, and sentenced to prison; as compared to the majority-race community.

Of course – numerous studies have been done, by the American Bar Association and others, proving otherwise.  We know that African-Americans use illegal drugs at the same per capita rate as does the general population in the United States.  Yet, people socially defined as African-American are arrested, criminally charged, convicted, and incarcerated at a vastly higher rate than non-African-Americans.

“The National Institute of Drug Abuse estimated that while 12 percent of drug users are black, they make up nearly 50 percent of all drug possession arrests in the U.S. (The Black and White of Justice, Freedom Magazine, Volume 128).”

from article: the Truth About Black Crime, R. Jeneen Jones, Jan 16, 2000.

And the problem goes beyond illegal drug crime cases:

Figure 1. Racial Disparity Matrix

Column A                Column B                   Column C                  Column D
Decision Point        % African-                % at preceding       Disparity
                                      American                  decision point         ratio
                                                                            African-
                                                                            American

 Total Population   15                                   N/A                               N/A

Arrest                        30                                  15                                   2.00

Detention                  35                                  30                                   1.17

Prosecution             37                                  35                                   1.06

Conviction               45                                   37                                  1.22

a. Probation          38                                  45                                   0.84

b. Incarceration 50                                  45                                   1.11

source: chart from a 2000 report from the Sentencing Project at page 29.

Given the evidence that people are being treated differently by the criminal justice system based upon “race,” it is clear that the reason is not that minority-race people are committing criminal acts at a higher rate than majority-race people.  After all, the illegal drug use rates are the same, but African-Americans are being disproportionately arrested, charged, convicted, and incarcerated:

  • African-Americans are arrested at much higher rate than people the percentage of all races committing crimes;
  • Of those of all races arrested, a disproportionate percentage of African-Americans are being charged;
  • of those of all races charged, a disproportionate percentage of African-Americans are being convicted;
  • of those of all races convicted, a disproportionate percentage of African-Americans are being sentenced to prison.
  • At each of these significant stages of the exercise of human discretion – by police, by prosecutors, by jurors, by judges, African-Americans are being treated unfairly, and more harshly than the general population.   Yet we must assume that nearly every individual exercising that discretion sincerely believes their decision is not based upon race.  How can this conflict be reconciled?

Though few people view themselves as racist – few police, few prosecutors, few defense attorneys, few judges, few jurors – the aggregate result is one of a strong, unfair impact based upon a person’s “race.”

Putting to one side the racist origins in history of Drug Prohibition laws as well as the severe disparate impact of them on minorities today; the effect is seen across the board for every type of criminal case.  Space does not permit a serious discussion here of the solutions.  Still, here are a few thoughts about solutions.

Awareness of the problem may be a first step.  Be suspicious of any theory based upon race – or race-code words.  And when you hear one of those, challenge it.  When we develop our empathy for others, and get to know and love other cultures, we are on the path towards a solution.  In the end, society is made up of individual people.  We can change ourselves.  We can change our society.  We can make the world a better, and more fair place.  Liberty for one, is liberty for all.

by Thomas C Gallagher is a Criminal Lawyer in Minneapolis.