Wednesday, May 23, 2018
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A weighty matter of law

How should cocaine be weighed? First, the Ohio Supreme Court picked one way; then it reconsidered State vs. Gonzales and decided a different way.

But if the General Assembly had done its job right, the court would never have had to decide at all.

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The weighing of cocaine matters because the sentences people get for coke possession depend significantly on how much of the stuff they had. The question before the court was, which stuff: pure cocaine, or the mixture containing it? Street cocaine is normally diluted with some other white, powdery substance, so a substantial fraction of the weight in a baggie of “cocaine” may be something innocent. And whether 65 grams of pure cocaine mixed with 35 grams of corn starch counts as 100 grams of “cocaine” or just 65 can determine how long someone spends in prison.

Of course, it’s not the court’s job to decide whether it’s better to go by the weight of the mixture or have a lab figure out how much pure cocaine is in it. The court must only say what the statute passed by the General Assembly says.

When then-Justice Judith Ann Lanzinger wrote the court’s main opinion in December, she said the statute was unambiguous. So did Chief Justice Maureen O’Connor, who wrote the majority opinion in March. But Justice Lanzinger thought it unambiguously said to go by the weight of pure cocaine; Chief Justice O’Connor thought it said the whole mixture counts.

What changed between the two opinions? Two justices retired, and two others joined the court.

The statute is sloppily written. The very fact that lawyers smart enough to sit on the Ohio Supreme Court thought it clearly meant different things indicates it does not clearly mean any one thing.

And not only the justices, but the General Assembly should have realized that. The writing is simply confusing. Any legislator who bothered to read this bill closely before voting on it should have seen it was confusing.

Whichever way lawmakers wanted cocaine weighed, they should have made it clear.

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