Courts may just say no to drug tax
When fans of the Bonnaroo summer music festival in Tennessee arrive at the gates, they are searched. Anyone caught carrying drugs not only gets a summons to appear in criminal court but also receives an on-the-spot tax assessment. At a nearby booth they are required to pay a tax on the illegal substances, which are then seized. If they don’t have enough cash, ATM machines are provided for their convenience.
The money collected at Bonnaroo makes up part of the $3.5 million that Tennessee has raised since its Unauthorized Substance Tax was adopted in 2005. Tennessee is the latest of at least 21 states to tax illegal substances to help fight the war on drugs. But opponents of these laws, questioning their constitutionality and the feasibility of enforcing them, hope that a lawsuit pending in Tennessee may lead to an end to these laws nationwide.
The case is typical: Jeremy Robbins was arrested in March 2005 on charges of attempting to bring two tons of marijuana into Tennessee. The federal authorities seized what drugs they could, charged him and notified the Tennessee Department of Revenue, which immediately assessed Robbins a fine of $1.1 million for unpaid drug taxes. Robbins argued that the fine was a punishment rather than a tax and that it violated his Fifth Amendment right to not be punished twice for the same crime.
A Tennessee chancery court agreed, ruling last July that the law violated Robbins’ constitutional rights. The state has appealed the decision and is awaiting a hearing date in a state court of appeals.
“We’re hopeful,” said Richard Holcomb, Robbins’ lawyer. “But in fairness, it could go either way.” Holcomb explained that the same arguments have been used to challenge a tax on unauthorized substances in a number of states, but that only about half of the courts had ruled that the taxes were unconstitutional.
A decades-old federal tax was overturned in 1969, when writer and psychologist Timothy Leary, a proponent of psychedelic drugs, successfully argued that the law violated his Fifth Amendment protection against self-incrimination. At the time, drug users had to provide personal information when purchasing drug tax stamps to attach to their drugs’ packaging--information that was then passed on to law enforcement agencies. Soon after the law was overturned, Congress passed the Controlled Substance Act, criminalizing the possession of drugs like marijuana, methamphetamines and cocaine.
But in the frenzy to fight the war on drugs in the 1980s, states began to adopt their own updated versions of the drug tax to provide extra financing for anti-drug initiatives.
Tennessee’s law is modeled after North Carolina’s program, which has collected more than $82 million since 1990, more than any other state. The law requires drug dealers and buyers to affix stamps, bought from the state, on each package of drugs. Anyone carrying more than 42.5 grams of marijuana is expected to buy a $3.50 stamp for each gram. Other drugs, like cocaine and steroids, carry heavier fees.
Proponents of the law point out that as much as 75 percent of the tax revenue is given directly to law enforcement agencies to help investigate the drug trade. Virginia recently tried to adopt a state drug tax for the same reason.
“A lot of money is spent on very expensive, often very dangerous undercover operations to fight drug trafficking,” said state legislator Robert Hurt, who sponsored the bill in Virginia. Most of the tax revenue, he said, would go toward buying law enforcement surveillance and protective equipment.
But opponents of the tax argue that enforcing the law is unconstitutional and is a costly waste of government resources. Drug dealers are unlikely to approach one government agency to pay tax on a substance that would get them in trouble with another government agency, said Paul Messino, the author of a report on these laws that was released in February by The Reason Foundation, a libertarian think tank. As part of his research, Messino said he called North Carolina’s Department of Revenue and explained he had 200,000 pounds of marijuana coming into the state for which he wanted to buy stamps. The person he spoke to simply asked for his mailing address.
While the law prohibits the Department of Revenue from sharing his information with the police, Messino said, “Was I really supposed to believe that they wouldn’t tell the police that 200,000 pounds of marijuana was on its way into the state? If I was a drug dealer, I wouldn’t believe it.”
So far, drug dealers and users do seem to be wary of the law. Tennessee has only sold 799 stamps and most of those were to stamp collectors. Ten years ago, attorney Robert Henak successfully argued that Wisconsin’s drug tax violated self-incrimination protections, leading the state to revise the law, which was later ruled unconstitutional again. Today, Henak collects those stamps.
Nevada has sold only a handful of stamps and when Henak called to buy one for his collection, the revenue officials couldn’t recall having printed any. “I guess they just lost track of the stamps,” Henak said.
For many states, the real money is in the tax evasion fines, not in stamp sales. When Virginia recently tried to introduce its tax, Hurt expected that within six years, Virginia would make more than $750,000 a year this way.
The bill did not pass, but it was this type of thinking that frustrated The Reason Foundation and the National Organization for the Reform of Marijuana Laws. In testifying against the Virginia bill in January, the president of the state’s chapter of NORML, Michael Krawitz, argued that the tax was just a grab for money and wouldn’t help treat addiction or curb drug use.
“It’s ‘throw out any attempt to get people off the drug, we’ll just put our hands next to the drug dealers hands to make some extra money,’” Krawitz said.
Henak hopes that with the state legislatures in Virginia and Arkansas recently deciding not to adopt drug tax laws, and court rulings overturning laws in eight other states so far for violating constitutional rights, the demise of the “crack tax” could be nearing.
“It was a fad in the mid-to-late '80s and early '90s,” Henak said. “It was just a fad that I don’t think anyone thought through very well. They wanted to look tough on drugs but ended up doing something really stupid.”