To hold, however, that Montana’s drug tax is not exempt from scrutiny under the Double Jeopardy Clause says nothing about whether imposition of the tax is unconstitutional. “Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.” Helvering v. Mitchell, 303 U.S. 391, 399 (1938) (emphasis added [by Justice Stevens, not Xrlq]).

I would like to see this case push forward even more on the laws allowing for seizure of a person’s entire assets after a drug arrest but before any conviction. That is so blatantly unconstitutional, but government and law enforcement make so much money from this tactic, they support it and the public won’t support a review of the law for fear of appearing to support the sale of illegal drugs.

The Supreme Court has ruled against a marijuana tax law under double jeopardy in the past
(See Department of Revenue of Montana vs. Kurth Ranch). The key in that particular case was that the tax was clearly of “penal and prohibitory intent rather than the gathering of revenue.” Justice Stevens made it clear that high taxes alone, or taxing an illegal product, or even an attempt to use the tax as a deterrent, wouldn’t necessarily make a tax double jeopardy. But in the case of Montana vs. Kurth Ranch, “Persons who have been arrested for possessing marijuana constitute the entire class of taxpayers subject to the Montana tax.”

Since then, the states have gotten a little smarter in how they word their marijuana tax laws and even pretend that they have provided a way for people to actually come in and buy the stamps (although in actual fact, the only ones who do so are collectors and the state has little actual belief that illegal drug sellers are buying them). This seems to have given many state supreme courts an out based on Stevens’ language in Montana. The Kentucky Supreme Court ruled against double jeopardy in 1998 saying that the tax “is not contingent on the commission of a crime.” A similar ruling came down in Kansas.

However, in Indiana, (Bryant v. State of Indiana), the Indiana Supreme Court found the state’s drug tax punitive in nature and forbade levying a tax assessment and pursuing criminal protection in the same case. (Link)

In Arizona, an enterprising drug dealer went out and purchased a $100 drug dealing “license” issued by the state prior to his trial and the judge threw out his conviction on dealing because he said the state couldn’t punish him for doing something they had licensed him to do.

The drug tax stamp is still a hodgepodge of various state legal opinions dancing around the murkiness of Montana v. Kurth Ranch. Double Jeopardy may end up being a hard sell in the higher courts in Tennessee, but I wouldn’t rule it out too quickly.

If it’s unconstitutional, why does it apply only in one case?

Because that’s how lawsuits work. At the trial or district court level, the decision binds only the parties, and only with respect to the case before that court. Appellate decisions are binding precedent, lower court cases are not.

SayUncle: Like the courts, only faster.

Slow down, cowboy, the appeals are just beginning. If the judge’s actual decision reads anything like the snippets quoted here, the chances of this ruling surviving on appeal are slim to none, and Slim just left town. Take, for instance, this:

In issuing his decision, Dinkins, the chancellor, ruled that buying the stamps violated a person’s right to avoid self-incrimination. He noted that law enforcement could use the purchase of stamps against people if they obtained the information independently from [sic, of] the Department of Revenue.

Neat, but how are they going to do that? If a drug dealer tells another drug dealer that he bought a tax stamp, or shows it off to him, or whatever, he’s got no one but himself to blame. The only plausible source for law enforcement to obtain this information is from the Department of Revenue itself, which holds it in confidence. Even if a particular dealer could show that someone independent of Revenue had independently learned of the purchase of a stamp through no fault of the dealer’s own, that would be an argument for excluding the evidence of that purchase in that particular case; it wouldn’t constitute a valid attack on the tax itself.

Then, there’s this:

He also found that levying the tax and charging someone with a crime was equivalent to double jeopardy because it punished the dealer twice for the same crime.

Jesus on a pogo stick, has this judge never heard of Al Capone?! If he really thinks taxes are a “punishment,” perhaps he should next rule that all taxes I pay are unconstitutional since I am being punished once for an act that isn’t a crime at all, and in some cases is even constitutionally protected. Or, if I can show I’m paying a tax on something that’s already been taxed, that must constitute double jeopardy. Right?

This judge is a prime example of why lower court rulings do not and should not set binding precedents, on constitutional matters or on anything else. It’s bad enough that these knuckeheads get to interpret laws for the few unlucky souls who happen to be arguing their cases before them. Do we really want these guys deciding what the law is for everyone else? Before you answer that, consider that just because this judge’s legally illiterate idiocy happened to result in a political outcome you favor, there’s no reason to believe the next one will, or the one after that, etc.