High on Power

A legal dispute is raging over a controversial "crack tax" that requires drug dealers in Tennessee to pay duties on illegal substances such as heroin.

The law requires anyone involved in the sale, manufacture or illegal distribution of controlled drugs and illicit alcohol to pay special taxes at a rate of, for example, $3.50 (£1.80) per gram of marijuana or $50 per gram of cocaine. They are then given tax stamps to fix to their stash as proof of payment.

The process of buying tax stamps comes with anonymity guaranteed. None of the information provided to Tennessee's Department of Revenue during the transaction may be passed to police or used in a criminal prosecution.

But anyone found in possession of unstamped substances can be fined up to 10 times the amount the tax would have cost him, which is where the bulk of the law's income is generated.

"We have to provide people with a means to comply with the law, which is why the stamps are available. But, like any other tax, if you have not paid you will be penalised," said Emily Richard, spokesman for the Tennessee Department of Revenue.

Objections focus on the fact that the state does not need to prove guilt, or secure a criminal conviction, before making the owner of the drugs pay up.

"It's like trying to force somebody to buy a permit before they drive drunk," said Gregory P. Isaacs, a lawyer in Knoxsville.

"People are being deprived of their constitutional right to due process. The state can seize your home, your bank account, your property, before you have had a chance to prove your innocence."

The tax was struck down as unconstitutional by a district judge last year, on the basis that it violated a defendant's right to due process. But the state has appealed and currently continues to collect the tax.

Isn't this the pinnacle of logic and constitutional scholarship? If you buy it, you're breaking the law. If you possess it, you're breaking the law. If you sell it, you're breaking the law. But please, if you're going to break the law, pay your taxes on the illegal products in question. Otherwise, you're. . .

. . .breaking the law.

This made a big splash in Tennessee recently. Here's an excerpt from a local newspaper:

A Blount County couple has filed suit in Chancery Court asking that the Tennessee Unauthorized Substance Tax Act be declared unconstitutional.

According to the suit, the couple's son, Brian, was in a vehicle stopped and searched May 24, 2006, by agents of the 5th Judicial District Drug Task Force. The officers found 100 pounds of marijuana in the vehicle and then searched a shed "on Mr. Harmon's grandmother's property" where they found eight more pounds of marijuana.

The suit said officers then obtained a search warrant for Tim and Tina Harmon's property and notified the Department of Revenue of the 108 pounds of marijuana seized.

An "Unauthorized Substance Officer" arrived at the scene to observe the search that resulted in the discovery of approximately 170 pounds of marijuana in a trailer located on the property line between Tim and Tina Harmon's property and Tim Harmon's father's property.

When the marijuana was found in the trailer, the Unauthorized Substance Officer presented Tina Harmon and her father-in-law with a notice of assessment and demand for payment of $283,387.19 in taxes, penalties and interest.

According to the suit, when Tina Harmon failed to pay the tax immediately upon receipt of the notice, the Unauthorized Substance Officer seized property belonging to the Harmons including two semi-tractors, a semi-trailer, a motorcycle, a camping trailer, two four-wheelers, a car, two mini motorcycle scooters, a pickup truck, two television sets, a coffee table and two end tables.

The Harmons were notified the items were scheduled for sale at public auction on June 27, one month and two days after the items were seized. The couple requested an informal conference with the commissioner of revenue, the recourse provided in the law. The request temporarily stopped the sale of the property.

An information telephone conference was scheduled on Nov. 13, and Tina Harmon spoke with an administrative hearing officer that day.

On Dec. 1, the Harmons received a letter indicating the assessment was upheld, and the property would be sold at auction Jan. 19.

On Dec. 11, federal charges of "conspiracy to distribute and possess with intent to distribute 100 kilograms or more of a mixture and substance containing a detectable amount of marijuana" were filed against Tim Harmon, Tina Harmon and Brian Harmon. No hearing has been scheduled on the criminal charges.

In conjunction with the lawsuit filed Jan. 17, attorneys for the Harmons requested and received a temporary restraining order preventing the sale of their property pending further court action.

***

This story lays out a strong defense in favor of those who decry the "War on Drugs." In fact, it's the best case against it I've seen. I realize these people aren't angels, and it's likely that they knew the drugs were on the premises, having intent to sell them. But that's not the point. This is a violation of basic constitutional rights, in one of the most absurd and counterintuitive manners imaginable.

That the officials involved don't hang their heads in shame and remorse for this travesty of justice concerns us all. A government with the power of constitutional circumvention is one on the road to openly declaring that document null and void, altogether.