The Indiana Supreme Court has ruled that the state cannot tax illegal drugs and prosecute their owners too. In the written opinion of the court, Chief Justice Randall T. Shepard maintained that to apply both civil and criminal penalties to drug cases would be a violation of the constitutional protections against double jeopardy. However, the high court also added that the assessment of the tax is a valid punishment when it is the “first jeopardy” — that is, if it precedes criminal proceedings.
Responses to the ruling are widespread and some legal scholars are critical that the ruling will allow certain defendants to “buy” their way out of criminal sanctions. Citing the court’s suggestion that Revenue Department officials could consult with prosecutors to determine which action to take, Attorney Andrew Maternowski of Indianapolis worries that the state’s particular punishment could depend on the defendant’s financial standing. “If you don’t have money, you go to prison,” he said. Others feel that the ruling will encourage the state legislature to abolish the excise tax.
A similar “double jeopardy” ruling was recently issued in an Arizona trial court. In that decision, a Northwest Phoenix Justice Court Judge dismissed marijuana charges against Arizona NORML Chairman Peter Wilson because he had previously paid the state tax on cannabis.