Due Process

Last week I posted some discussion of the Drug Tax phenomenon, along with a scan of a notice one of our readers received following his being charged with an alleged marijuana offense. Last night I got an email from Matt Potter, president of North Carolina State University's Students for Sensible Drug Policy chapter and a member of the Student Senate, with some very revealing information recounted from his freshman year in a Law and Justice course. Matt wrote:

My freshman year of college I had a professor for Law and Justice who was the interim director of the NC Illegal Substances Tax division, and he loved going off on tangents talking about his job... [H]e told me several things [about drug taxes], such as that the burden of proof in a drug tax hearing is actually on the defendant. In addition to hearsay being enough to find people responsible for the tax, the person can actually be acquitted of the crime (or not charged at all) and still be found responsible for paying the tax. It is also a retrospective tax. He explained this by saying: If your grandmother smoked an ounce in the 60s and we found out about it, we could collect the tax from her on that ounce.

Well there it is, as Matt put it, right "from the horse's (ass') mouth." I think the evidence is more than clear -- drug taxes are an outrage. As I commented last week, "take this drug tax and..."

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This week saw some good news, when a Tennessee judge ruled that the state's "drug tax" -- a drug war revenue collection scheme in which people involved with illegal drugs are required to incriminate themselves by paying taxes, and can be billed after the fact for the tax plus penalties -- is unconstitutional. The ruling came in the case of Steven Waters of Knoxville, who was billed $55,000 in 2005 for a kilogram of cocaine that had been valued at $12,000. Scurrilously, the state intends to continue enforcing the tax as if the ruling never happened, for as long as they can get away with it. The drug tax notice posted here, from which we blotted out the personal information, was sent to us by one of our readers. The state of Iowa is prosecuting him and trying to take his family's house that they've owned since building it in 1876 -- obviously not built with drug money, as he pointed out. The tax, as you can see, is well over $100,000. Because the tax action is civil, not criminal, the level of due process he has available to him is much less -- no judge approved this notice, the revenue agency is just saying he owes them 136K and he better pay up. He hasn't even gone to trial yet, and the notice doesn't even specify the quantity or value of the marijuana. It looks like they treat drug taxes more harshly than other kinds of tax dealt with on the form, as it says "If this assessment is for drug taxes, you have 60 days to appeal, but you cannot pay the amount shown and then file a refund claim after repayment." Our friend claims his innocence, and he made the following argument in one of his emails to me:

"The pot that I am being taxed on was found in containers on my property which I couldn't see from my house. I had less than an ounce in my house. You would think if I were going to keep that much valuable pot just laying in the weeds where anyone could help themselves to it, I would have at least put no trespassing signs on my place, which I didn't."

"You should see the list of damage they did to my things," he added.

	widely-distributed Tennessee drug tax stamp image

While I haven't independently verified our reader's account, I believe him, and will continue to unless I learn reasons why I shouldn't. But it almost doesn't matter, because the laws and the punishments are so unjust in any case. And there's no question, if you want to frame someone, in this case maybe even get his house, there's no easier way to do it than with drugs. As he put it, "Pretty good way to rob someone, just put some containers of hemp on his place at night where he can't see it, then take what you want." And while we don't know if that's what happened, again, it almost doesn't matter, from a policy level at least, because it couldn't be easier to do, and therefore it undoubtedly does happen. We run police corruption stories in our newsletter every week, and this week we have a piece of misspending of asset forfeiture funds too. This case involves multiple issues. It involves asset forfeiture, it involves the drug tax, it involves the always unjust prohibition laws, and it demonstrates the potential at least for framing and abuse. Back in Tennessee, it also seems to involve the arrogance of an agency that thinks it can ignore a judge's ruling with impunity, and sadly is probably right. Since the issue of the week is drug taxes (thanks to an enlightened Tennessee jurist), I will conclude this time by saying, "take this drug tax and..."

This is not directly drug war related, but this is such an asinine abuse of both police and prosecutorial power that I thought I needed to share it. Alright, here's the tale in a nutshell: Kid riding in pick-up that gets pulled over, kid videotapes cop during encounter (just as cop-car camera videotapes the pick-up), cops seizes camera, arrests kid, cop consults with prosecutor, then charges kid with felony wiretapping, punishable by up to seven years in prison. To stupidly repressive to be true? Here it is: Video Recording Leads to Felony Charge:

Brian D. Kelly didn't think he was doing anything illegal when he used his videocamera to record a Carlisle police officer during a traffic stop. Making movies is one of his hobbies, he said, and the stop was just another interesting event to film. Now he's worried about going to prison or being burdened with a criminal record. Kelly, 18, of Carlisle, was arrested on a felony wiretapping charge, with a penalty of up to 7 years in state prison. His camera and film were seized by police during the May 24 stop, he said, and he spent 26 hours in Cumberland County Prison until his mother posted her house as security for his $2,500 bail. Kelly is charged under a state law that bars the intentional interception or recording of anyone's oral conversation without their consent. The criminal case relates to the sound, not the pictures, that his camera picked up.

Yes, that's right. Apparently, operating a video camera is a crime in Pennsylvania. Who knew? I'm not aware of mass busts of video camera operators at weddings, in parks, at concerts, at family reunions, or any of the thousand and one other places they are commonly used. I haven't seen the Pennsyvlania cops rounding up media camera operators, either, come to think of it. Oh, and the police have an exemption. They can videotape you, but you can't videotape them. Funny how that works.

Via Rogier van Bakel, here's another example of gratuitous malfeasance courtesy of the war on drugs.

From the Milwaukee Journal Sentinel:

The Milwaukee Police Department is accused of taking possession of a Mercedes-Benz convertible from a drug-addicted local businessman in return for agreeing not to prosecute him for cocaine possession.
…

"In brief, the family claims Beck did this only because it was threatened that the fact he had been arrested would be affirmatively disclosed to his former wife's attorney to be used against Mr. Beck in a child custody matter."

Again and again, we discover our public servants perverting justice and jettisoning any remote appearance of caring about the law. The complete moral bankruptcy of the drug war becomes particularly vivid when police start offering to drop charges in exchange for luxury sports cars.

Of course no such incident would be complete without the obligatory nonsensical rationalization from the local prosecutor:

"The drug violation in this case, . . . possession of cocaine, is among those violations for which a vehicle is not subject to forfeiture," [Milwaukee County district attorney, E. Michael McCann] wrote. "We believe the officers acted in good faith under this creative interpretation in justifying securing Mr. Beck's car, but it cannot stand up as a matter of law."

Ok, if something "doesn't stand up as a matter of law" that means it's illegal. It's not a "creative interpretation" of some otherwise appropriate sanction, and police shouldn't be administering punishments anyway. Of course Mr. Beck ultimately wasn't punished, because the police department accepted a bribe instead. That's called extortion.

Equally preposterous is McCann's casual determination that the officers acted in good faith. The "good faith" doctrine forgives police for actions they believed to be legal (i.e. executing a flawed warrant), but it requires some vague pretense of reasonableness. Calling something like this "good faith" is an extremely generous, but obnoxiously typical, prosecutorial response to police misconduct.

As long as prosecutors persist in redefining misconduct as "creative" or "good faith" policing, we should expect plenty more of it.