Pot Stickers

Indiana tries to punish a marijuana grower twice.

David Sumpter was hungry. The refrigerator in his trailer home was bare, and his wallet was empty. So Sumpter, a small-scale Indiana vegetable farmer who also dabbled in marijuana, asked his common-law wife's 6-year-old son to join him on a short fishing trip at nearby Elk's Lake. Sumpter remembers October 19, 1993, as chilly, and the fishing as futile. "We wasn't gettin' no bites," he says. After 15 minutes of fishing and freezing, they packed up their equipment and headed home.

As he drove along Interstate 64 just north of the Indiana-Kentucky border, Sumpter recalls, he spotted a freshly killed deer on the side of the road. To most people, it was road kill; to Sumpter and his family, it was dinner.

Sumpter knew the doe had been struck only minutes earlier because, he says, "blood was still running out of her nose." Sumpter packed the carcass into his 1978 Toyota station wagon and took it home to clean it. Once home, he dragged the deer behind his trailer, down a path that leads to a shallow creek, where he gutted the animal. He kept the meat, storing it in his freezer, and cut off one of the hooves as a good luck charm for his common-law wife's daughter. She didn't want the deer foot, so Sumpter threw it away. With it, it seems, went his short-lived good fortune.

David Sumpter's troubles began with road kill and haven't ended yet. In the intervening six years, he has received and served a criminal sentence for marijuana possession. The state of Indiana isn't through with him, though; it wants to punish him again for the same offense. Officially, the state is trying to collect a "controlled substance excise tax," under a law that the Indiana Supreme Court declared unconstitutional in 1995.

Two days after he tossed the deer hoof, as Sumpter was fishing at Elk's Lake, he was approached by an Indiana conservation officer who had noticed blood and hair on Sumpter's car. According to his attorney, Sumpter told the officer how he had serendipitously found the deer. The officer was dubious, however, and called a second conservation officer to search Sumpter's property for the deer's remains so they could verify that it had been killed by a car.

The second officer, Mac Spainhour, inspected the area surrounding Sumpter's trailer. Near the path leading down to the creek, as he searched for deer parts, Spainhour happened upon 30 to 40 marijuana plants, each about one foot high. Alerted to the marijuana by the conservation officers, a Clark County deputy sheriff obtained consent from Sumpter for a search of his trailer. There he found more plants and harvested marijuana, amounting to 17 pounds of pot, according to the sheriff's report. Sumpter and his attorney disputed that claim, arguing that the state tested only three pounds.

The 46-year-old Sumpter says he grew the marijuana both to smoke it and to sell it. "I smoked it mostly," he says, "way more than I sold it." Sumpter says he smoked pot to alleviate the pain he experienced as a result of two serious accidents in the early 1990s that had left him disabled. Since 1990, he has had one operation to remove a disk from his neck and four to repair a leg that was crushed when he was run over by a truck.

Sumpter also sold small amounts of pot--as a last resort, he insists--to help support a family with growing expenses. He and his common-law wife, who had a low-paying job at a cookie shop, were raising her four children from a previous marriage. Although he now receives disability payments from the state, the money didn't begin arriving until after his arrest. "I'd sell a bag every once in a while, mostly down in Louisville," Sumpter says. "When I sold it, I was just feedin' my family. That's all I was doin'."

Sumpter plea-bargained his case, and ultimately several of the charges were dropped or reduced. He served six months of in-home confinement and three years of probation. His criminal case ended in 1997, with the completion of his probation. But Sumpter's legal woes were just beginning.

A law passed by the Indiana legislature in 1992 required drug dealers to pay a "controlled substance excise tax." If that sounds strange, it is. In essence, the government says to its citizens, "We'll punish you if we catch you selling pot." And then, with a wink and a nod, it adds, "If you do sell pot, tell us, so we can profit from it too." More than 20 states have some sort of tax on illegal drugs. For years, the state of Arizona charged $100 for a "Cannabis and Controlled Substance Dealer's License." (In 1996, an Arizona judge threw out the case against an accused drug dealer who had purchased one of these licenses, concluding that the state could not punish an activity for which it had granted permission.) Other states, including Indiana, issue "tax stamps" that dealers can attach to drug packaging to verify that they have paid the levy.

According to court records, immediately upon Sumpter's arrest, before he was charged, he was assessed a controlled substance excise tax of $315,972. That assessment was doubled as soon as it was levied, as a penalty for his failure to pay the tax in advance. Within hours of his arrest, Sumpter found himself more than $630,000 in arrears to the state of Indiana. His attorney, David Mosley, immediately filed a "protest of assessment" on behalf of Sumpter, but the administrative hearing did not take place until March 2, 1999, some six years later. (Indiana Deputy Attorney General David Arthur, who is representing the state Department of Revenue in the case, says the delay was caused by an overwhelming caseload.) In the interim, Sumpter had served his criminal sentence.

Mosley believes that by pursuing the drug tax now, after Sumpter has been punished for his offense, the state is violating the Fifth Amendment's prohibition against double jeopardy: "No person shall...be subject for the same offence to be twice put in jeopardy of life or limb." As the U.S. Supreme Court explained in Department of Revenue of Montana v. Kurth Ranch, a 1994 decision that overturned a similar drug tax in Montana, "The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense."

After that decision, in the 1995 case 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. This finding does not help Sumpter, however, because the decision doesn't apply retroactively. Even if it did, the state argues, the tax could not have violated the Double Jeopardy Clause because it was assessed before the criminal sentence was imposed.

Since Kurth and Bryant, Indiana has changed its drug tax law several times. But Indianapolis attorney Andrew Maternowski, an expert on drug prosecutions, believes the law is still unconstitutional. "Effectively, Kurth Ranch is avoided because they are infrequently using the [drug tax] at this time," he says.

In addition to the Double Jeopardy Clause, Maternowski argues, the drug tax violates due process rights. "It is a criminal sanction," he says, so defendants "should be entitled to the same protections as criminals. But there's no trial, no right to evidence, no court findings, no anything. They have no rights at all. Instead of a presumption of innocence, the assessment [rests on] a presumption of guilt." Furthermore, "bad searches don't matter....Police can say, `Screw the Fourth Amendment; we want the money,' and even if it's a bad search, and the criminal case is thrown out, the tax can be assessed." Police receive 30 percent of assessments based on information they provide.

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