Academic journal article Journal of Criminal Law and Criminology

Fifth Amendment - Double Jeopardy and the Dangerous Drug Tax

Academic journal article Journal of Criminal Law and Criminology

Fifth Amendment - Double Jeopardy and the Dangerous Drug Tax

Article excerpt


In Department of Revenue of Montana v. Kurth Ranch,(1) the Supreme Court addressed whether the punitive nature of Montana's Dangerous Drug Tax constituted a second punishment for double jeopardy purposes.(2) The Court held that the standard it announced five years earlier in United States v. Halper(3) for determining whether a civil penalty constituted a second punishment did not apply in the case of a tax.(4) Nonetheless, the Court found that Montana's Dangerous Drug Tax violated the prohibition against double jeopardy because the Act had an obvious deterrent purpose and imposed a high tax rate predicated on the commission of a crime based on goods which the taxpayer no longer possessed.(5)

The Court left open the possibility that the State of Montana could assess a tax of the same or even greater magnitude under its statutory scheme if brought in the same proceeding as the criminal sanction.(6) It further left open the possibility that, if the tax preceded the criminal prosecution, the Double Jeopardy Clause would bar the criminal prosecution.(7) This particularly unsatisfying result raises the question of whether there is a better analysis to apply than double jeopardy.

This Note explains the confusion surrounding the multiple punishment and multiple prosecution aspects of traditional double jeopardy protection. Then, this Note argues that the Supreme Court inappropriately expanded the scope of the Double Jeopardy Clause by ignoring the distinction between multiple punishments and prosecutions to compensate for some of the Clause's limitations. This Note then concludes that the Supreme Court did not need to expand double jeopardy protection, because other areas of the Constitution already adequately compensate for these limitations. The Court could have achieved more satisfying and practical results by first acknowledging the limits of Double Jeopardy protection, and then turning to the Excessive Fines Clause for additional protection.



Essentially, a drug tax allows the government to collect from the "taxpayer," in a civil action, an amount which it calculates as a function of the street value of the substances in the taxpayer's possession or a flat fee per unit of the substance. Until 1969, the federal government taxed the transfer of marijuana pursuant to the Federal Marijuana Tax Act.(8) In Leary v. United States,(9) however, the Supreme Court declared certain provisions of the Act unconstitutional on self-incrimination grounds(10) and set the stage for the Act's repeal in 1970. Many states implemented their own versions of the federal drug tax, but carefully structured their legislation to avoid the self-incrimination problems that led to the downfall of the federal tax.(11)

At least twenty-six states have, at one time or another, enacted some form of a dangerous drug tax.(12) These tax provisions usually take one of three forms: (1) tax stamps; (2) excise taxes; or (3) licensing fees.

Tax stamps constitute the most popular method of assessing the drug tax. Under this scheme, the dealer must purchase stamps prior to any sale and affix them to the packaging of the product.(13) Most systems allow the dealer to make the stamp purchase anonymously.(14) Enforcement actions following non-compliance under these schemes have the potential to raise considerable amounts of revenue.(15)

Unlike tax stamps, excise taxes(16) offer no mechanism for advance payment. In fact, one particular state imposes the tax only after the state convicts the drug dealer.(17) Finally, two states have imposed an occupational licensing fee on drug dealers.(18) In addition to the licensing fee, such states also impose a tax. Nevada allows the drug dealer to purchase the license anonymously.(19)


The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that "[n]o person shall be subject for the same offense to be twice put in jeopardy of life or limb. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.