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Double Jeopardy – Mulitple Punishments – Drug Tax Stamp Assessment, §§ 139.87-139.96, And Subsequent Prosecution For Possessing Same Drug

Stephen Dye v. Frank, 355 F.3d 1102 (7th Cir 2004)
For Dye: Christopher M. Bailey


To determine whether a civil penalty is so punitive that it is should be characterized as criminal punishment, we must consider the factors listed by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and reaffirmed in Hudson v. United States….Using the Kennedy factors, we conclude that the Wisconsin drug tax was so punitive in purpose and effect that it constituted a criminal punishment….

… (J)eopardy attaches to a punitive tax “when the defendant voluntarily pays the amount due in full . . . [or] when the government takes title to a defendant’s assets.” See Doyle v. Johnson, 235 F.3d 956, 959 (5th Cir. 2000).

… For these reasons, we reverse the district court’s denial of habeas corpus. In doing so, we emphasize that this case does not stand for the proposition that Wisconsin cannot both tax and imprison those who violate drug laws. It is well-established that cumulative punishments may be meted out as long as they result from a single proceeding. See, e.g., Kurth Ranch, 511 U.S. at 778; Torres, 28 F.3d at 1464. Moreover, it is a rare tax statute which is so punitive in either purpose or effect that it is subject to double jeopardy analysis at all. However, when we are presented with a criminal punishment masquerading as a civil tax, we are compelled by the mandates of the Constitution to ensure that the defendant is punished only once for his misconduct.

Dye’s drug tax was assessed on the prior tax stamp act; since amended to address a self-incrimination problem identified in State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), it now prohibits use in a criminal proceeding against a dealer of tax stamps affixed to illegal drugs, which therefore removesthat particular infirmity. State v. Glover B. Jones, 2002 WI App 196, ¶33-36. Moreover, under the new act, possession with intent to deliver is not a lesser included offense of the drug tax stamp law, and double jeopardy therefore doesn’t preclude a defendant from being convicted of both. Id., ¶39-41. The particular issue in Dye — whether a drug tax assessment may be regarded as punitive — was notresolved by either Hall or Jones. Nor does it appear that the post-Hall legislative amendment addressed this particular problem. Dye is therefore the definitive statement on stamp-act-as-punitive. But as the final paragraph quoted above suggests, its impact may be fairly limited.

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