Kansas drug tax stamp law struck down

Early federal drug prohibition laws operated in a cumbersome manner.  At the time, courts took a restrictive view of the federal government’s Commerce Clause power.  So Congress had to rely on its taxing power to enact federal drug prohibition.  

Though they are rarely employed, a number of states still have drug tax stamp laws on the books (PDF).  The state drug tax stamp laws operate alongside state laws criminalizing drug possession and distribution as a way to impose additional punishment and, perhaps, collect a bit of money.  

Of states with these laws, Kansas is one of the few that seems to have employed them with any regularity.  It looks like that will change as the Kansas Supreme Court issued an opinion last week limiting the use of the Kansis drug tax stamp law:

A drug tax-stamp law that has been on the state’s books for more than 25 years lost some of its teeth last month when the Kansas Supreme Court ruled that a defendant who has been convicted of possession of marijuana can’t be convicted of possessing the same marijuana without a tax stamp.

The case, State v. Hensley, has prompted the dismissal of a handful of tax-stamp charges in Sedgwick County and is expected to prevent the future filing of such charges in routine drug cases.

“We’re just not going to file them unless there are some exceptional circumstances involved,” District Attorney Marc Bennett said.

The Supreme Court case involved a Saline County man, Michael Rae Hensley, who was charged with possession of marijuana with intent to sell after officers found 200 grams of marijuana in his freezer in 2007. Investigators also confiscated a baggie containing marijuana, a marijuana roach, some rolling paper and a pipe. Hensley was convicted of possession of marijuana, possession of marijuana with no tax stamp affixed and possession of drug paraphernalia. He was placed on probation but appealed the convictions.

Although the court rejected several points of Hensley’s appeal, it agreed that he should not have been convicted of both the possession and tax-stamp charges.