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, Spain-hour 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 sheriffs 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.

One recent change Indiana made in its continuing effort to get around
the Kurth and Bryant decisions requires prosecutors to notify the
Department of Revenue when they don't intend to pursue a drug case.
Maternowski worries that such collaboration will lead to disparate
treatment based on suspects' economic status. "Envision a situation
where the suspect is arrested with a large quantity of marijuana in a
traffic stop that is constitutionally questionable," he says. If the
person is wealthy and prosecution is uncertain, the state has an
incentive to collect the tax. (The stated goal is revenue, not
punishment.) But if the person is poor, it makes more sense for the
state to attempt a prosecution than to try collecting money from
someone who has none. In short, the rich pay the tax, and the poor go
to jail.

Sumpter may end up doing both. Mosley says the state has offered to
settle for $30,000. Sumpter says he arranged for enough family loans
to enable him to make a counteroffer of $10,000. Arthur, the deputy
attorney general, says he has no recollection of such a
counteroffer.

Using either Arthur's figure or Sumpter's, it has hardly been
cost-effective for Indiana to pursue someone who has no resources to
pay the tax. A "Warrant for Collection of Tax" dated August 25, 1999,
has a handwritten "balance due" figure of $789,881. This includes a
"collection fee" of $31,597--more than $1,500 above the state's last
settlement offer.

Remember, this money would come from a man who raised suspicion by
scavenging road kill while returning from a hunger-motivated fishing
trip. No matter, apparently. "If he violated the law," says Arthur,
"he violated the law."

When people with no money are forced to pay the drug tax, says
Maternowski, "they essentially become indentured servants to the
state. They're kicked off family farms. Their paychecks are
[garnished]." If the courts determine that Sumpter still owes the
money, the Department of Revenue will have the authority to seize what
little property he has. "If we lose, that gives them the right to
everything Dave owns," says Mosley, his lawyer. And that's not much.
Sumpter's only real asset is his used trailer home.

A hint of pride emerges as Sumpter describes his one prized
possession. "It's a real nice trailer, an '84," he says. "I got it
used in '90 for $41,000." He adds, "I'm pretty poor. If it wasn't for
selling fruits and vegetables--tomatoes, peppers, and a few
cantaloupes--I wouldn't have nothing."

Arthur says only Gov. Frank O'Bannon can make policy decisions that
would affect the Sumpter case. Unlike Arthur, who knows the law and
knows the case well enough to speak extemporaneously about it for 45
minutes, nobody in the governor's office has heard of Sumpter.

Sumpter hopes his assessment will be dropped. "I don't understand how
they can do it," he says. "It don't make no sense. I just want to move
out of Indiana."

His native Indiana isn't the only thing Sumpter doesn't like anymore.
"I used to love deer," he says. "I used to think deer pictures were
pretty and everything. I had them everywhere. Now, I just want to run
over every deer I see on the road. They drive me crazy."