STATE ANTI-DRUG LAW REQUIRING TAX STAMPS FAILS IN FEDERAL COURT

Prosecutors, However, Say It's No Big Loss

Fourteen years after it was enacted as an innovative weapon for law
enforcement in the war on narcotics, Wisconsin's drug tax stamp law is
virtually unusable, but prosecutors don't seem to mind.

In a little-noticed case this year, a federal appeals court ruled that use
of the law in criminal cases amounted to double jeopardy. Recently the
state attorney general's office decided not to pursue the case to the
nation's highest court.

Those events freed a convicted cocaine dealer from a 12-year prison term
and effectively rendered the tax stamp law unenforceable. In recent
interviews, however, prosecutors had no concerns over the loss of a once
highly touted law.

"You're not going to see us ranting and raving and asking for an appeal,"
Waukesha County District Attorney Paul Bucher said. "It really has had
negligible impact on our cases in recent years."

Milwaukee County Assistant District Attorney Steven Licata, director of his
office's drug unit, agreed.

"It was relatively rare when we used it," Licata said, "and it will be even
rarer that we will feel an impact from not being able to use it."

Moreover, no sentiment has surfaced in Madison toward tinkering with the
law to bring it in line with the federal ruling, making it usable. Eva
Robelia, a communications specialist for the state Department of Revenue,
said her agency has no plans to ask legislators to rework the law.

The law's demise would have been hard to predict when it was born. But in
its 14 years, Wisconsin's drug tax stamp law developed a tortured history
and never lived up to its billing.

Then-Gov. Tommy Thompson proposed the law in 1990 as a means of deterring
drug dealing. It required the purchase of drug tax stamps before selling
illegal drugs.

Dealers without stamps could be assessed the original tax plus a 100% penalty.

Under the law, tax stamps cost $3.50 per gram of marijuana; $100 per 100
milligrams of LSD; $200 per gram of cocaine, heroin, crack cocaine and
other dangerous drugs; and $1,000 per marijuana plant.

"More than anything else, it's an additional tool for law enforcement
authorities," then-Revenue Secretary Mark Bugher said in 1990. "It's an
additional hammer you can hold over people's heads."

Not surprisingly, drug dealers did not line up to buy the stamps, but about
250 were purchased in the first year as a novelty and by stamp collectors.
In that period, just $84,000 in stamp fines were collected out of the $7.4
million in fines assessed against convicted drug dealers.

By 1994, more than $26 million in fines had been assessed, but less than
$400,000 of that amount was collected.

Then, in 1997, the state Supreme Court struck down the law, saying it was
an unconstitutional violation of the right against self-incrimination.

Legislators recrafted the law, limiting its use in criminal prosecutions
and ensuring that purchasers' identities remained confidential.

The law evolved into a bargaining chip in plea negotiations. Prosecutors
typically dismissed the tax charge in exchange for guilty pleas to
underlying drug trafficking charges, or agreed not to issue it after an
arrest but before other charges were issued.

"Initially we thought it would be a bonanza in terms of revenue," Bucher
said. "It never really turned out that way. Recently we've only used it
occasionally, as leverage."

The case that finally doomed the law began in Racine in 1994, when police
with a search warrant entered Stephen Dye's home and seized 11.9 grams of
cocaine without the requisite stamps.

Authorities seized $4,800 from Dye's bank account under the tax stamp law
and prosecuted him for cocaine trafficking. He was found guilty and
sentenced to 12 years in prison on the cocaine charge, and eight years for
illegal firearm possession and probation violations.

Dye's attorneys lost a series of appeals until last year, when Milwaukee
attorney Chris Bailey raised the double jeopardy issue in a habeas corpus
petition filed with the 7th Circuit U.S. Court of Appeals in Chicago.

The appellate panel agreed with Bailey "that the high tax rate is
indicative of criminal punishment rather than revenue-raising goals."

Dye was about to begin serving the 12-year portion of his sentence for the
cocaine conviction in March, when the case ended. Subsequently, he was
freed from prison.