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.
“They arose from the same conduct, and by statutory definition, they constituted a single crime,” the court said in its ruling.
Shortly after its passage in 1987, defense lawyers challenged the Kansas drug tax-stamp law, arguing that charging a person with two crimes for a single act was a violation of the double-jeopardy clause of the U.S. Constitution.
Randall Hodgkinson of the Kansas Appellate Defender’s Office, who represented Hensley in his appeal, said the court’s earlier decision made it clear that “one is a drug offense and one is tax offense.”
But Hodgkinson said an unrelated Supreme Court ruling in 2003 changed the court’s test for determining what constitutes double jeopardy. He said the new test looks at the individual elements of a law. The court concluded that the elements of the state’s marijuana possession law matched the elements of the marijuana tax law.
Defense lawyer Dan Monnat of Wichita said the ruling was a rare case of the court reversing itself.
“In 1991, the Kansas Supreme Court said you could do this, and then in 2001, the Kansas Court of Appeals said you could do this, and now they’ve decided you can’t do it,” he said. “What this says is you can’t be convicted of both possession of a drug and possession of the same drug without a tax stamp.”