'Drug Tax' Overturned

A convicted drug dealer argued Friday that the state violated his rights by punishing him twice for the same crime and asked a judge in New Hanover County Superior Court to release him from prison.

Franklin Bryant joined other drug dealers in state prisons who want to be freed based on a federal appeals court decision that appeared to strike down the state's drug tax, calling it a criminal penalty. The drug dealers argue they can't have their money and property seized and then be put in prison.

"I wish for my charges to be dismissed," Mr. Bryant told Judge Allen Cobb.

Judge Cobb denied his request, but this case and others have caused concern among lawyers for the state that North Carolina might eventually be forced to release prisoners and refund millions of dollars in drug-tax money.

Mr. Bryant, like the other prisoners, based his motion on a 1998 U.S. Fourth Circuit Court of Appeals decision that said the state's drug tax was so high it constituted a criminal punishment. Because authorities seized more than $9,000 in cash and property upon his arrest in 1995 under the drug-tax law, his 30- month sentence was a second punishment, Mr. Bryant argued.

However, prosecutor Mike DeSilva countered that a1997 decision by the N.C. Supreme Court upheld the drug tax and should trump the federal appeals ruling.

"Our Superior Court is not bound by what the Fourth Circuit says," Mr. DeSilva argued Friday, echoing the opinion of state lawyers in Raleigh.

Superior Court Judge Allen Cobb denied the motion because the state and federal rulings conflict, resulting in "a lack of any clear controlling authority" on how such cases should be handled.

Sharon Huffman, Mr. Bryant's lawyer, said later she thought Judge Cobb's ruling implies he wants a higher court to decide the matter.

"Clearly it would open the floodgates," she said.

Mr. Bryant said he will appeal.

Lawyers say the only way to clear up the controversy may be for the U.S. Supreme Court to decide whether the drug tax is a criminal punishment.

That's because prisoners seeking release are relying on the Fourth Circuit decision while the N.C. Attorney General's Office is resting on the state Supreme Court decision. Lawyers for the state argue North Carolina judges are bound to follow rulings from the state Supreme Court unless the U.S. Supreme Court makes a decision.

Lower federal courts do not control state judges, they say.

Some of the controversy comes from the way the U.S. Supreme Court handled the decision by the Fourth Circuit. The high court declined to hear the case in October, letting the lower ruling stand.

Some prisoners and lawyers, like Mr. Bryant and Ms. Huffamn, argue the Supreme Court's inaction was tantamount to upholding the Fourth Circuit ruling and makes that "the law of the land."

Lawyers for the state disagree, saying the Supreme Court's refusal means nothing at all.

"This issue is percolating around the state, both in federal and state courts," said Bill Farrell, chief of the criminal division in the Attorney General's Office.

The state is fighting several appeals from prisoners, he said. In one case, the state is appealing a judge's order to release a prisoner after finding he had been placed in "double jeopardy," said Mr. Farrell.

The cases are moving through state and federal courts. One defendant is asking a federal judge to halt his trial to avoid being punished twice, Mr. Farrell said.

North Carolina collected $40.4 million in drug-tax funds from 1990 through June last year, according to the N.C. Department of Revenue.

The law requires tax stamps to be bought on illegal drugs. A person arrested without the stamps was charged $200 per gram of cocaine, $400 for 10 dosage units of LSD, and lesser amounts for other drugs. A 50- percent penalty was added if not paid within 48 hours of an arrest. Authorities could seize money and property from those who didn't pay.

The General Assembly lowered some of the tax amounts in October to withstand constitutional tests about whether they are so high the tax is a punishment and began collecting again after a nine-month halt in forced collections.

While some prisoners want their freedom, others want their money back.

Mr. Bryant originally asked for a refund when his motion first reached Judge Cobb in December. But he withdrew that request Friday when the case came up for a hearing and he asked to be freed instead.

Last month, Judge Cobb appeared to be poised to grant Mr. Bryant's request for a refund. Prosecutors hadn't used the state Supreme Court case then, but lawyers in the Attorney General's Office pointed it out later.

Judge Cobb had already heard a similar case in Onslow County and ruled in favor of two prisoners who had more than $79,000 seized by authorities. He ordered refunds for the men, and the Attorney General's Office has been negotiating to settle the case rather than appeal it.

Mr. Farrell said he doesn't think prisoners will be released unless one reaches the U.S. Supreme Court and wins.

"We'll have to wait and see," Mr. Farrell said.

Copyright Wilmington Morning Star

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