NEW YORK ought to take a careful look at a legal weapon used by a growing number of states against those who possess or traffic in illegal drugs. Twenty-one states now levy taxes on the possession of illegal drugs, with yet another one, Nebraska, scheduled to do so on Jan. 1.
A survey by The New York Times indicates that the states -- among them, Illinois, Minnesota, Maine and Arizona -- really don't expect drug dealers to pay the tax.
But with the tax on the books, officials can levy heavy fines against drug dealers arrested with illegal drugs in their possession. They can and do seize the alleged dealers' assets to cover the fines, and, significantly, do not wait for a criminal conviction in the courts before they act.
If the dealers are subsequently convicted, then the state keeps what it has seized. But the state may keep the confiscated assets in any event, even if the dealers are freed, because of differences between criminal and civil law and the lack of success the few dealers who have tried have had in efforts to reclaim those assets in the courts.
Criminal law requires a conviction before assets can be seized. But civil law does not. Under civil law, which applies to tax cases, the accused person shoulders the burden of having to show why an imposed penalty is mistaken.
"The drug tax is one of the best pieces of anti-narcotics legislation to have come along in years," Robert D. Ebel, an official of the U.S. Commission on Intergovernmental Relations, says.
Ebel sees no justification "for giving drug dealers tax breaks just because their business is illegal." Nor is this kind of tax weapon a wholly new idea. It was used during Prohibition against bootlegging.
Critics doubt how effective the law is or how well the laws square with the Fifth Amendment to the U.S. Constitution, which prohibits any compulsion of an individual "to be a witness against himself."
If dealers sought to comply with the basic tax, and avoid the fines by buying the required tax stamps, wouldn't they be admitting that they operated an illegal business and thus expose themselves to arrests, conviction and penalties? That is a serious criticism, and legal opinion is divided on it. But Minnesota law allows dealers to buy the required tax stamps anonymously, which some experts believe resolves the constitutional question.
Debate also rages over how effective the law is. In some of the states, Minnesota and Arizona, for example, many larger fines are imposed than are collected. Yet more money is collected with the law than without it.
It may be that these laws and the methods of enforcing them can be refined. New York should explore the possibilities. The state's record in combating drug dealers is not so impeccable that it can dismiss the idea of adding such a potentially potent weapon to its anti-drug arsenal.