792
O'Connor, J., dissenting
Justice O'Connor, dissenting.
In an attempt to save their ranch from creditors, the extended Kurth family turned to marijuana farming. "The business expanded to the largest marijuana growing operation in the State of Montana when shut down by law enforcement authorities in October, 1987." In re Kurth Ranch, 145 B. R. 61, 66 (Bkrtcy. Ct. Mont. 1990). The Kurths were convicted and sentenced on various state drug charges.
During the raid on the ranch, authorities found 1,811 ounces of harvested marijuana in the Kurths' possession. Under Montana law, "[t]here is a tax on the possession and storage of dangerous drugs," and "each person possessing or storing dangerous drugs is liable for the tax." Mont. Code Ann. § 15-25-111(1) (1987). In the case of marijuana, the tax is 10 percent of the market value of the drugs or $100 per ounce, whichever is greater. § 15-25-111(2). Pursuant to this law, the Montana Department of Revenue assessed a tax of $181,000 against the Kurths. The Kurths argue, and the courts below agreed, that this tax is a second punishment prohibited by the Double Jeopardy Clause. See Schiro v. Farley, 510 U. S. 222, 229 (1994) (the Clause " 'protects against multiple punishments for the same offense,' " quoting North Carolina v. Pearce, 395 U. S. 711, 717 (1969)).
The government may, of course, tax illegal activity. See, e. g., Marchetti v. United States, 390 U. S. 39, 44 (1968). In fact, we have upheld, as within Congress' taxing authority, a $100 per ounce tax on marijuana. United States v. Sanchez, 340 U. S. 42, 44 (1950). But the power to tax illegal activity carries with it the danger that the legislature will use the tax to punish the participants for engaging in that activity. This is particularly true of taxes assessed on the possession of illegal drugs: Because most drug offenses involve the manufacture, possession, transportation, or distribution of controlled substances, the State might use a tax on possession to punish a participant in a drug crime twice for the same conduct. We would certainly examine a $100 per ounce fine
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