In January, Denis Palamarchuk, age 36, was driving a semitruck when he was pulled over by police. The truck contained nearly 7,000 pounds of hemp. Law enforcement arrested Palamarchuk on a drug trafficking charge and also seized both the hemp and the truck.
While law enforcement officers believed the material in the truck to be marijuana, Palamarchuk attempted to explain that it was, in fact, industrial hemp. Although cannabis and hemp are closely related plants, hemp contains only a small amount of the psychoactive agent which makes cannabis so potent. Industrial hemp is used in a wide variety of products, including foods, beauty products, and rope. In December 2018, President Trump signed the Farm Bill, which made hemp legal federally.
Big Sky Scientific—the company Palamarchuk was working for—were able to prove the product in the truck was indeed hemp. This was later confirmed by tests commissioned by the Idaho State Police.
Law enforcement officers seized the truck and hemp using a process known as civil asset forfeiture, which allows law enforcement to take possession of an individual’s property if said property is suspected of involvement in a crime. In Idaho, the standard of proof for civil forfeitures is low, only requiring law enforcement show the property was involved in a crime by “a preponderance of the evidence.” This is far short of the “beyond a reasonable doubt” required in criminal cases. Additionally, no criminal conviction is required for police to permanently seize property.
Since police in Idaho can receive up to 100 percent of the proceeds of civil asset forfeiture, there is an incentive for law enforcement to conduct seizure. This is known as “policing for profit” by critics of civil forfeiture. Additionally, law enforcement agencies in the state are not required to report forfeitures, so there is little oversight on the process.
While hemp is now legal at a federal level, it is still banned in Idaho. Attempts by the Idaho legislature to legalize have failed, although a bill which would offer protections to out-of-state truckers transporting industrial hemp through the state is still working its way through the legislature.
The current situation, where Idaho state law is at variance with federal law, “creates a big problem right now because now we have this split,” explained Ian Stewart of the Wilson Elser Cannabis Law practice based in Los Angeles.
In March, Chief Magistrate Judge Ronald Bush of the U.S District Court for Idaho handed down a decision saying that the hemp found in the truck was not protected by federal law as it had not been grown in compliance with the 2018 Farm Bill. As such, the state would be allowed to keep both the hemp and truck. Big Sky Scientific’s lawyer has appealed this decision, and it will be heard by the Ninth Circuit Court of Appeals in due course.
Earlier this year, the U.S. Supreme Court ruled the excessive fines clause of the Constitution applied at the state level. In this particular case, it could be argued that the seizure not only of a semitruck but also of $1.3 million of a product that is legal in all the states bordering Idaho may constitute an excessive fine. In addition to the civil asset forfeiture procedure, Palamarchuk is facing five years in prison for trafficking drugs.
“There should be some mitigation here. This is not drug running in the classical sense,” said Stewart. “Even the trial judge… seemed to sympathize, frankly, with the plight of Big Sky [Scientific], but more importantly, with the driver.”
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