Implementing Pro-Freedom Laws Isn't Easy
Asset Forfeiture Reform Comes to Oregon and Utah
Below is a news report from our friends at drcnet.org
Of the many successful drug policy reform initiatives passed by voters in November, efforts in two states, Utah and Oregon, overturned existing state asset forfeiture statutes.
In Oregon, the new law significantly raises the bar for asset forfeiture. Under the state's 1989 law, passed amidst drug war frenzy, police needed only a "reasonable suspicion" that the goods they seized were related to illegal drug activity. Now, police cannot dispose of seized goods unless and until they obtain a conviction. Also important, 75% of proceeds from seized goods will now go to drug treatment programs, not the law enforcement agency that made the seizure.
In Utah, the Utah Property Protection Act will allow claimants in asset forfeiture cases to use some of the funds in question to cover legal expenses incurred in the right to retain their property. It also raises the standard of proof required to confiscate seized goods, and directs that proceeds from asset forfeitures go into the state school fund.
Unlike the medical marijuana initiatives passed in California and eight other states since 1996, which must contend with hard-nosed opposition from the federal government, these reform efforts face only local- and state-level opposition. So-called 'law enforcement' and prosecutors in both states campaigned against the measures, and in the wake of their passage, some police who had been enjoying forfeited assets are squealing like stuck pigs.
Various Oregon drug 'task forces,' including the Portland Marijuana Task Force, the Lane County (Eugene) Interagency Narcotics Enforcement Team, and the Jackson County (Medford) Narcotics Enforcement Team, or JACNET, have publicly complained that they will not be able to operate without the booty they seize from drug suspects.
The Portland task force scored more than $700,000 for local police coffers last year, while JACNET brought in $80,000 and the Lane County task force's entire $550,900 budget came from seized goods. In all, Oregon law enforcement agencies took in more than $2 million from seizures last year. Now these loot-addicted task forces face an uncertain future. Accustomed to living off the proceeds from cash and properties seized from citizens, they face the uncertain prospect of having to rely on public funds allocated through a democratic process.
"I'm waiting for answers like everyone else," Eugene Police Sgt. Lee Thoming told the Eugene Register-Guard. "I intend to do everything I can to keep the team running," said Thompson, who runs the Lane County task force. "It's just a matter of figuring out how that can happen. Or if that can happen."
Rep. Floyd Prozanski (D-Eugene), who supported the initiative, told the Register-Guard the police should get their money the same way any other state or local entity does.
"It's going to come down to local decisions to prioritize the resources they have," he said. "It's going to shift the funding from the current source [seized goods] to being ranked against other community needs." And that's the way it should always be.
Scott Ehlers of the Campaign for New Drug Policies (http://www.drugreform.org), which sponsored both campaigns, made the same point.
"If local governments or the legislature want to fund those task forces, they should step up to the plate and fund them," he told DRCNet. "We certainly don't want self-financing police [running around] with no oversight by government officials."
Law enforcement, prosecutors, and task force supporters are not merely whining, however. Local and state-wide meetings of prosecutors and police officials took place throughout November. And at least one Oregon newspaper, the Medford Mail Tribune in conservative southern Oregon, has called on local government bodies to fund the local drug task force.
But even in so doing, the Mail Tribune responsibly paid heed to the will of Oregon voters, who passed the measure by a two-to-one margin:
"[The voters] felt, and we agree, that the traditional American presumption of innocence ought to apply when police deprive people of property just as it does when they deprive them of liberty by locking them up," the paper warned.
The paper quoted Jackson County Sheriff Bob Kennedy as saying the law could force an end to forfeitures across the state. "Maybe that's not such a bad thing," mused the Mail Tribune.
CNDP's Dave Fratello told DRCNet that, fervent post-election vows notwithstanding, he expects opponents of the new law to cooperate in its implementation.
"You wake up the morning after a beating like they got, and the immediate reaction is there must be something we can do," Fratello said, "but they are controlled by the law. The measure is constitutional and should be self-implementing."
"But many are working with us, too," Fratello continued. "Law enforcement and supporters of the measure are working to sponsor legislation to systematically reform the existing statutes to put them in compliance with the new law."
For Fratello, a more direct threat than attempted sabotage of the legislation is an odd lawsuit seeking to overturn the law on technical grounds. "That is an attempt to delay implementation," he told DRCNet, "but we have to look at it and defend against it."
Much the same pattern has played out in Utah, according to CNDP's Ehlers and Fratello and press reports, although opponents there appeared even more reluctant to face political reality.
In Utah, the forfeiture reform initiative won with an impressive 69% of the vote.
"The populace got fooled," Iron County Attorney Scott Burns complained to the Deseret News.
Ogden Police Chief Jon Greiner analyzed it this way for his home- town paper, the Standard-Examiner: "Those with pro-drug legalization agendas have bought the votes of the citizens under false pretenses." [Are property rights a false pretense?]
Salt Lake County Attorney David Yocum, who along with Greiner is a member of a group that opposed the initiative, hammered at the same theme. "A fraud has been perpetrated upon the public by these outside interests," he told the Salt Lake Tribune.
Local and national organizers of the initiative have a different take.
"Look," exclaimed CNDP's Ehlers, "this won the most overwhelming support of any of the drug reform initiatives this year. These opponents keep lying to themselves that the people didn't know what they were doing."
"Calling the voters stupid is not good for politicians," he pointed out.
Salt Lake attorney Janet Jenson of Utahns for Property Protection, who helped write the initiative, told reporters, "I thought the issue was pretty simple and I think people understand they deserve to have their property protected."
She also had a warning for opponents who have been grumbling about challenging the new law in the upcoming legislative session, which begins in January.
"This is 70% of their constituency," she told the Tribune. "I think I would listen real hard if I were them. The legislature will realize the voters have spoken."
And despite the grumblings and threats, no legislation challenging the new law has been filed, said Ehlers.
Utah Attorney General Mark Shurtleff, who opposed the measure, has vowed to heed the will of the voters. His office must implement it by March 31st.
"It's the law of the land," he told the Tribune. "I'm going to enforce it."
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