Fatcats Ignore Constitutional Rights
Oregon Police Pull Out the Stops to Save Asset Forfeiture Gravy Train
A news update from our friends at drcnet.org
Oregon law enforcement officials and failed drug war diehards are in a desperate last-ditch effort to keep asset forfeiture funds flowing into police drug squad coffers. Oregon voters last November approved a referendum greatly restricting asset forfeiture and requiring that any seized funds be directed to drug treatment instead of law enforcement.
Law enforcement officials first tried to overturn the will of the voters in the courts. The Lincoln County drug task force filed suit, arguing that the successful initiative was unconstitutionally broad and that it violated federal asset forfeiture laws, but Marion County Circuit Court Judge Pamela Abernathy upheld the ballot measure's legality in a ruling last week.
"She found that Measure 3 met the proper standards and will continue to be the law," Geoff Sugerman, spokesman for Oregonians for Property Protection, told DRCNet.
While attorneys for the measure's opponents vow to fight on, law enforcement is now turning to the legislature for succor. Oregon lawmakers are debating a bill that would create a new, second system of "criminal" asset forfeiture. Crafted by the Oregon District Attorneys Association, the Oregon Association of Chiefs of Police, and the Oregon Sheriff's Association, House Bill 3642 would allow asset forfeiture to continue, merely raising the standard of proof to the "beyond a reasonable doubt" standard for criminal cases. And, crucially, it would allow police agencies to keep some of the seized booty to finance their own future drug operations.
Meanwhile, a bill that would adjust Oregon asset forfeiture statutes to bring them into compliance with the constitutional changes mandated by Measure 3 is tied up in the state Senate. (The implementation bill passed the House 46-1 last month.)
"We have been working in good faith to reach a consensus language that would bring the statutes into compliance," said Oregonians for Property Protection member Floyd Prozanski. "We thought we had agreement on that, but we found out just a few days ago that some people involved in the process wanted to link the civil forfeiture bill that would correct the shortcomings of the statute, to the passage of a criminal forfeiture bill," Prozanski told DRCNet.
"They're holding it hostage on the Senate side," added the three- term former state legislator.
Sugerman told DRCNet that while the passage of the implementation legislation is not necessary for Measure 3's constitutional changes to take effect, it does provide a backstop in the event that an appeals court overturns the Lincoln County case. "If we codify these provisions into law, then even were we to lose on appeal, the provisions would still control civil asset forfeiture."
"Although we oppose 'criminal' forfeiture as unnecessary, we have continued to negotiate on it with the understanding that it might pass. If it does pass, we want to make sure that it carries the same protections as Measure 3. The bill has gone from three pages to 33, and there are many issues we think it important to consider, especially the proceeds issue."
David Fidanque, executive director of the American Civil Liberties Union of Oregon, told DRCNet his organization has no philosophical objection to criminal asset forfeiture. "We've taken the position that forfeiture should rightly be part of the criminal process," said Fidanque. "We've always objected to civil forfeiture on the grounds it gave government officials too much power and didn't protect the interests of defendants and innocent third parties."
But Oregon police are hoist by their own petard, Fidanque said. "Two years ago, there was a legislative proposal to reform civil forfeiture. Law officials said 'no way we're not interested.' They were not even interested in a slightly higher standard of proof," said Fidanque. They had their chance to support reform. "Now, after Measure 3 was approved, the link between forfeiture proceeds and those who seized them has been severed. And with this criminal asset forfeiture bill, police will have an even higher burden of proof to overcome than was contemplated by the legislature."
Fidanque also told DRCNet that negotiations on the criminal asset forfeiture bill were moving forward. "I think we've reached a tentative agreement on a formula for allocating forfeiture proceeds. There is consensus at this point that the amount for treatment will be equivalent to the amount for law enforcement."
Law enforcement bureaucrats have been complaining that they could not continue to function at the same enforcement levels without the funds they derive from asset forfeiture.
"When you withdraw a funding stream, cities and counties aren't going to be able to backfill that loss, so some of these teams will cease to operate and others will be greatly reduced," Marion County District Attorney Dale Penn told the Register-Guard.
"That's right," Prozanski told DRCNet. "Voters wanted two things out of this -- they wanted a criminal conviction before asset forfeiture and they wanted to break the funding mechanism of these task forces. We have not argued that asset forfeiture should be completely abolished; we just wanted appropriate checks and balances to keep inappropriate conduct from occurring," he added. "Unfortunately, too many people in law enforcement are following the money instead of doing the right thing."
Sugerman of Oregonians for Property Protection agreed that police are concerned about funding their drug squads, but questioned the impact of asset forfeiture reform on their ability to do so.
"There is one and only one reason that they brought forth this bill," he told DRCNet. Easy money. "They want the proceeds."
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