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The Oregon Department of Justice is scrambling to save the state’s civil forfeiture laws after the state Court of Appeals all but ruled them unconstitutional earlier this year.
The state is looking to the Oregon Supreme Court to save the legal tool, which is most commonly used by law enforcement in busting drug rings. It allows police to seize not only cash and contraband but also the property where the drugs were grown or sold, resulting in long-standing criticism that it represents an abuse of police power. A few states, including North Carolina and Nebraska, have banned civil forfeiture outright, limiting asset seizures to criminal proceedings.
Oregon voters sharply limited the practice with a 2000 ballot measure that required law enforcement to first win a conviction before seizing property and then prove that the value of the seizure was proportional to the crime.
More than two decades later, the Oregon Court of Appeals ruled in March that voters did more than just limit civil forfeiture in 2000—they rendered it unconstitutional.
The Oregon Supreme Court is expected to decide next month whether to review the ruling.
A lot of public officials hope it will. Attorneys for the Oregon DOJ, Yamhill County, the cities of Salem, Kaiser, Medford and Springfield, and the Oregon Narcotics Enforcement Association have filed briefs arguing the Court of Appeals overstepped, noting that the ruling “opens the door to a wave of post-conviction claims for violation of the Fifth Amendment” and could have a “potentially substantial fiscal impact” on law enforcement agencies that rely on it for revenue.
In other words, a lot is riding on whether the March ruling, first reported by The Oregonian, is the last word on the matter. “If this case holds,” says Zach Stern, the lawyer who argued the case before the Court of Appeals and won, “civil forfeiture is dead in Oregon.”
THE CRIME
There are, thanks to the legal oddity that is civil forfeiture, two guilty parties in this case.
One is Sheryl Lynn Sublet, a 66-year-old military veteran who, suffering from post-traumatic stress disorder, became addicted to hard drugs. She subsequently got clean with the help of Central City Concern in Portland, working there for more than a decade as a case manager before moving to Yamhill County.
Then, she relapsed. Police walked into a Lake Oswego storefront of Federal Express and intercepted a package of methamphetamine and heroin bound for her home. Sublet admitted to police the package was hers and that she planned to resell the drugs to 10 customers, according to a probable cause affidavit.
The other party is a piece of real estate: Sublet’s two-bedroom house, which prosecutors argued was instrumental to the crime. The Yamhill County Interagency Narcotics Team searched it twice, the second time in a 2018 raid with 30 police officers armed with flash-bang grenades. There, they seized $50,000 in cashier checks from the sale of her Portland home, digital scales, and “trace amounts” of drugs, according to legal filings.
Sublet pleaded guilty to delivery of methamphetamine, forfeited her checks, and was sentenced to 72 months in prison. And, thanks to a jury ruling in a subsequent civil forfeiture lawsuit, lost her lone remaining asset: her house.
THE ARGUMENTS
Sublet appealed, arguing the seizure was both disproportionate and unconstitutional. The Court of Appeals ignored the question of proportionality and focused on whether Oregon’s civil forfeiture laws were constitutional to begin with.
Sublet’s attorney, Stern, argued that voters had acknowledged the punitive nature of forfeiture by tying it to a criminal conviction. The court agreed, ruling that the case should be dismissed on the basis of double jeopardy. The Supreme Court must now decide whether to review it.
Meanwhile, the cities of Salem, Springfield, Medford and Keizer have signed on as “friends of the court” to fight it. So has the Oregon Department of Justice, which noted there have been 1,200 civil forfeitures since 2009 and that the ruling would “have significant ramifications for criminal prosecutions.” (Disclosure: Oregon Attorney General Ellen Rosenblum is married to the co-owner of WW’s parent company.) If the Supreme Court does decide to take the case, a ruling isn’t expected until next year.
Kevin Jacoby, a lawyer who works on civil forfeiture cases, says the state’s going to have a tough battle. “I think they’re going to be hard pressed to convince the Supreme Court that the Court of Appeals got it wrong,” he tells WW.
In the meantime, Sublet’s sentence was commuted by Gov. Kate Brown. She’s currently living in her house—at least for now, until the courts decide its fate.