Measure 53: Fate, Effect Uncertain

Measure 53 was approved in the May Primary by a margin of 550 out of 978,634 votes; that's less than 0.06% of the total. The Director of Elections has filed an Official Notice of Automatic Recount. Their schedule has all counties finishing the recount by June 26th.

Measure 53 is the latest installment in the continuing saga of civil forfeiture law since the passage of Ballot Measure 3, The Oregon Property Protection Act in 2000. It was originally done with good intent, in response to reports of law enforcement agencies that abused their power of forfeiture as a cash cow. Although Oregon agencies were not accused of particular abuses, the capacity was demonstrated and the temptation to preferentially pursue lucrative prosecutions exists because of human nature. We have the right to require a high standard of fairness from law enforcement agencies.

For people like myself who have little experience with legal matters, a ballot measure dealing with such an arcane matter as civil forfeiture makes makes my head hurt. I struggle to absorb enough information to make an informed vote, and usually there is little information on offer in the usual media. I'm sure I wasn't alone in my fixation with the top of the ticket. Additionally, this subject has had even the experts at a loss how to proceed. I sympathise with those whose advice was to vote 'no' because it's too hard to understand, but how responsible is that?

Civil forfeiture is a method of taking the profit out of criminal enterprise, and takes the form of a case against the proceeds with the property owner removed to a role as a claimant. The Oregon State Bar published an informative bulletin Losing By Forfeit? after Measure 3 was ruled constitutional by the Oregon Supreme Court in October 2006. That's right, six years after passage. Meantime enacting law had been written and expired, and a new forfeiture law written which was invalidated when M3 was upheld.

Measure 53 is the partly the result of a compromise between the ACLU and local law enforcement agencies, who went to the legislature to “...fix what we had [in Measure 3], to make it work and not create some of the bad consequences that were unintended,” in the words of Rob Bovett, legal counsel to the Oregon Narcotics Enforcement Association and Lincoln County. He wrote an Argument in Favor for M53 in the Voters' Guide. His pitch to the editorial staff in Willamette Week's endorsement of M53 is an embedded video from Portland Community Media. There were important responses to the endorsement from David Fidanque, Executive director of ACLU of Oregon, and State Senator Floyd Prozanski.

Mr. Bovett laid out the objections to M3 in the video:

The way it was written... essentially creates a result where even convicted drug dealers... are allowed to keep the majority of their ill-gotten gains. ...We had a convicted 'meth' dealer in Lincoln County who we seized drug proceeds from, but he got all of the money back except for the specific 'buy' money because that [alone was from] the specific crime for which he was convicted. ...Another example they just simply didn't intend is as it relates to animals. ...We now have in many counties animals, abused and neglected dogs and cats, languishing in shelters for sometimes a year or more awaiting the outcome of criminal cases because of Measure 3. ...There's another unintended consequence which was: they built in a provision that said federal asset sharing (when you have a local narcotics team or even the state police help out the Feds take out a really big organization, and they federally forfeit proceeds) ...basically [has to be used] for drug treatment, and that's fine except for the fact that the federal government requires that be used for law enforcement. So basically we can't even accept the money.

The thing I still don't know how to rightly judge is how far they should relax the standard of proof to be able to forfeit proceeds not directly involved in the conviction. Is it right that they can take property someone got from the convict that they should have known was proceeds from his bad act?

Shortly before the primary I made a comment asking about the dearth of debate of the referred measures which was elevated to a topic of discussion on Measures 51, 52, & 53 on the BlueOregon blog. I chose to do a follow-up here.