By: Christian Purnell*

 

In March of 2018, authorities in Yamhill County, Oregon arrested Cheryl Sublet, a 61-year-old grandmother and military veteran, on charges of possession and delivery of narcotics.[1] Her relapse and arrest represented a tragic turn of events for Sublet who had long battled chemical dependency and PTSD but who had had maintained sobriety and worked for over a decade as a case manager with a Portland based non-profit social services provider.[2] Ms. Sublet ultimately agreed to plead guilty to one count of delivery of narcotics and was sentenced to spend 72 months in prison and forfeit $50,000 in cashier’s checks—proceeds from the sale of her Portland home that were seized during a search of her house in Yamhill County.[3] While this resolution technically brought her criminal case to an end, authorities were not yet ready to close Ms. Sublet’s file. Their next target: her home.

In 2020, Yamhill County brought, and won, a separate civil suit to seize Sublet’s $354,000 home through a process known as civil forfeiture.[4] This past spring, Sublet appealed the judgement, arguing that the seizure of her home constituted a successive proceeding for the same crime, in violation of the Fifth Amendment’s prohibition against double jeopardy.[5] In March of 2023, in Yamhill County v. Real Property Commonly Known as 11475 NW Pike Road (hereinafter “Yamhill County”),[6] the Oregon Court of Appeals agreed with Sublet and found that Oregon voters had sufficiently modified the “nature” of civil forfeiture by way of constitutional amendment in 2000 to legally transform a civil forfeiture action into a criminal proceeding for the purposes of double jeopardy.[7] The decision reflects a growing judicial skepticism of the practice, and holds valuable lessons for those seeking to challenge the constitutionality of civil forfeiture.

Premised on the legal fiction that inanimate property can violate the law, civil forfeiture has long been treated by courts, and laws, as a strictly civil remedial sanction brought against the land itself.[8] Because civil forfeiture treats the land as the offender, instead of the property holder, seizing authorities are not required to adhere to the rigorous due process demands and high standard of proof of criminal prosecutions of individuals or businesses.[9] In Oregon for example, civil forfeiture laws allow the government to seize “all real property, including any right, title and interest in the whole of any lot or tract of land and any appurtenances or improvements, that is used in any manner, in whole or part, to commit or facilitate prohibited conduct.”[10] Authorities need not show that the property owner was convicted of the underlying prohibited conduct.[11] In fact, a complaint in a civil forfeiture case need only allege that there is probable cause that the property was used to commit or facilitate unlawful conduct—a far cry from the “beyond reasonable doubt” required for criminal prosecutions.[12] Such procedural advantages have made civil forfeiture a valuable tool for law enforcement who can efficiently mete out punishment for alleged conduct without assuming the higher legal burden and cost of a criminal jury trial.[13] Moreover, civil forfeiture laws typically allow law enforcement agencies to keep a large percentage of the proceeds from the liquidation of forfeited property which further incentivizes its use.[14]

While authorities have found new applications for civil forfeiture in recent decades, the practice has centuries old roots. Adopted from its English predecessors, a young U.S. government relied heavily on civil forfeiture to avoid the “caprices of juries” when seizing ships carrying contraband or evading taxes—a vital source of government revenue throughout the 18^th and 19^th centuries.[15] Over time, Congress expanded the reach of civil forfeiture beyond maritime law to seize property from rebels during the civil war, and exact punishment on heavily resourced criminal syndicates in the 1900s who inspired fear or loyalty in potential witnesses and therefore made criminal prosecution nearly impossible.[16] However, in the latter half of the 20^th century, during its “war on drugs,” States and the Federal Government increasingly used civil forfeiture to seize property from individual drug dealers and users instead of well-resourced criminal enterprises. Today, the average seizure is only a few hundred dollars.[17] While small on an individual level, these seizures aggregate to over $63 billion.[18] Given racial and income disparities in criminal law enforcement, civil forfeiture has come to represent a large-scale regressive tax on America’s most marginalized communities.

As awareness of the disparities in civil forfeiture has grown, a small number of states have sought to reform the practice. Four states have banned the practice entirely.[19] And, in Oregon, the voters themselves “exercised their initiative power under Article IV, section 1(2)(a), of the Oregon Constitution to approve Ballot Measure 3 (2000), a constitutional amendment . . . which created new limitations on forfeiture.”[20] Among other provisions, the Oregon Constitution now “generally requires a criminal conviction before property can be forfeited, allows only for forfeiture of the instrumentalities or proceeds of the specific crime or conviction of similar crimes, and specifies that the value of any property forfeited must be “substantially proportional” to the specific crime of conviction.”[21] Supportive statements in the voters’ pamphlet for the constitutional amendment “viewed the measure as nec­essary to combat the perceived abuse of the civil forfeiture process to take the property of people who had not been convicted of crimes. Proponents viewed this practice as con­trary to the presumption of innocence, and as an affirmative injustice.”[22] One statement laid bare the injustice that concerned voters: “Civil forfeitures occur an average of three times a day in Oregon. In 1999, police reported taking $2.1 million from 1,069 people. In 72 percent of those cases, no one was arrested, charged, or convicted of a crime.”[23]

Viewing the voter’s statements, the purpose statements of the amendments, the text of the amendments themselves, and the historical context of civil forfeiture, the Court of Appeals determined that the Oregon’s citizens intended to clarify that civil forfeiture in the State is intended to be criminal and punitive and thus subject to the due process demands and prohibition against double jeopardy of the constitution’s Fifth Amendment.[24] The court found that “by ratifying Article XV, section 10, Oregonians rejected the legal fiction underlying in rem forfeitures—that property itself can be guilty so as to allow the government to take it—and replaced it with an in personam theory of forfeiture that implicates double jeopardy.”[25]

With its decision in Yamhill County, Oregon’s Court of Appeals demonstrated a novel willingness to look beyond the legislature’s characterization of civil forfeiture to interrogate the true nature of the practice, and inserted Oregon into a broader judicial movement challenging civil forfeiture’s constitutionality. Later this year, the U.S. Supreme Court will hear an Alabama case, Culley v. Marshall,[26] where the plaintiffs allege that Alabama did not provide constitutionally adequate due process to owners of cars, innocent of criminal conduct, whose cars were nonetheless seized pursuant to the state’s civil forfeiture laws.[27]

Moreover, Yamhill County illuminates an alternative pathway for individuals interested in reforming their state’s civil forfeiture laws. While it is too early to tell if other courts, including Oregon’s Supreme Court, will be receptive to the Court of Appeal’s reasoning in Yamhill County, voters in states that permit citizens to amend the their constitutions or pass laws, by way of popular initiative, may be able to transform the “nature” of civil forfeiture from civil to criminal without the legislature’s involvement.[28] Sixteen states, including Oregon, allow individuals to introduce a new law or constitutional amendment through “direct initiative” which circumvents the legislature and sends qualifying proposals directly to the voters’ ballots.[29] In states where law enforcement interest groups act to stymie civil forfeiture reform in legislatures, direct initiative could present a potentially powerful alternative path.

Even if the Oregon Supreme Court reverses the Court of Appeals’ decision in Yamhill County, the case represents another crack in the weakening foundation of the legal fiction that is civil forfeiture.

 

*Christian Purnell is an Articles Editor for JLI Vol. 42.

 

[1] Jonathan Bach, Yamhill County woman arrested for shipping meth, heroin, Statesman J. (March 7, 2018, 11:44 A.M. PDT), https://www.statesmanjournal.com/story/news/2018/03/07/yamhill-county-woman-arrested-shipping-meth-heroin/403826002/.

[2] Lucas Manfield, An Appeals Court Ruling Says Voters Outlawed Civil Forfeiture, Willamette Week (June 21, 2023, 5:26 am PDT), https://www.wweek.com/news/2023/06/21/an-appeals-court-ruling-says-voters-outlawed-civil-forfeiture/.

[3] Id.

[4] Jury decides convicted Oregon meth dealer should lose home, Associated Press (Feb. 16, 2020, 3:24 PM), https://apnews.com/article/312b8dfdfe5bd8b192095a6911536973.

[5] Yamhill County v Real Property Commonly Known as 11475 NW Pike Road, 324 Or. App. 412 (2023) (hereinafter “Yamhill County”).

[6] Yamhill County, 324 Or. App. 412 (2023).

[7] Id. at 415.

[8] Donald J. Boudreaux & A. C. Pritchard, Civil Forfeiture and the War on Drugs: Lesson from Economics and History, 33 San Diego L. Rev. 79, 93 (1996).

[9] Matthew P. Harrington, Rethinking In Rem: The Supreme Court’s New (and Misguided) Approach to Civil Forfeiture, 12 Yale L. & Pol’y Rev. 281, 282 (1994).

[10] Or. Stat. 131A.020.

[11] Or. Stat. 131A.225.

[12] Id.

[13] Brittany Hunter, A History of Civil Asset Forfeiture in America: Pirates, Mob Bosses, and the War on Drugs, Foundation for Economic Education: Fee Stories (April 9, 2019), https://fee.org/articles/a-history-of-civil-asset-forfeiture-in-america-pirates-mob-bosses-and-the-war-on-drugs/.

[14] Donald J. Boudreaux & A. C. Pritchard, supra note 6, at 80; see also Minnesota Office of the State Auditor, Asset Forfeitures in Minnesota (2021) (finding that, depending on the alleged use of the property, up to 70% of the proceeds of its liquidation are allocated to law enforcement agencies).

[15] Donald J. Boudreaux & A. C. Pritchard, supra note 6, at 98 n.62.

[16] Hunter, supra note 11.

[17] Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Policing for Profit 21 (December 2020).

[18] Id. at 5.

[19] Maine, Nebraska, North Carolina and New Mexico have banned the practice. See generally Nicole Ezeh, Supreme Court to Reexamine Use of Civil Asset Forfeiture, National Conference for State Legislatures (May 1, 2023), https://www.ncsl.org/state-legislatures-news/details/supreme-court-to-reexamine-use-of-civil-asset-forfeiture; see also Yamhill County, 324 Or. App., at 414.

[20] See Yamhill County, 324 Or. App., at 414.

[21] See id.; see generally Or. Const., Art XV, § 10.

[22] Yamhill County, 324 Or. App., at 418.

[23] Id.

[24] Id.

[25] Id.

[26] Culley v Marshall, 143 S. Ct. 1746 (2023).

[27] Adam Liptak, Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case, N.Y. Times (Oct. 30, 2023), https://www.nytimes.com/2023/10/30/us/politics/supreme-court-civil-forfeiture.html.

[28] Initiative and Referendum States, Nat’l Conf. of State Legislatures (March 15, 2023), https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-states.

[29] Arizona, Arkansas, California, Colorado, Florida, Illinois, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, allow citizens to pass law or amend the state’s constitution by “direct citizen initiative” which sends qualifying proposals directly to voters’ ballots. See id.