A state Court of Appeals ruling Wednesday could effectively end civil forfeiture in Oregon, finding that such cases are the same as unlawfully punishing someone twice for the same crime.
The landmark ruling does not prohibit the state from seizing property linked to crimes, but says prosecutors should seek forfeiture during the criminal case, rather than initiating a civil lawsuit after securing a conviction.
“What it means is you have to bring the forfeiture action with the criminal indictment itself,” said Lewis & Clark law professor Tung Yin. “You cannot do what the government did in this case, which is bring the criminal case first, get a criminal conviction, and then bring the forfeiture action.”
Attorney Zach Stern, who won the appeals case, called the decision “a radical shift.”
“I think it’s going to make it more difficult for cops to police for profit, and I think we’ll be safer because of it,” he said.
Stern represented Sheryl Sublet, a Yamhill County woman who admitted to selling methamphetamine inside her home in 2018. As part of the plea deal, the 65-year-old also agreed to give up $50,000 in ill-gotten cashier’s checks.
But as she was heading to prison, Sublet learned she would now face a civil lawsuit as the state sought to seize possession of her $354,000 house.
Sheryl Sublet
Oregon voters approved major reforms to civil forfeiture in 2000 and 2008, ending the practice of seizing property from people who had not been proven guilty in almost all circumstances. Prior to the reforms, the appeals court noted that no one had been arrested or convicted in roughly 72% of forfeiture cases — they only had been generally implicated in wrongdoing.
The voter-approved amendments to the state Constitution left the two-step forfeiture process intact, said the chief appeals judge in the case, Erin C. Lagesen.
Voters plainly wanted civil forfeiture to come as punishment for a conviction — but that violates the constitutional prohibition on double jeopardy, Lagesen found.
“Oregon voters intended to make those forfeitures like the one at issue here punishment for a crime,” Lagesen wrote in her ruling. “One consequence of that choice to shift the theory of forfeiture from one of guilty property to one of guilty person is that double jeopardy applies.”
The end of the civil forfeiture process has major ramifications for Oregon courts. As it stands, prosecutors rarely seek forfeiture during a criminal case. They instead hand off the case to county counsel or a city attorney’s office after winning a criminal conviction.
“Forfeiture proceedings may need to be consolidated with criminal proceedings… to avoid jeopardy’s bar,” Lagesen wrote.
Prosecutors who now would have to seek forfeiture during the criminal case face a higher standard of proof — beyond a reasonable doubt — instead of clearly convincing evidence or the preponderance of evidence needed in civil suits.
Many people convicted of crimes do not fight civil forfeiture, Stern said.
But Sublet did and argued that the proposed seizure of her home wasn’t proportionate with her crime. She lost before a jury during a two-day trial in Yamhill County Circuit Court in 2000 and then appealed. Wednesday’s ruling overturns the previous judgment.
Stern said Sublet caught COVID while incarcerated and had her sentence commuted by then-Gov. Kate Brown. She has been living in the house since then and just learned she gets to keep it.
“She’s ecstatic,” Stern said.
Timothy Sadlo, an attorney for Yamhill County, didn’t immediately respond to a request for comment. It’s unclear whether the county will appeal the decision to the Oregon Supreme Court.
— Zane Sparling; zsparling@oregonian.com; 503-319-7083; @pdxzane
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