Forfeiture ruling a setback, but fallout seems manageable

Did Yamhill County overreach when it sought and won a 2020 jury verdict authorizing seizure of Sheryl Sublet’s $350,000 Yamhill residence, citing it as the ill-gotten proceeds of large-scale meth and heroin dealing?

Apparently so, according to a March 10 Oregon Court of Appeals ruling. The court concluded subjecting Sublet to both criminal and civil action — she had earlier been given a six-year prison stint in criminal proceedings, based on a pair of felony trafficking convictions — violated double-jeopardy protection afforded in the federal Bill of Rights.

However, the court’s narrow and tortured ruling was unforeseeable for the judge, jury and prosecution in the Sublet forfeiture case, so it’s hard to find fault.

They felt they were on solid ground at the time, and so did we. In fact, we explicitly rejected opposition arguments, including the double-jeopardy argument, in an editorial supportive of the seizure.

The Court of Appeals heard the case in May 2021, but did not reach a decision and issue a ruling until almost two years later. And it framed its findings this way:

“To begin, we acknowledge that we are working in unmapped territory. As best we can tell, no other state takes the approach to forfeiture embodied in (Oregon’s Constitution), and neither the Oregon Supreme Court nor the United States Supreme Court has had occasion to address a scheme like the one embraced by Oregon voters (in 2000). That means the answer to the question before us does not follow in an obvious way from previous case law.”

What’s more, the court concluded the seizure would have been justified had the county incorporated it into the criminal case, connected the property to the crime and demonstrated the value of the asset and the criminal proceeds to be proportional.

That certainly seems possible, considering agents seized more than eight pounds of meth, a half-pound of heroin, $50,000 in cashier’s checks, a set of digital scales, a prohibited firearm and a quantity of drug paraphernalia at Sublet’s residence.

Adding weight to the argument, an undercover agent twice made quarter-pound meth buys from Sublet there, and she admitted possessing the narcotics cache with intent to sell, according to investigators.

We concede that judicial forfeiture has a checkered past.

Without question, it can and has been seriously abused at various periods in our history, most recently during the War on Drugs launched by the Reagan administration in the 1980s. And the abuse extended into Oregon until voters overwhelmingly passed a reform measure in the general election of Nov. 7, 2000.

But it does have well-established grounds for legitimate use, which the reform measure and appellate ruling both respected.

Judicial forfeiture got its start in British maritime law. It reflected a simple truth: Justice could better be served in maritime cases by seizure of a ship or ship’s cargo than it could by prosecution of an owner potentially residing thousands of miles out of reach.

After the American Revolution, Congress enacted a version to better enforce the customs duties largely funding federal operations at the time. Later, state and federal government fell back on forfeiture to battle rum-runners during the 1920s and drug-traffickers during the 1980s and ’90s.

When the proper balance is struck — as we believe it largely has in Oregon, despite the adverse ruling in the Sublet case — forfeiture continues to represent a just and effective tool in the law enforcement arsenal. It appears to us the excesses have largely been curbed.

However, we believe the county should think long and hard before appealing the Sublet setback on to the Oregon Supreme Court.

The Court of Appeals ruling is very narrow in its application. Moving forward, the county could easily comply, should similar circumstances present themselves.

Reversal of the Sublet forfeiture carries a significant cost, but appealing it on, only to lose, would make that loss loom all the larger. Given the circumstances, discretion might well prove the better part of valor.