NEW BILL TARGETS FORFEITURE STANDARDS

SALEM - In the wake of voters' overwhelming support for Measure 3,
which bans police from keeping seized cash and property without a
conviction, the House on Friday easily passed a bill to bring state
law into compliance with the measure's constitutional changes.

But behind the scenes, law enforcement, prosecutors and Measure 3
supporters are negotiating to let police resume the practice of using
seized assets to pay for drug investigations.

The parallel effort would establish a new system of criminal asset
forfeiture, now in use by the federal government and some states. And
while it wouldn't fall under the Measure 3 restrictions that voters
imposed on civil forfeiture, both sides of the ballot-measure debate
agree that many of the same tough standards should be kept in place to
avoid the appearance of an end-run around the will of the voters.

The biggest sticking point is likely to be how much money - if any -
police and prosecutors should be able to keep from the forfeited
assets to pay for their anti-drug operations. Since Oregon's civil
asset forfeiture law was adopted in 1989, the proceeds from cars,
boats, cash and houses seized in drug cases have been used to pay for
anti-narcotics operations, including Lane County's Interagency
Narcotics Enforcement Team.

"The big issue that's hanging out there is what happens to the money,"
said Dave Fidanque, executive director of the Oregon American Civil
Liberties Union, which supported Measure 3.

Regardless of whether criminal forfeiture wins legislative approval,
lawmakers are taking steps to make sure the state's civil forfeiture
laws conform with the constitutional changes brought about by the
initiative. House Bill 2429, which passed the House 46-1, does so by
cleaning up discrepancies and by providing for seized assets to be
held temporarily, pending the outcome of criminal cases.

The new asset-forfeiture laws would revert to pre-2001 language in
2005 unless lawmakers continue the law. Rep. Lane Shetterly, R-Dallas,
said the "sunset" language was included in case the courts strike down
Measure 3 as unconstitutional. A Marion County Circuit Court judge
heard testimony last month on a challenge against Measure 3 brought by
Lincoln County's interagency narcotics team and others.

If the criminal forfeiture proposal becomes law, prosecutors would
seek grand-jury indictments not only against defendants but also
against cash or property that resulted from crime or were used in the
commission of crime. The assets could be kept only if the defendant is
convicted.

That means the standard of proof would be to convince a jury of guilt
"beyond a reasonable doubt"; Measure 3 requires a lower threshold of
"clear and convincing evidence."

In addition, as a criminal case, defendants would be entitled to legal
representation, which isn't guaranteed in civil cases.

From the point of view of prosecutors and police, the higher standard
of proof isn't a problem.

"Either you have the proof or you don't have the proof," said Patty
Perlow, a Lane County assistant district attorney who handles
forfeiture and some drug cases for INET.

Criminal forfeiture would apply to a broad range of crimes, not just
drug cases. That means police could seize property ranging from shaved
keys used in burglaries to computers used to download child
pornography, to cars and guns used in robberies.

For many Oregon police agencies and district attorneys, the biggest
plus of criminal forfeiture would be the ability to resume paying for
anti-drug investigations and prosecutions with the proceeds of seized
assets.

Measure 3 opponents have contended that law enforcement will be
hampered because the initiative prohibits the use of forfeited
property to pay for such activities. The measure directed those
proceeds to drug treatment or other purposes approved by elected
bodies, with no more than 25 percent of the value of seized property
going to cover the cost of pursuing the forfeiture.

"When you withdraw a partial funding stream, cities and counties
aren't going to be able to backfill that loss. So some of these teams
will cease to operate and others will be greatly reduced," said Marion
County District Attorney Dale Penn, a member of the work group trying
to devise a criminal forfeiture bill.

Lane County District Attorney Doug Harcleroad said the INET operation,
which involves law enforcement from Eugene, Springfield and Lane
County, isn't likely to shut down because of Measure 3. The
interagency team seized enough property in drug cases prior to the
passage of Measure 3 to cover the $550,000 annual costs through the
current budget year, which expires June 30. Harcleroad said he was
hopeful that the three local governments would accept his proposal to
fund INET's future operations through general revenues.

In one version of the criminal seizure proposal, seized assets would
be divided up so that 45 percent goes to police, 45 percent for drug
treatment, 7 percent for cleaning up the environmental hazards created
by methamphetamine labs and 3 percent to cover the costs of a
constitutionally mandatory asset forfeiture oversight committee.

Key lawmakers said they are waiting to see if a compromise can be
struck by the forfeiture work group. House Judiciary Committee
Chairman Max Williams, R-Tigard, said he'd prefer to see all sides
agree.

But if that's not possible, legislators may push a bill even if
Measure 3 advocates think it allocates too much of the forfeiture
proceeds to police.

Senate Judiciary Committee Chairman John Minnis, R-Wood Village, said
he hadn't decided whether to take up the Measure 3 clean-up
legislation, HB 2429, unless the Legislature can move the criminal
forfeiture proposal.

"If we don't have criminal forfeiture, I'm not inclined to have civil
forfeiture," said Minnis, a detective with the Portland Police Bureau
and a Measure 3 opponent.