Primary ThoughtsThe nonpartisan ballot for the Oregon primary doesn't offer many things to vote on. Ten judges but only one race with a competitor, plus three state measures. Hard to get excited. But I'll try. At first blush I thought the judicial race between Andy Erwin and (incumbent) Keith Rogers would be difficult to find information for, but then I found this story about the race that makes me believe it's rather heated. My eyebrows go up a little reading the comments about peoples' yard signs being stolen and vandalized multiple times. I can't quickly make up my mind about this race. Measure 51 sounds like a sure thing. No arguments filed against it, lots of arguments filed for it, and an explanatory statement that makes it sound like it's all good things. But I read the actual text of the measure and am deeply troubled by Sec. 42 (5):
It does not make sense to me that victims' rights in cases involving organized crime should be different than in other cases. The explanatory statement says this is because the victims may be co-conspirators; I am unconvinced that this is a good reason to suspend their rights. It also does not make sense to me that a minor should be denied the particular rights established in this section. The explanatory statement says minors could be manipulated by the accused; I do not agree that removing rights from a victim who is a minor can be better than leaving the option to assert those rights. I am leaning against this one. It'll pass anyway. Measure 52 is similar to measure 51 in providing enforcement for victims' rights. I see no troubling language in the text of the measure so I'll be voting in favor of this one. Measure 53 is pure evil. I have read too many horror stories of asset forfeiture to in any way desire the process be made easier. Oregon's protections against forfeiture are fairly strong but I would want them to be made even stronger, not weaker, as this measure would do. The most offensive thing it would do is to turn justice on its head and put the burden on the accused to show that cash, weapons, or negotiable instruments found near "controlled substances or instrumentalities of criminal conduct" are not the proceeds of crime. I'm voting against!
© Kyle Markley
— Posted 2008-05-14 05:25:12 UTC —
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Comments: 9
Yes, Measure 53 about asset forfeiture does sound awful. I think it's very easy for corruption to occur in these cases (especially when it's set up in a way that a police department can keep the money/assets for their own budget). I think there are already punishments for crime and people shouldn't get a double penalty by having their property taken from them (which may or may not have been a product of their illegal activities).
The burden is actually on the convicted, not merely the accused. Why shouldn't the burden of proof be on the convicted for cash, weapons, and negotiable instruments laying around the meth lab?
Jacque:
It isn't a double penalty as the law allows for it as part of the conviction. Someone convicted of DUII can get jail, a fine, mandatory alcohol/drug treatment, community service, suspended license, required attendance at a victim-impact hearing, and other conditions as the judge sees fit. Is that a 8x penalty? No, it is just the penalty.
#2, because it's impossible to prove a negative. I don't have a paper trail that establishes the sources of the cash I keep at home. I couldn't show that it wasn't the proceeds of crime, even though it isn't.
I would fear, for example, that this measure would give a police officer who doesn't like me an incentive to plant marijuana near my treasure chest full of pirate booty.
You look at the measure and see that it makes it easier to seize the resources of criminals. I look at the measure and see an unacceptable risk of abuse, caused by elevating injustice into the constitution.
Arbyte, it isn't even remotely impossible and it isn't proving a negative - you simply have to prove that it came from a legitimate source. Anyone should be able to reasonably account for all legitimate sources of cash. Well, other than money you find lying on the street. With some smarts and/or a good CPA you can even account for illegitimate sources of income. A self-employed person who's been cheating on taxes might be screwed, but then he's getting what he deserves.
I can't prove that it came from a legitimate source. It's cash! If I say it came out of my paycheck the prosecution will simply say "no it didn't, it came from drug sales" and I will lose the cash because it's my story against theirs. If I produce an ATM receipt showing I withdrew $100 from an account funded by my paycheck, all the prosecution has to say is that it isn't the same $100. They'll say I spent my ATM money and didn't keep the receipts and reiterate that this $100 came from selling drugs. I can't prove otherwise! When I say of course there are no receipts because I didn't spend the money, they won't believe me. Instead they'll accuse me of destroying the receipts deliberately in order to claim I hadn't spent the money. I will lose my $100.
If I had been literally saving money under my mattress for a few years, there's sure as hell no paper trail that could show where that money came from. It would be forefeit if the cops planted marijuana on my nightstand.
The burden of proof should always be on the accuser, never on the accused. That is a fundamental principle of justice in this country. I'll not have it otherwise.
Arbyte, I don't think you understand what "preponderance of the evidence" means.
Oh I think I do. Pray tell, how I could argue successfully to defend my cash-under-the-mattress savings? Keep in mind that this would be immediately after I've been convicted on a drug charge, which the prosecutor will surely make a big deal out of. Give me an example. How would you argue it? And why would it be difficult for the prosecutor to overcome?
The fundamental evil of this measure is that it makes it my responsibility to show I obtained my property legally, rather than the prosecution's responsibility to show I obtained it illegally.
Very easily:
Arbyte, a long time Intel employee makes well over $100,000 a year. There is no evidence of drug dealing. There is no evidence that the cash (all of $1.97 in loose change!) under his mattress beside a single pot plant is beyond that which could be expected from someone with his income as has been reported to the IRS.
As a counter example:
Tweeker has had no apparent job for years. His house was a meth lab. There was $250,000 in cash, seven shotguns, and 2 AK-47s in the booby trapped house.
Neither example should take a jury more than 10 minutes to decide.
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