Civil Forfeiture in Wyoming: Cash by Incomplete Numbers, 2018-2022

by Steve Klein

In the 2024 Budget Session, a bipartisan group of legislators sponsored a "Freedom from government seizure act" that was largely an updated version of a bill that passed in 2015 to replace civil forfeiture under the Wyoming Controlled Substances Act with criminal forfeiture. If either bill became law, prosecutors in the Wyoming Attorney General's office would only be able to forfeit alleged drug proceeds and instruments—usually cash, cars, and firearms—after the owner is convicted of a drug crime. The 2015 bill was vetoed by Governor Mead, some important but lesser reforms were enacted in 2016, and the most recent bill was not even considered for introduction in the tumult of the budget session. As I wrote a few months ago, there are still some serious problems with civil forfeiture, and I will always begin and end on the principle that permitting the government to take and permanently keep property when the owner has not been charged with a crime—or after the owner is acquitted of a crime—is unjust.

While standing against the practice in principle, it is important to keep tabs on reality, or just how civil forfeiture is working in Wyoming.

I recently requested the last five years' worth of reports (2018-2022) that the attorney general is required to submit to the judiciary committee of the legislature—reports "concerning recipients and the amount of property and proceeds accepted, received, disposed of or expended during the prior calendar year" under the Controlled Substances Act. (Wyo. Stat. § 35-7-1049(z).) It is to the credit of the AG's office that they're keeping up with these reports: though required under the law for decades, we learned during the reform effort in 2015 that the reports had not been filed for several years, possibly ever. Unfortunately, the recent reports have varied in substance and do not provide complete forfeiture numbers over the five-year window.

In 2014, we at WyLiberty made a comprehensive review of all the AG's forfeiture cases from 2008 into 2013. We compiled the following statistics:

There is a good deal to unpack here, and some important caveats. At the time we compiled forfeitures (court rulings that determine the government gets to keep the property) only through the year 2012 because many 2013 forfeiture cases (after the government originally seizes the property) were still ongoing when we conducted our review. Averages don't do a great service to the story of asset seizures and forfeitures because all it takes is one very large seizure, such as Robert Miller's $470,040 in 2013 (which was eventually returned) or Sheldon Player's duffel bag of cash in 2009 (which was also returned) to pull up the average substantially and make it seem like the police are often seizing large amounts of money. The median tells a more probative story: typically, a cash seizure is in the low thousands of dollars and is often lower. At the time, this mattered a great deal since it would usually cost a property owner more to hire an attorney to fight a forfeiture action than it was worth. The law now requires the government to pay the owner's attorney fees if he successfully defeats the forfeiture action. (Wyo. Stat. § 35-7-1049(p).)

Prior to the 2015-2016 interim, the attorney general's office had a practice of offering 10% refunds to property owners who would release the property. This was often accepted by the property owner, but was a bad look, to say the least. After all, if the government really believes the money is drug money, why did the owner qualify for a 10% refund? (It also bears noting that, when owners were charged with a drug crime, the 10% refund was incentivized because the owner needed the money to pay for things like bail or a criminal defense attorney.)

The recent reports provide specific accounting of seizures of property, and so we could make those calculations:

The seizure numbers have not moved substantially; in roughly a decade, with the 2016 reform in the middle of it, the average of cash seizures has dropped while the median, or size of the typical seizure, has increased nearly 38%. But inflation in the meantime has effectively reduced that increase to 12%.

As noted, the reports do not provide a complete accounting of specific forfeiture actions. The 2021 report strictly provides details about forfeiture cases that both began and ended in 2021. A forfeiture action can take years and often, at the very least, carries over from one year to the next. Indeed, the 2022 report is more complete and details resolved cases that began from 2019-2021 and one even as far back as 2004(!). So, data for many cases that began in 2019 and 2020 is missing:

Obviously, this makes it impossible to complete numbers besides seizure data for 2019 and 2020. Moreover, because so many 2022 cases were ongoing when the AG's office filed the report in the middle of last year, that data is also incomplete for assessing forfeiture. It would behoove the AG's office to redo the 2021 report.

That aside, an overview of the most recent years, 2021 and 2022, shows that the practice favors the state. Of the 55 forfeiture cases brought in 2021, only six resulted in any refund the property owner, while six were still outstanding at the time of the 2022 report. That is, 43 of 55 cases in 2021 resulted in complete forfeiture of the seized cash.

The numbers support the contention that the 2016 reforms did not hobble law enforcement as much as some opponents claimed it would. For proponents of the 2016 effort and further reforms like the recent 2024 bill, the numbers are important but only a starting point. While cash refunds have dropped, that could very well mean that the attorney general's office is largely focusing on meritorious cases. Indeed, anecdotally a number of forfeiture cases have arisen out of major drug conspiracies, often the distribution of methamphetamine and fentanyl. But we have not undertaken a case-by-case review as comprehensive as our earlier effort and thus we do not know the numbers of criminal cases that have accompanied forfeiture actions, whether substantial seizures are still occurring over miniscule amounts of drugs, and other details.

The 2021 report should be redone and resubmitted by the attorney general's office to the judiciary committee. Perhaps the reports themselves should include more information about forfeiture cases to better assess the practice. In principle, civil forfeiture remains a problem in Wyoming, but even for opponents of further reform the numbers suggest law enforcement can comply with enhanced due process protections.

Steve Klein is a partner with the law firm Barr & Klein PLLC in Washington, DC and a lobbyist for the Wyoming Liberty Group.