Will Federal “Equitable Sharing” Undermine Wyoming’s Reform of Civil Asset Forfeiture?

by Stephen Klein

The U.S. Department of Justice recently resumed the Equitable Sharing Program, which allows state police agencies to collect civil asset forfeiture funds under federal instead of state law by cooperating with federal drug enforcement. All too often, civil forfeiture laws allow for the government to seize and permanently keep alleged drug proceeds—such as cash, cars and firearms—without convicting or even charging the property owner with a crime.

Even after Wyoming's recent reform of civil forfeiture under the state's Controlled Substances Act that adds numerous protections for due process and property rights, there is cause for concern that Equitable Sharing could serve as a loophole around the reform. This is because many of these protections have not been added to federal law.

The Wyoming Controlled Substances Act allows participation in the Equitable Sharing Program: "Any law enforcement agency of this state may accept, receive, dispose of and expend the property or proceeds from any property forfeited to the federal government or any state and allocated to the agency by the United States attorney general[.]" The law has always required a report on participation with Equitable Sharing, and this requirement remains in the new law—in fact, the new law expands reporting. The new reporting provision reads:

The [Wyoming] attorney general shall submit an annual report to the joint appropriations interim committee and the joint judiciary interim committee not later than August 1 concerning recipients and the amount of property and proceeds accepted, received, disposed of or expended during the prior calendar year under this section by law enforcement agencies, other than property subject to summary forfeiture.

("Property subject to summary forfeiture" is typically actual narcotics– the state seizes the drugs, keeps a certain quantity in evidence in trial and disposes of the rest.)

Until this amendment, the report was required every two years, so the last report filed by the Attorney General was in 2014. It contained the following information regarding forfeitures conducted with federal law enforcement:

According to the report, this breakdown does not include information for local law enforcement agencies that may have participated with federal law enforcement outside of the AG's purview, but notes that the office will take steps to collect such data for future reports. More data should be available in the report due on or before August 1, 2016, and may be discussed at the second meeting of the Joint Judiciary Committee, tentatively scheduled for September 22^nd and 23^rd in Torrington.

These numbers tell us Wyoming did not participate in a significant number of federal forfeitures prior to this year's reform, unless a significant number of agencies were doing so without the knowledge of the AG. (This remains a rather nebulous area of forfeiture practice.) Notably, considering a spreadsheet provided to WyLiberty in late 2014 detailing several years of forfeitures, sometimes Wyoming state agencies do not collect portions of federally forfeited assets, but simply turn over cases to federal law enforcement agencies such as the DEA. Finally, and of most concern, there is no baseline for federal forfeitures – the federal cases listed above and in the full spreadsheet involve property values below and above the median $2,000 of property value seized in Wyoming cases.

Outside of these data, an important point: it takes two to tango. Given the small size and number of Wyoming's Equitable Sharing forfeitures, I suspect these arose from state cooperation in much larger federal operations that spanned across several cases and states. It is not as if a Cheyenne police officer can call a local FBI agent on a small—or even significant—seizure and make a federal case out of it. Federal agencies have their own priorities, limited resources, and politics.

In theory, Wyoming police could use Equitable Sharing as a loophole in the state's civil forfeiture reform, but accountability is part of the reform that cannot be skirted. Equitable Sharing forfeitures in Wyoming can be reviewed on a yearly basis, and suspicious cases can be investigated in detail through case files. If Equitable Sharing turns into an actual loophole, Wyoming police agencies may be prohibited from participating in the program.

The price of liberty remains vigilance; though we helped make forfeiture reform a reality in Wyoming, it is not our last work on the subject or other criminal justice issues.