Wyoming Asset Forfeiture Reform and the Art of the Possible

by Stephen Klein

On Wednesday the Joint Judiciary Committee of the Wyoming Legislature voted to adopt a committee bill to reform civil asset forfeiture under the Wyoming Controlled Substances Act ("WCSA"). The law as it exists today allows Wyoming police to seize and the state to keep ("forfeit") property that they suspect is related to the drug trade, including cash, cars and firearms. Property owners do not have to be convicted or even charged with a crime. Although Wyoming has not abused this law to the levels witnessed in other states, there have been some very questionable cases that illustrate the current law's threat to due process and property rights.

The bill, one of two considered in the 2015-2016 interim, would not eliminate civil forfeiture but would institute a forfeiture procedure into the law, which is a fairly big step since a detailed procedure does not actually exist right now in the law and is largely an invention of the attorney general's office. The bill is a significant step toward reform in Wyoming, one that has a good chance of becoming law in the upcoming 2016 Budget Session. But it is bittersweet given that a superior bill passed in the 2015 session—one that would require criminal conviction before any forfeiture—but was vetoed by Governor Mead. Ultimately, however, I believe the new bill deserves support.

If the committee bill (as amended) passes the 2016 session and signed into law, the most significant changes are the following:

• After seizing property (such as cash, cars, and firearms) that the attorney general determines there is probable cause to believe is part of the drug trade, the attorney general and officer(s) who seized the property will have to appear before a judge within thirty days for a preliminary hearing and convince a judge that there was actually probable cause. Currently, law enforcement may seize property and the attorney general may wait up to a year before filing a case with no judicial oversight whatsoever until after the case is filed.

• The attorney general will have to bring the actual forfeiture case within four months of the seizure or within thirty days after a criminal case relating to a seizure, whichever is later. (This follows an amendment I suggested to the bill.) The vast majority of seizures under the WCSA relate to actual drug crimes, but for cases where no charges are brought this four month time frame is a vast improvement over the current one-year time frame.

• In the forfeiture action, the attorney general will have to prove by "clear and convincing evidence" that the property in question is related to the drug trade. Clear and convincing is just one step below the "proof beyond a reasonable doubt" that is required in criminal cases. The current standard, "preponderance of the evidence," basically requires a property owner to prove property is legitimate instead of requiring the state to prove it is not.

• The property owner will be entitled to a trial by jury in a forfeiture proceeding.

• If the property owner fights back with help from an attorney and wins, the state will have to pay attorney fees. This is not as good as the Sixth Amendment's guaranteed right to counsel in criminal cases, but it is a strong incentive for attorneys to take forfeiture cases pro bono (free to the client) when they believe property has been unjustly seized, aiming to recover fees from the state after victory. This provision goes a long way toward curing one of the worst discrepancies between the two bills.

• Even if the property owner loses, the judge in the case may prevent "grossly disproportionate" forfeitures to the state. This will (in addition to all the other reforms here) help curtail major forfeitures relating to misdemeanor drug convictions that do not rise to the level of trafficking, and respect the Eighth Amendment right against cruel and unusual punishment.

• The bill implements a heightened reporting duty, requiring the attorney general to file yearly reports with the Appropriations and Judiciary Committees "concerning recipients and the amount of property and proceeds accepted, received, disposed of or expended during the prior calendar year under [civil forfeiture] by law enforcement agencies…." Currently, the attorney general is only required to report on forfeiture funds received in cooperation with the federal government, which is a very small percentage of WCSA cases.

These are all excellent improvements. Together, these reforms continue to beg the question of just why the state cannot convict a property owner of a crime before forfeiting related property, especially since this bill brings the state very close to that requirement. But political factors are crucial, and should be noted:

• Governor Mead has suggested (through various representatives) that he will sign this bill if it passes. In a budget session, which convenes for a total of only 20 days, if Governor Mead were to again veto reform like the criminal bill it would likely not even have time to be brought up for a veto override. This would leave any sort of reform off the books for another year. Although there is a chance the Wyoming Supreme Court will strike down the existing WCSA forfeiture provision, this is not something we should rely on.

• This is the second time in two years that asset forfeiture reform will enter the legislative session as a committee bill. This carries advantages, from already having the support of the committee to usually moving very quickly off the legislative docket. If the bill were to fail, it is unlikely it would be considered as an interim topic for a third time in a row. As a result, in future sessions for at least the next few years forfeiture reform would have to be brought as an individual bill with none of these advantages.

Whatever one might think of the reform bill that is going forward, property owners deserve better protection now, not just (hopefully, maybe) constitutionally perfect protection later. This committee bill is, in fact, more protective than the reforms I initially proposed for Wyoming asset forfeiture two years ago. Particularly with a heightened reporting requirement, the Judiciary Committee will be able to assess civil forfeiture on a yearly basis and, in time, determine whether it is necessary to convert the WCSA to a criminal forfeiture system.

If it passes in 2016 and is signed by Governor Mead, the committee's asset forfeiture bill is a reform for due process and property rights that all Wyomingites could be proud of.