End Civil Forfeiture in Wyoming

In October, comedian John Oliver discussed the practice of civil asset forfeiture on his HBO program "Last Week Tonight." His bit closed with a parody of the show "Law & Order," featuring a police detective interrogating a pile of money and another running in dramatic slow motion with a seized toaster. Unfortunately, in real life civil forfeiture is often not very funny, and across Wyoming police may seize and the state may forfeit property that is allegedly related to the drug trade. They may take cash, cars, firearms and other property without convicting or even charging the owner of a crime. It's time to end this practice.

Wyoming Liberty Group recently completed a review of the nearly 400 drug forfeiture cases undertaken by the Wyoming Attorney General's office between 2008 and 2013. Fortunately, based on this review the horror stories heard about civil forfeiture in many other states are rare here. Indeed, drug forfeiture cases generally parallel criminal cases and target dealers charged and convicted with pounds of drugs from marijuana to methamphetamine. When a defendant is acquitted or criminal charges are dismissed, the attorney general's office usually returns seized property even though it technically does not have to (since the civil proceeding is wholly separate). In some of the most questionable cases, where no charges were brought and no drugs were found, the AG's office returns seized property without forcing the property owner to retain an attorney.

It is encouraging that law enforcement is not significantly abusing civil forfeiture in Wyoming, but in some instances police have seized cash and property such as firearms without charging the owner of a crime or even finding drugs. Citizens have had thousands of dollars seized over a small amount of marijuana, possessing drug paraphernalia such as a water pipe, or even due to the mere smell of marijuana in their car. In one open case that began last year, the Highway Patrol seized nearly half a million dollars from a driver without finding drugs or charging him with a crime. Although property in these cases is often returned, it frequently takes months or even a year for the owner to get it back, and if the owner hires an attorney to help, the state is not required to reimburse legal fees.

In any event, the law itself is abusive. Unlike in criminal cases, in civil forfeiture cases property owners are not provided an attorney if they cannot afford one, so they are regularly left to fend for themselves in the legal process. Since the median seizure in Wyoming is around $2,000, even if an owner can afford an attorney it is usually not worth retaining one, as most of what is recovered will go to legal fees. As a result, less than 20% of property owners in Wyoming forfeiture cases retain an attorney. Finally, if the case makes it to trial, the government need only prove by a preponderance of the evidence that the property is drug related instead of providing proof beyond a reasonable doubt, which is required in criminal cases. In other words, in civil forfeiture it is often the owner's word against the government that the property is not drug-related; the owner is guilty until proven innocent. With the deck so stacked, is it any wonder that between 2008 and 2013 nearly two thirds of seized property was given to the government by default, a release of property interest or settlement granting the state the vast majority of seized property?

The 2015 Wyoming Legislative Session may bring reform. In September, the Joint Judiciary Committee agreed in a 12-1 vote to sponsor a bill that would replace civil forfeiture in drug crimes with criminal forfeiture. If this bill passes it will require prosecutors to convict the owner of a crime before his property can be forfeited to the government. Certain prosecutors, law enforcement and lobbyists for local government entities are likely to remain opposed to this reform, as they have since the topic was introduced in the 2014 session. Ending civil forfeiture may lead to less government revenue—apparently their key concern—but it will ensure that property rights and due process are principles for our government to uphold, not circumvent.