Yesterday, Wyoming Gov. Matt Mead signed a civil forfeiture reform bill that limits the power of law enforcement to seize property without ever having to charge – let alone convict – the owner of a crime. The bill, SF 46, improves Wyoming’s current civil forfeiture procedure by raising the burden of proof to require prosecutors to have “clear and convincing evidence” in order to forfeit property. Before, prosecutors only required the looser standard “preponderance of evidence.” Raising the burden of proof protects due process for Wyomingites by forcing prosecutors to provide more evidence in civil court when seeking forfeiture. Similar reforms were signed into law in Michigan in October 2015.
The new law also has provisions that require property owners to be given 15 days’ notice of a forfeiture hearing, and allows judges to award attorney’s fees and damages to victorious property owners.
Last year, Mead, a former federal and state prosecutor, vetoed a different reform bill that would have required a criminal conviction as a prerequisite to forfeit property. In a letter to the Wyoming Senate President, Mead claimed that while in some states civil forfeiture had been abused “we [in Wyoming] do not have the abuses found in other states.”
Reports suggest civil forfeiture is stacked against innocent property owners. An investigative report by the Washington Post in 2014, found that Wyoming had 34 cash seizures, without indictments or warrants since 2001. Wyoming Liberty Group (WyLiberty) found that from 2008 to 2013 the median value of seized property in the state was around $2,000. Additionally, in civil forfeiture cases the state is not required to provide an attorney if a property owner cannot afford one. “As a result, less than 20% of property owners in Wyoming forfeiture cases retain an attorney,” according to WyLiberty, leading to more than two thirds of seized property being given to the government by default.
While the signed reform is certainly an improvement, there are several key issues that remain unresolved by the new law. Wyoming received a D- grade in the second edition of IJ’s national report on civil forfeiture, Policing for Profit. The primary factor for that grade was that state law allows law enforcement to keep up to 100 percent of forfeiture proceeds, creating a perverse profit incentive. According to the report, law enforcement in Wyoming forfeited over $1 million from 2008 to 2013. Other factors that went into the grade were the state’s low burden of proof to forfeit property (including not requiring a conviction) and weak protections for innocent third-party property owners. The burden of proof was increased by the new law, but a conviction is still not required for forfeiture.
The new law also does not fix circumvention of state restrictions through the use of equitable sharing. Equitable sharing is when locally seized property is forfeited federally, and up to 80 percent of forfeited proceeds are returned to local law enforcement. The Institute for Justice’s second edition of Policing for Profit found that Wyoming agencies had received nearly $1.9 million from the Department of Justice between 2000 and 2013.
As IJ Attorney Dan Alban stated in a Casper Star Tribune column in November 2015, “[u]nless lawmakers take further action, policing for profit will continue. Forfeiture should never happen absent a criminal conviction, and law enforcement should not be incentivized to forfeit property.” The bill signed by Gov. Mead is a good first step, but major reforms to Wyoming’s civil forfeiture laws are still needed.