Wyoming Legislature Seeks to Reform State Asset Forfeiture Laws, Need to Beware of Feds

Wyoming legislators will take another stab at reforming the state’s asset forfeiture procedures during the 2016 session. But they need to be aware of a loophole that allows law enforcement to use the feds to skirt more stringent state laws.

Wyoming Gov. Matt Mead (R) vetoed SF0014 in 2015. The bill would have required a criminal conviction before prosecutors could proceed with asset forfeiture. The law would have still allowed police departments to profit from forfeiture.

Often called “policing for profit,” asset forfeiture allows law enforcement agencies to seize property if they suspect it was connected to criminal activity. Loose asset forfeiture laws flip due process on its head, forcing property owners to prove the seized assets weren’t used in a crime. Police departments often profit from the procedure, keeping the proceeds for themselves.

Wyoming Rep. Kendell Kroeker (R-Evansville) supports asset forfeiture reform efforts.

“The Fifth Amendment states, among other things, that no person shall be deprived of life, liberty, or property without due process,” he told the Heartland Institute. “I don’t see anything resembling due process when it comes to our forfeiture laws in Wyoming.”

The Institute for Justice agrees, giving the state’s asset forfeiture laws an F.

“The government can seize and subsequently forfeit property with just probable cause that it is subject to forfeiture.  This is the lowest standard, far easier for the government than proving criminal guilt beyond a reasonable doubt.  A property owner who wishes to claim an innocent owner defense bears the burden of proof, effectively making owners guilty until proven innocent.  All of the proceeds from civil forfeiture are distributed to the state Attorney General’s asset fund.  In turn, those funds are used as matching funds for federal drug enforcement grants.”

“Around two-third of the cases are default judgments in favor of the state,” Kroeker said. “That means the individual had their property taken from them and forfeited to the state without even getting to appear in court.”

FEDERAL LOOPHOLE

As Wyoming legislators push for asset forfeiture law reforms, they need close a federal loophole. Last year, SF0014 failed to include language to stop state and local law enforcement from turning cases over to the federal government, thereby circumventing any restrictions placed on asset forfeiture at the state level.

This very scenario plays out frequently in states with strong asset forfeiture laws like California. Police simply avoid civil liberty protections and limits on the revenue they can collect by turning cases involving seized assets over to the feds. In return, state and local agencies get 80 percent of the proceeds from forfeited assets back through the Federal Equitable Sharing Program.

Simple language can close this loophole.

“A law enforcement agency or prosecuting authority may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency excluding the potential value of the sale of contraband.” 

A bill pending in the Pennsylvania legislature follows this strategy.

As reported by the Tenth Amendment Center the federal government has inserted itself into the California’s asset forfeiture debate. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its deplorable “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

The Wyoming legislature should continue pushing state reforms and ensure it closes the federal loophole in its 2016 legislation.