Civil asset forfeiture is a process by which law enforcement confiscates private property — cash, cars, houses — belonging to people who have not been convicted, and perhaps not even formally accused, of a crime. Bob Zadek, an attorney who does commercial lending as his day job, described the practice on his show as the confiscation of property that police suspect was used, may have been used, or which they have probable cause to believe was used in the commission of a crime or is the fruit of that crime. There is no trial, no jury, and no conviction; there is only suspicion. Under the principle, law enforcement keeps the property, and it falls to the innocent owner to initiate a lawsuit to get back what they own. Civil Asset Forfeiture Revisited (2023)
The mechanics: probable cause, guilty property, and a reversed burden
Guests across episodes returned to the same procedural core. Mike Riggs, speaking with Zadek, contrasted civil forfeiture with criminal forfeiture, in which a conviction is required and property can be taken only if it was used or gained as a result of the crime. Civil asset forfeiture, he said, is a way to punish someone without ever trying them — a circumvention of due process or a fair and speedy trial. Cops Are No Better Than Criminals (2011)
Sam Gedge, a guest on the episode about Timbs v. Indiana, noted that the standards of proof vary from state to state but that rarely is the government held to the beyond-a-reasonable-doubt standard of criminal cases. Typically the government need not show that the owner did anything wrong, only that the property was somehow connected to a criminal offense — that the property itself is somehow guilty. Hence case names like State of Indiana v. $100 and a Black Cadillac, proceedings that begin from the legal fiction that regardless of the owner’s innocence the property is tainted by crime. Awaiting the Verdict in Timbs v. Indiana (2018)
Bill Maurer of the Institute for Justice described the same structure: the government proceeds against the property itself, in a civil lawsuit where the standards of criminal procedure do not apply and there need not be guilt beyond a reasonable doubt, or guilt at all. Even where the government does not end up with the property, the citizen must spend enormous amounts of money and time in a civil lawsuit to recover what he owns. Abusive Fines and Fees (2022)
Zadek framed the burden-shifting as the inversion of a founding principle: in so far as civil asset forfeiture is concerned, you are guilty until you prove you are innocent. Gedge agreed that this is one of the most pernicious aspects of the practice, since in a very real way the owner has to prove his own innocence, which is not how the system is supposed to work. Awaiting the Verdict in Timbs v. Indiana (2018)
Policing for profit and the federal role
The profit motive was a recurring theme. Riggs argued that legislators beefed up forfeiture laws in the early ’80s, police departments and federal agencies began making a lot of money off them, and law enforcement groups then lobbied to make the laws more expansive. Cops Are No Better Than Criminals (2011) Zadek compared the arrangement to a meter maid paid 20 percent of every ticket she wrote, and said the system must be rid of what the Institute for Justice calls “policing for profit.” Cops Are No Better Than Criminals (2011)
Brian D. Kelly, an economist who has worked on forfeiture since 2010, described equitable sharing as a program the feds run with state and local police. Because the federal government has no official police force of its own, it induces local law enforcement to enforce federal law by letting them keep what they confiscate; the state and local agencies do not keep all the money, since some goes to the feds, but the point of the program is to secure state and local cooperation. Brian D. Kelly on the False Promise of Policing-for-Profit (2019)
Maurer described the uses to which forfeiture revenue was put: municipalities buying margarita machines and sending officers on expensive training sessions in resort towns. He called the system basically a scam, and traced its case names — State of Arizona v. A 1978 Pontiac Fiero — to the era of piracy, when it was difficult to determine who had stolen property and how it came to be on a particular pirate ship. Abusive Fines and Fees (2022)
The mortgage case and the Hyde Amendment
Zadek’s first exposure to the practice came through his commercial lending work. A bank client in Miami had given a first mortgage on a residence that the federal government was confiscating under civil asset forfeiture, telling the bank it would lose its mortgage. The bank asked what it had done wrong; the feds answered that it knew or should have known the borrower was a drug dealer, pointing to the down payment in cash and the fact that the borrower was from Colombia. The bank lost the house, and Zadek drew the lesson the episode pressed: the bank had better not lend where a down payment is made in cash, and had better not lend to Colombians. Cops Are No Better Than Criminals (2011)
Zadek also noted that the abuse was recognized when Henry Hyde, a Republican member of the House of Representatives, enacted legislation in 2000 called the Hyde Amendment, which substantially offered protection to property owners whose property was taken by the feds. Its significance, in his account, is its limit: it affects only federal law, not state law, and the abuses now are at the state level, where no statute gives property owners protection. Cops Are No Better Than Criminals (2011)
State grades
The Institute for Justice conducted a 50-state survey rating state civil forfeiture statutes A through F. It found 47 of the 50 states rated D or F in terms of protection of the citizen. California received an overall D and an F for the way the states evade federal and state law — a result Zadek contrasted with the state’s self-image as populist and protective of citizens’ rights. He cited a case in which a district attorney used forfeiture proceeds to buy football tickets to college football games, and that was found to be a law enforcement purpose. Cops Are No Better Than Criminals (2011)
Reform
Riggs framed reform around incentives, the lens he said libertarians bring to crony capitalism, the mortgage crisis, the dot-com bubble, and inner-city crime alike: the question is what government creates that encourages bad behavior. Police officers are not bad people, he said, but legislators created these laws and departments profited from them. Reform therefore means changing incentives for law enforcement agencies, raising awareness, and pressuring legislators — telling them that what they are doing is theft. Cops Are No Better Than Criminals (2011)
Zadek proposed raising the standard of proof to the criminal standard, which he said would make most of the abuses go away, and eliminating the practice of paying cops on a commission basis. He acknowledged that cops are not inherently bad but insisted that everybody responds to incentives. He recalled a small-town district attorney who defended civil forfeiture by calling it a penalty, and answered that the people caught up in it — he named Anthony Smelley — did nothing wrong. When the state takes somebody’s property, Zadek said, it destroys respect for law and the core relationship between citizens and their government. Cops Are No Better Than Criminals (2011)
Maurer’s account in a later episode suggested the reform pressure was having an effect: there was a time when the Institute for Justice was the only group fighting the battle, but many other groups have joined, and civil asset forfeiture is now, in Zadek’s phrase, on the run as legislatures are embarrassed into managing, repealing, or controlling it. Abusive Fines and Fees (2022)
Across episodes
The topic recurs across more than a decade, and the treatment is remarkably stable rather than developmental: the 2011 episode with Mike Riggs supplies the mortgage case, the Hyde Amendment, the 50-state grades, and the incentives argument; the 2018 episode with Sam Gedge supplies the guilty-property fiction and the burden-shifting; the 2019 episode with Brian D. Kelly supplies the equitable-sharing mechanism; the 2022 episodes with Bill Maurer supply the margarita machines, the pirate-ship origin, and the note that other groups have joined the fight; and the 2023 episode with Mike Greenberg returns to the same themes of policing for profit and equitable sharing. What changes is chiefly the roster of guests and the emphasis on state-level abuse and reform momentum, not the underlying account of the practice.
What the sources do not cover
The excerpts do not state the holding of Timbs v. Indiana, which amendment the case turned on, or how the Supreme Court resolved it; the episode’s discussion breaks off before the verdict is described. They do not give the text or terms of the Hyde Amendment, the name or number of any state forfeiture statute, or the details of the Institute for Justice survey beyond the grades reported. Several excerpts end mid-sentence or at a section break, and nothing beyond those points is reported here.