Civil asset forfeiture is a legal device that allows law enforcement to seize and permanently confiscate property—cash, cars, real property, jewelry—by arguing that the property was involved in or was the proceeds of criminal activity. According to Mike Greenberg, the government does not have to prove that the owner committed a crime, or that anyone committed a crime, or convict anyone beyond a reasonable doubt Civil Asset Forfeiture Revisited (2023). Bob Zadek characterizes the practice as “seize and retain,” with the burden falling on the citizen whose property was taken to get it back. The topic was discussed across four episodes of The Bob Zadek Show between 2011 and 2023.
Definition and scope
In a 2011 episode, Bob Zadek described civil forfeiture statutes as authorizing police to take property “without due process of law” and to retain it, imposing on the owner the burden of proving entitlement to it. He said such statutes exist in about 47 of the 50 states and in the federal government Cops Are No Better Than Criminals (2011). Mike Riggs, a reporter for Reason magazine, agreed that Zadek was not exaggerating, saying that people who have been affected by asset forfeiture laws have lost houses, cars, investments, savings, heirlooms, and personal items under a law that places the burden of proof on the person whose property is taken rather than on the government.
Zadek distinguished criminal forfeiture statutes, which he said nobody would oppose, because they require conviction with due process and constitutional safeguards before the fruits or tools of a crime can be confiscated. Civil forfeiture, by contrast, requires no accusation that the owner did anything wrong.
In the 2023 episode, Greenberg described civil forfeiture as a “dangerous” and “major problem for property rights in this country.” He identified two chief categories of problems. The first is due process: the government need not convict anyone, the proceeding is civil so there is no right to a lawyer and often no right to a jury, and the procedures to contest a forfeiture are often Kafkaesque. Because the value of seized property is often not high enough to justify hiring a lawyer, people rationally walk away rather than prove their own innocence. The second is the incentive structure: in most places where civil forfeiture exists, the agencies that decide whether to seize and seek forfeiture are the same agencies that receive the proceeds, funding salaries, bonuses, and equipment Civil Asset Forfeiture Revisited (2023).
The burden of proof and the profit motive
Zadek argued that in a criminal case the government must prove guilt by “clear and convincing evidence,” but in civil forfeiture it need only show a “preponderance of the evidence”—that the property was more likely than not used in a crime. He said that simply raising the standard to the criminal standard would eliminate most abuses. He also objected to law enforcement working on what he called a commission basis, comparing it to a meter maid paid 20 percent of all tickets written, and said the profit motive must be removed—what the Institute for Justice calls “policing for profit” Cops Are No Better Than Criminals (2011).
Riggs framed the problem in terms of incentives, saying legislators created and beefed up forfeiture laws in the early ’80s, police departments and federal agencies began making money from them, and law enforcement groups then lobbied to expand them. He described civil asset forfeiture as a way to punish someone without ever trying them—a circumvention of due process—and said that if a trace amount of marijuana went through the criminal system, a judge would never grant permission to take a home, car, or belongings, but under civil forfeiture those can be taken if the government claims the property was used in a crime. Riggs said the most effective reform is to raise awareness by calling civil asset forfeiture what it is: theft.
State grades and the Hyde Amendment
Zadek said the abuse was recognized in 2000 when Henry Hyde, a Republican member of the House of Representatives, enacted legislation called the Hyde Amendment, which offered substantial protection to property owners whose property was taken by the federal government. He emphasized that the Hyde Amendment affects only federal law, not state law, and that the abuses now occur at the state level where no statute protects property owners Cops Are No Better Than Criminals (2011).
The Institute for Justice conducted a 50-state survey rating state civil forfeiture statutes A through F. Zadek said it found 47 of the 50 states rated D or F for protection of the citizen. California received an overall D and an F for the way the state evades federal and state law. Zadek also cited a case in which a district attorney used forfeiture proceeds to buy football tickets to college football games, which was found to be a law enforcement purpose.
The Timbs case and the Excessive Fines Clause
In a 2018 episode, Sam Gedge of the Institute for Justice discussed the case Timbs v. Indiana. Gedge recounted an exchange in which Justice Breyer asked Indiana’s solicitor general whether it would be constitutional under the Excessive Fines Clause for a state to forfeit anyone’s car—“whether it’s a Bugatti or a Kia”—for going even five miles over the speed limit, on the rationale that the state needed revenue. Gedge said the state was required under its argument to acknowledge that there would be no constitutional impediment to what he called a radically unjust exercise of government power Awaiting the Verdict in Timbs v. Indiana (2018).
Zadek said the exchange should have been broadcast on the evening news and that he defied any elected official to defend it. He described the Indiana Attorney General’s position as being that the Constitution would not be offended by such a provision, which he found astonishing. Gedge said the only people who think civil forfeiture is a good idea are either people who do not know about it or people who stand to benefit from it—police and prosecutors—and that raising public awareness increases pressure on state lawmakers to reform their civil forfeiture systems.
Forfeiture and the banking system
Zadek described his first exposure to civil asset forfeiture as a commercial lending attorney. A bank client in Miami had given a first mortgage on a residence, and the federal government was confiscating the residence under civil asset forfeiture and telling the bank it would lose its mortgage. When the bank asked what it had done wrong, the feds said the bank knew or should have known the borrower was a drug dealer. The government cited the facts that the down payment was made in cash and that the borrower was from Colombia as red flags the bank should have recognized. The bank lost the house. Zadek said the lesson was that banks should not make loans to people paying down payments in cash or to Colombians, and that this occurred in the ’80s when civil asset forfeiture statutes were first used as a tool to combat the law on drugs Cops Are No Better Than Criminals (2011).
Surveillance and the fugitive class
In a 2014 episode, Alice Goffman described research in Philadelphia in which police officers told her there were 80,000 people with warrants out in the city—low-level warrants as well as warrants for new crimes, failing to pay court fines and fees, or missing curfew. She said police round up people in poor communities of color to make their stats, going to workplaces, homes, and hospitals. Young men were too scared to go to the hospital even when shot or severely beaten, and she watched at-home medical care by janitors and nurses’ assistants. Goffman said police also pressure women by telling them their houses will be taken away through civil forfeiture, their children will be taken away, or they will be charged for a man’s crimes, turning men and women against each other as a technique to round up men Alice Goffman on Fugitive Life in an American City (2014).
Across episodes
The topic appears in four episodes spanning 2011 to 2023. The 2011 episode with Mike Riggs focuses on definition, state grades, the Hyde Amendment, and the profit motive. The 2014 episode with Alice Goffman treats civil forfeiture as one tactic within a broader system of surveillance and warrant roundups in poor communities. The 2018 episode with Sam Gedge centers on the Timbs v. Indiana oral argument and the Excessive Fines Clause. The 2023 episode with Mike Greenberg returns to definition and adds the US Private Vaults case and the due-process and incentive “buckets.” The later episodes do not contradict the earlier ones; the 2023 treatment restates the definition and incentive analysis in more systematic terms, while the 2018 episode adds the constitutional dimension. The excerpts show no development or change in the underlying argument across the episodes—only different guests and different angles on the same critique.
What the sources do not cover
The excerpts do not state the outcome of Timbs v. Indiana or what the Supreme Court held. They do not describe the US Private Vaults case beyond naming it, nor do they state which amendment the Timbs case turned on beyond the Excessive Fines Clause reference. The excerpts do not provide the full text or scope of the Hyde Amendment, the names of any bills, or the founding date of the Institute for Justice. They also do not cover any defenses of civil forfeiture beyond the Indiana solicitor general’s argument as recounted by Gedge.