Civil asset forfeiture is a process by which law enforcement confiscates private property—cash, cars, houses—that it suspects was used in or derived from a crime, without obtaining a criminal conviction against the owner. On The Bob Zadek Show, the topic recurred across more than a decade of episodes, with guests from the Institute for Justice and economist Brian D. Kelly describing a system that proceeds against property rather than persons, shifts the burden of proof onto owners, and creates financial incentives for police departments to seize.
The mechanics of forfeiture
Bob Zadek framed the practice for listeners as a process in which law enforcement confiscates property from citizens “who have not been convicted and perhaps not even accused in the formal sense of committing a crime,” acting on suspicion or probable cause that the property was used in a crime or is its fruit. There is no trial, no jury, and no conviction; the owner must initiate a lawsuit to recover what was taken. Brian D. Kelly on the False Promise of Policing-for-Profit (2019)
Mike Riggs, a guest on an earlier episode, drew the distinction between civil and criminal forfeiture: criminal forfeiture requires conviction and limits seizure to property used in or gained from the crime, whereas civil forfeiture “is essentially a way to punish someone without ever trying them.” He described it as a circumvention of due process, noting that a judge would never permit the taking of a home or car for misdemeanor marijuana possession, yet civil forfeiture allows it on a claim that the property was used in a crime. Cops Are No Better Than Criminals (2011)
Sam Gedge, speaking in 2018, explained that the government need only show probable cause—a suspicion that the property was an instrumentality of crime—and that once property is seized, the burden shifts to the owner to prove innocence. Standards of proof vary by state, but rarely is the government held to “beyond a reasonable doubt.” The legal fiction underlying the process, Gedge said, is that the property itself is guilty, producing case names like State of Indiana v. $100 and a Black Cadillac. Awaiting the Verdict in Timbs v. Indiana (2018)
Bill Maurer, an Institute for Justice attorney, described the same structure in 2022: the government brings a civil lawsuit against the property itself, criminal procedural standards do not apply, there is no jury, and the citizen must spend enormous sums to fight for what they own. He traced the practice to historical attempts to address piracy, when it was difficult to determine who had stolen property and how it came to be on a pirate ship, and said it was somehow transferred into the American system. Abusive Fines and Fees (2022)
Incentives and policing for profit
A central theme across the episodes is the profit motive. Riggs argued that legislators beefed up forfeiture laws in the early 1980s, police departments and federal agencies began making money from them, and law enforcement groups then lobbied to expand them. He framed the problem in terms of incentives: officers are not bad people, but the system rewards seizure. Cops Are No Better Than Criminals (2011)
Zadek returned to this point repeatedly, comparing forfeiture to paying a meter maid a commission on tickets. He argued that raising the standard of proof to the criminal standard and eliminating the profit motive—what the Institute for Justice calls “policing for profit”—would remove most abuses. He cited a district attorney who defended forfeiture as “a penalty,” and invoked the case of Anthony Smelley, who Zadek said did nothing wrong but lost his property through circumstance. Cops Are No Better Than Criminals (2011)
Maurer described municipalities using forfeiture proceeds to buy margarita machines and to fund expensive training sessions at resort towns, calling the system “basically a scam.” He noted that the government can sell or keep seized property and use it for revenue. Abusive Fines and Fees (2022)
Brian D. Kelly, an economist, described equitable sharing as a federal program designed to secure state and local cooperation with federal drug enforcement. Because the federal government lacks its own police force, it allows local law enforcement to keep what they confiscate—though some money goes to the feds—in exchange for enforcing federal law. Zadek characterized this as the federal government empowering states to seize individuals’ property. Brian D. Kelly on the False Promise of Policing-for-Profit (2019)
The burden on owners
Gedge emphasized that owners must prove their own innocence to recover property. In many states, a parent whose son borrowed a car for a drug deal can come to court, hire a lawyer, and demonstrate innocence to get the car back—but that inverts how the criminal justice system is supposed to work. Awaiting the Verdict in Timbs v. Indiana (2018)
Zadek, a practicing attorney representing creditors, contrasted the voluntary risk of a loan with the involuntary burden of suing one’s own government. He described the prospect of suing the government to recover property as turning the relationship between citizen and government upside down, making the government a thief and the citizen a plaintiff against it. Awaiting the Verdict in Timbs v. Indiana (2018)
Maurer noted that even when the government does not ultimately keep the property, the citizen must spend enormous money and time in civil litigation. Abusive Fines and Fees (2022)
State grades and the Hyde Amendment
Zadek said that abuse was recognized and that in 2000 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. But the Hyde Amendment, Zadek stressed, affects only federal law, not state law, and the abuses now occur at the state level where no statute protects property owners. Cops Are No Better Than Criminals (2011)
He cited a 50-state survey by the Institute for Justice that rated state civil forfeiture statutes A through F. Forty-seven of the fifty states were rated D or F for protection of citizens. California received an overall D and an F for the way states evade federal and state law. Zadek also mentioned a case in which a district attorney used proceeds to buy football tickets to college football games, which was found to be a law enforcement purpose. Cops Are No Better Than Criminals (2011)
The Timbs case and the Eighth Amendment
In a 2018 episode, Zadek discussed Timbs v. Indiana, describing Tyson Timbs as a low-level drug dealer in Indiana who had been prescribed painkillers and whose case was expected to alter the scope of the Eighth Amendment. Gedge’s segment focused on the procedural injustices of forfeiture, including the burden-shifting and the legal fiction of guilty property. Awaiting the Verdict in Timbs v. Indiana (2018)
Across episodes
The topic appears in six episodes spanning 2011 to 2023. The 2011 episode with Mike Riggs emphasizes incentives and the Hyde Amendment’s federal-state gap; the 2018 episode with Sam Gedge focuses on burden-shifting and the Timbs case; the 2019 episode with Brian D. Kelly examines equitable sharing and data on the federal program; the 2022 episodes with Bill Maurer describe the mechanics and historical origins of forfeiture; and the 2023 episode with Mike Greenberg returns to the Fourth Amendment and policing for profit. The excerpts show no development in the argument across episodes—the same criticisms recur, with different guests supplying different particulars.
What the sources do not cover
The excerpts do not state the outcome of Timbs v. Indiana or which amendment the case ultimately turned on. They do not provide the text of the Hyde Amendment or the names of bills reforming forfeiture. They do not give the full names or titles of all guests, nor the founding date of the Institute for Justice. The excerpts also do not quantify the total value of assets seized nationally or provide the full data from Kelly’s study.