On June 9, Jackie Shell, a Tennessee bounty hunter, killed the country musician Randy Howard during a shootout. When John Doyle, a bail-recovery agent, heard the news, his first thought was: If the bounty hunter went in alone, he’s an idiot.
The singer had failed to appear in court on a litany of rural-route charges: a handful of DUIs, possession of a firearm while intoxicated, and driving on a revoked license. When Shell failed to appear at a court hearing, the judge issued a bench warrant for his arrest. What happened next was straight out of an Elmore Leonard novel: His neighbor, Terry Dotson, told reporters that when he offered to drive Howard to his appearance, Howard told him he wasn’t going back to jail. Shell approached Howard’s Marion County residence—apparently alone—and Howard opened fire. Shell fired back and both men were shot. Shell was expected to live. Howard died on the scene.
Bounty hunters usually grab national attention only when somebody gets shot, but in many states, they’re an active part of the criminal-justice system. The modern bail-recovery industry, mostly identified with Wild-West-like Hollywood depictions like Dog the Bounty Hunter or the novels by Janet Evanovich, is largely invisible to the public eye. This kind of incident usually drives two separate criticisms: that America’s archaic bail system disproportionately impacts the poor, and that bounty hunters are acting as wildly unregulated quasi-police. Some areas have addressed the first with pretrial services programs that screen and release low-risk defendants. In certain states the second might be partially true—but the industry is far more sophisticated than it appears at first glance.
Doyle is retired now, but for 14 years he worked as a bail-recovery agent—the industry’s preferred term for bounty hunters. At 6-foot-3, a former Division I football player and retired soldier, Doyle might look like what you expect a bounty hunter to look like but he sounds like your buddy’s father—friendly and interested. He now works for the Veterans Affairs medical center in Richmond, Virginia.
There are four major players in the bail-bonding process: the person who has been arrested, the judge who sets his bail, the bail bondsman, and the bail-recovery agent. Bail is a security—usually money but sometimes property—paid to the court in exchange for release of an arrested person, to be returned when the defendant appears at his or her court date. A judge will typically set a higher bail for defendants who are considered a flight risk or a danger to society. A bail bondsman, backed by insurance policies, then signs a civil contract with the defendant to post bail for a 10-to-15 percent fee. Under the terms of these contracts, should a defendant fail to appear at a court date, the bondsman has the right to apprehend his or her client. If the bondsman fails to procure the “skip,” he or she is on the hook for the entirety of the bail to the court.
Although some bondsmen do their own recovery work in-house, many will contract with independent bounty hunters to apprehend skips. Bounty hunters are considered private contractors, but they are authorized to use deadly force when making an arrest.
“The first thing I thought was—we don’t have the whole story, maybe he did have a partner there—but if he did go by himself, he’s an idiot,” Doyle said. First, Doyle explains, going alone is foolish for obvious safety reasons. Second, a “skip” has multiple avenues to get out of a house and a single agent can’t possibly cover all of them.
Doyle, like most of the professionals in the business, doesn’t have a lot of patience for the “Dog the Bounty Hunter”-type of agent. “Wrong idea,” he said. “Wrong mentality.” When hiring for his team, he said he looked first for maturity. He liked former military personnel because they had the relevant training, life experience, and self-discipline that he says makes a good bail-recovery agent.
“You can spot [the cowboys] pretty quickly,” Doyle said. “If you’re in a public place, they’ve got the badge hanging from their neck, a gun hanging from their hip, three or four pairs of handcuffs hanging that everybody can see.” (Doyle’s team all had concealed-carry permits. Even before Virginia regulated the industry, it kept felons off his team.) The thing about the cowboys, Doyle said, is that they don’t last very long in the business, which is small and relies on word-of-mouth. “They get in trouble with the police and the police run them out of business if the bondsmen don’t.”
Brian Johnson, a criminal-justice professor at Grand Valley State University, is one of the few academic experts on the bail-recovery industry. If you ask him, the business doesn’t necessarily need more regulation—it polices itself. While professionalism does play a role in the incentive to self-regulate, there are also powerful market incentives to play by the rules, Johnson explained. “Bail-bond companies have a lot to lose if they engage in improper conduct,” he said.
The common perception is that bounty hunters are above the law—and in fact, they are not subject to many of the constitutional amendments that govern law enforcement. Bounty hunters are not bound by the constitutional protections against unreasonable search and seizures under the Fourth Amendment, the privilege against self-incrimination under the Fifth Amendment, or the right to counsel under the Sixth Amendment. For the most part, the industry draws its legal standing from Taylor v. Taintor, a 1872 Supreme Court ruling that allows bounty hunters to, among other things, “pursue [a fugitive] into another State; arrest him on the Sabbath; and, if necessary, break and enter his house for that purpose.”
That sounds archaic, but skips actually agree to these terms. The fugitive is a client of a bail bondsman—he or she has signed a civil contract with the bondsman that effectively gives him the right to come arrest him should he fail to appear. This contract is what gives bounty hunters the right to come on to a fugitive’s property to affect an arrest; it’s also part of the industry’s incentive not to abuse skips. It’s tough to get return business if your recovery agents have a reputation for roughing folks up. Doyle says he only kicked in two doors in his entire career and made an effort not to “embarrass” a skip during an arrest.
Bail-recovery agents may not fall under statutes for law-enforcement officials, but they are still subject to state and federal laws in general. A false arrest or false imprisonment could lead to expensive civil litigation; if a bounty hunter uses more than a “reasonable use of force to affect the arrest,” Johnson said, he or she could also face criminal charges, including assault, battery or even negligent homicide. A bondsman who hires a recovery agent with a reputation for risky behavior is taking on enormous liability. “Depending on the state, a judge could prohibit that bail agency from operating in that particular court, so they are losing a lot of money,” Johnson said. “So they self-select quality individuals.”
There are limitations to civil and criminal remedies, however. Not only must plaintiffs be able to afford legal representation, the burden is on the victim to prove that the abuse in question occurred—a tough ask if there are no eyewitnesses. But both Johnson and Doyle say that the threat of litigation and negative word-of-mouth is enough to keep the number of incidents of bounty-hunter abuse fairly low.
“When you look at the number of arrests that bail agents are enacting, events like [the shooting of Randy Howard] are relatively rare,” Johnson said. “It’s just capitalism,” Doyle concurred. “If you don’t have a product that somebody wants and desires, it’s not going to last. If you’re getting bail bondsmen in trouble because you’re abusing people or hurting your clients, people are going to tend not to come to the bondsman who in turn is going not to come to that bounty hunter.”
That analysis is anecdotal, Johnson admits. According to Johnson, even data as fundamental as the number of arrests made by bail-recovery agents nationally doesn’t exist, nor is any data on the number of false arrests available. Doyle believes that there are probably fewer improper arrests in more heavily regulated states like Virginia than states like Maryland that place fewer regulations on bail-recovery agents.
While there is a spectrum of state regulation of bounty hunters, bail-recovery agents face almost no statutory or administrative regulation in 18 states. In 2010, California allowed its legislation governing bounty hunters to lapse; it renewed the legislation in 2014, but for four years there were no active age, criminal-background limitations or training requirements for recovery agents in the state. Other states regulate but do not license agents. Tennessee, for example, does not require bounty hunters to be licensed, although a background check is required and all bounty hunters must take part in eight hours of education a year from the Tennessee Association of Bail Agents in order to work in the state.
Some states go beyond the standard age, criminal history, and training requirements. New Hampshire, New Jersey, and New York require recovery agents to have a specific number of years of experience in a public-safety-related profession. Eight states prohibit independent bail-recovery agents entirely: Licensed bail agents do not have power of apprehension in Arkansas, Florida, Ohio, and Texas, while the commercial-bail system does not exist by law in Illinois, Kentucky, Oregon, and Wisconsin.
Until the early 2000s, Virginia was one of the states that had a largely unregulated industry. That changed when 26-year-old recovery agent James Howard Dickerson shot and killed Roberto Martinez in 2003. Dickerson broke down the door of the wrong home and dragged Martinez out into the rain. When Martinez tried to escape, Dickerson shot and killed him. Martinez had no criminal record. Dickerson did.
Doyle remembers the incident vividly: The bondsman who contracted the recovery was a client of his—but Dickerson said he would do the job cheaper. “[The bondsman] got what she paid for,” Doyle says now.
In those days, Doyle said, “Some of the people they had out there picking up people were worse than the people they were picking up.” In 2002, of the 34,233 bondsmen in the state, 464 had criminal records. 157 of them had an average of four felony convictions each—and the state didn’t even know with certainty how many bail-recovery agents were active in the Commonwealth. As far as Doyle is concerned, state regulation of the industry was a great thing for the business—and other states would do well to follow suit.
Virginia now has some of the most stringent regulations in the country. The state requires 40 hours of education and an exam in order to be licensed, which comes with a fee and must be renewed every two years. Applicants must have either a high-school diploma or a GED, and cannot have been convicted of a felony nor of a misdemeanor in the previous five years.
While licensure and education requirements don’t weed out all of the cowboys, Doyle says, it does help impress upon them the limits of their authority—until the market has time to do the weeding out. “A lot of these guys think they are quasi-police officers and they can do whatever they want,” Doyle said.
Johnson’s answer is swift when asked if there is any movement towards a more regulated industry: “No.” The bail-recovery industry rarely receives public scrutiny unless there’s an incident like the killing of Roberto Martinez. Yet when such incidents do occur, it seems often out of ignorance. Perhaps because regulations are so spotty—and because of the “Dog the Bounty Hunter” mythology—many people don’t understand that they can’t just pick up a gun and go chase skips.
Some advocacy groups have criticized bounty hunting. Clifford Keenan, the director of the Pretrial Services Agency of the District of Columbia, refers to “the gamble of placing public safety in the hands of a bail-bonding industry that always will put profit before the public good.” But most criticism of the industry has treated insufficient regulation of recovery agents as a symptom of a larger systemic problem.
Critics say surety bonds contribute to the unnecessary detention of low-risk defendants and the inappropriate release of high-risk defendants who have enough money to post bail. Keenan, Oliver, and others also criticize the system for putting unnecessary and disproportionate financial strain on low-income defendants.
But even in the face of both unjustified shootings and cases like Kalief Browder—who took his own life after being incarcerated without trial for over a thousand days on a $3,000 bail—change is irregular at best. “You get these occasional events, tragedies, and everyone says: ‘Isn’t that terrible? Gee, we have to do something about the bail laws or grand juries or whatever the hell it is,’” Jonathan Lippman, the chief judge of New York’s highest court, told the state legislature in June. “And meanwhile, nothing has happened.”
There are a few reasons why nothing seems to be moving. First, the industry fulfills an important function in the extant criminal-justice system by bringing in fugitives at no cost to taxpayers (if, arguably, at the cost of the low-income and the innocent). If bounty hunters are going to face pressure from tightening regulations, it’s likely to be indirect. In Mesa County, Colorado, for example, bondsmen have reported writing about half as many bonds as they did before the county seat did away with its bail schedule—cutting down the need for bail-recovery services.
Both bondsmen and the large insurance companies that underwrite their surety bonds also have a vested interest in keeping regulations light. Groups like the American Bail Coalition actively advocate against systemic reform. “It’s big business and they want to protect that business by self-regulating themselves,” Johnson said. Bounty hunting is also woven into the mythology of American lawmen from Pat Garrett to Duane Chapman. There’s a cultural inertia behind the industry that’s hard to shift, especially for elected officials who want to look “tough on crime.”
The industry seems to be lumbering towards a more standardized mode of operation: A 2008 case-law analysis of the Fourth Amendment actions of bail-recovery agents (particularly entry without a warrant) found that while bounty hunters have fewer restrictions than state agents, “the bail bond system is slowly adhering to the rule of law.” But it is still a business that operates in the shadows. While industry members in regulated states like Virginia and Missouri are fairly open to talking about their business models, active agents in states like Maryland are more wary.
“The bail industry is old and it sort of operates invisibly,” Johnson said. “It’s there but we just don’t look into it.”
This article was originally published at http://www.theatlantic.com/politics/archive/2015/07/does-the-bounty-hunting-industry-need-reform/399224/