Congressman Charles Canady

Chairman, Subcommittee on the Constitution

Committee on the Judiciary

Congress of the United States

United States House of Representatives

Washington, D.C. 25015-6216

Chairman Canady:

This letter represents my written testimony regarding H.R. 3168, the Citizen Protection Act of 1998. I also have included my 1995 article, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, as well as a summary of that article. In addition, I enclose an article I wrote that was published in the Legal Times in September 1997, entitled A Year of Bounty Hunter Misconduct, which discusses several recent examples of bounty hunter abuses and many of the reasons they pose a unique danger to the American public. This written testimony represents my opinions only as a private citizen, and not as a federal government employee, and these views cannot be construed in any respect to represent those of the Department of Justice or any federal agency, entity, or official.

By this letter, I express my full support for the Citizen Protection Act. However, before discussing the Bill and its provisions, it must be understood that many bondsmen and bounty hunters are responsible professionals who perform their crucial and dangerous public functions admirably, allowing for the effective operation of our constitutionally guaranteed system of bail. Yet there still remain recurring, frequent, and often tragic abuses at the hands of untrained and reckless bounty hunters that endanger the lives of American citizens nationwide. It is these abuses that must be curtailed, and these bounty hunters who must be controlled, and the duty falls on Congress to act to protect the American public.

H.R. 3168 will help curtail the present abuses and control rogue bounty hunters. Having comprehensively studied the legal landscape regarding bounty hunters for several years, I believe the Citizen Protection Act provides effective solutions to three of the most significant problems presently connected to bounty hunters; and it does so without placing a significant onus on responsible bondsmen and bounty hunters. Each of these three problems is discussed in turn.

1. The most pressing danger the Bill confronts is caused by the fundamental uncertainty that bounty hunters, who act in capacities similar to the police, are trained professionals without criminal records who will refrain from abusing their broad legal powers and positions of public trust. That uncertainty is due in part to the lack of required oversight bondsmen must exercise in determining which bounty hunters to hire. At present, under modern agency law, bondsmen are able to employ bounty hunters on an independent contractor basis.⁽¹⁾ In such a relationship, as a legal matter, any abuses the bounty hunter inflicts on the public cannot be imputed to the bondsman. Because bondsmen are insulated from legal liability, they have little incentive to conduct in depth investigations into the backgrounds of the bounty hunters they utilize.

The Bill recognizes that bondsmen should not be able to hide from liability by legal technicalities associated with a bounty hunter's independent contractor status. Instead, the Bill uses a market solution and economic incentives to force bondsmen to exercise greater responsibility in their hiring practices. It creates an agency relationship between bail bondsmen and the bounty hunters they hire, under which the bondsmen will be civilly liable for any acts of misconduct committed by his hired proxy. To minimize potential liability, and maintain the lowest insurance premiums possible, bondsmen will be compelled to investigate the background and training of their bounty hunters, and only will hire bounty hunters who possess the necessary knowledge and skill to undertake the important and dangerous functions of arresting persons on bail.

While such a change will help ensure against reckless, untrained bounty hunters, it will not drastically alter either the abilities of criminal defendants to afford bail or the continued financial successes of bail bonding companies. That is made clear by examining the bail systems in Florida, North Carolina, and South Carolina, the three states with laws reflecting the type of liability scheme contemplated by H.R. 3168. See Fla. Stat. 648.37(c); N.C. Gen. Stat. § 58-71-65; S.C. Code § 38-53-120.⁽²⁾ In none of these states are criminal defendants denied access to bail in significantly greater numbers than their sister states. Nor is there a dearth of bail bonding companies; in contrast, the bail industry is highly competitive and thriving in each state. In North Carolina, there exist 1200 licensed bail agents, a number that continues to grow each year. In Florida, there are almost 1400, a figure that the Florida Department of Insurance reports has grown rapidly since 1996 when the state enacted its legislation.⁽³⁾ The South Carolina Department of Insurance also states that defendants have ample access to bail bonds. In fact, the Department of Insurance states that, if anything, South Carolina is "oversaturated" by the 300 persons licensed to issue bail, and it currently is issuing approximately new 10 licenses every month. As these states prove, the enactment of a joint liability scheme will not significantly impair the ability of defendants to make bail or diminish the profits available to bondsmen.

2. The second change contemplated by H.R. 3168 is to treat bondsmen and bounty hunters as state actors under 42 U.S.C. § 1983, and thus force them to follow similar restrictions that govern public officials in performing search and arrest functions. Such a change is long overdue for these quasi-judicial actors, and needed to protect the rights of innocent victims and criminal defendants alike.

It cannot seriously be disputed that bondsmen and bounty hunters are essential participants in the American pretrial criminal justice system; indeed, without them, bail would be a nullity. A substantial majority of arrested suspects facing bail post a surety bond,⁽⁴⁾ and as famed judge J. Skelly Wright once noted,

the professional bondsmen hold the keys to the jail in their pockets. They determine for whom they will act as surety--who in their judgment is a good risk. The bad risks, in the bondsmen's judgment, and the ones who are unable to pay the bondsmen's fees, remain in jail. The court . . . [is] relegated to the relatively unimportant chore of fixing the amount of bail.⁽⁵⁾

While bondsmen are critical to defendants' securing pretrial release, bounty hunters are equally vital in ensuring that those defendants reappear for their trial dates.⁽⁶⁾ Thus, bondsmen and bounty hunters are integral in the two most significant aspects of our system of bail -- release before trial and reappearance to stand trial.

The symbiotic link between bondsmen, bounty hunters, and the government is equally obvious. All profit financially from their association. While bondsmen and bounty hunters earn their livings from the public bail system, the government saves significant sums of money associated with pretrial detention, and having to locate, arrest, and transport back to court itinerant defendants. In addition, frequently court clerks, the police, or government-employed attorneys recommend particular bondsmen to defendants,⁽⁷⁾ and bounty hunters often work closely with the police and other state officials, trading information and even assisting in the capture of particularly elusive suspects before the state's initial arrest. Based on their symbiotic relationship with the government, and the importance of bondsmen and bounty hunters to the pretrial process, the recognition of bondsmen and bounty hunters as state actors is both legally correct and a matter of common sense. See Jackson v. Pantazes, 810 F.2d 426, 430 (4th Cir. 1987)(finding bondsmen state actor based on symbiotic relationship with state).

As state actors, bounty hunters would be prohibited from undertaking unreasonable searches or seizures, as the Fourth Amendment mandates, or coercing confessions, as the Fifth Amendment proscribes. Of course, as a factual matter, given that the role a bounty hunter is merely to arrest a defendant and transport him to court, and not as a police evidence gatherer, such requirements should not mar bounty hunters in their primary efforts. At the same time, the American public can be assured that the broad powers currently possessed by bounty hunters to enter private residences without a warrant and make arrests will not be misused to invade the privacy rights of innocent victims and bystanders, as well as defendants.

3. Finally, the Act recognizes the inherent interstate aspects associated with bounty hunting. While it does not prohibit bounty hunters from crossing state lines to arrest and return a fugitive to the court of jurisdiction, as bounty hunters often do, it does mandate that bounty hunters perform the simple, ministerial act of notifying the police in the locale where the arrest is to take place. As a practical matter, this will help to prevent potential confusion between arresting bounty hunters and local law enforcement authorities, guarantee that bounty hunters comply with any applicable state laws, and ensure that innocent victims are not transported from their home state to foreign jurisdictions.

The Citizen Protection Act's three primary provisions will, in my view, help to cure many of the abuses currently caused by untrained and dangerous bounty hunters without impairing the nation's bail system. Nor do these provisions, which are moderate in nature, intrude in any regard on the rights of individual states. The Bill does not hinder states in the operations of their state bail systems, but the provisions are limited to areas in which only Congress can act, areas involving federal civil and constitutional rights and interstate activities. States remain free to enact supplementary legislation deemed appropriate to protect their respective citizens, such as licensing and training requirements for bounty hunters.⁽⁸⁾

I therefore express my full and unmitigated support for H.R. 3168, and urge its rapid passage into law.

Jonathan Drimmer

SUMMARY

WHEN MAN HUNTS MAN: THE RIGHTS AND DUTIES OF BOUNTY HUNTERS

IN THE AMERICAN CRIMINAL JUSTICE SYSTEM

When Man Hunts Man is a comprehensive attempt to study the history and legal rights of bounty hunters in the United States. It examines the frequent abuses bounty hunters currently inflict on the American public, and recommends that bounty hunters and the bail bondsmen who hire them be considered state actors based on the vital role both play in the American criminal justice system.

Beginning in Medieval England, bounty hunters, and the bondsmen who hire them, have served as state proxies in the pretrial criminal process. After a felony arrest, most defendants, to be released from prison until trial, hire a bondsman to post a bail bond with the court. The state then delivers legal custody of the defendant to the bondsman, whose bond is refunded only if the defendant returns to court for trial. When the state gives the bondsman custody of a defendant, it recognizes comprehensive powers to search for and arrest that defendant. To guarantee that defendants properly appear in court, bondsmen often employ professional bounty hunters who share the bondsmen's sweeping powers.

These rights have largely remained unchanged since the United States adopted England's common law rules regarding defendants on bail following the Revolution. Those common law rules, in turn, came to resemble their present state in England in the Thirteenth Century when sheriffs would release defendants into the custody of sureties.

As stated by the Supreme Court in Taylor v. Taintor, 83 U.S. 366 (1873), bondsmen and bounty hunters have the legal right to arrest a defendant before or after a trial date, to break into the defendants home to make such an arrest, and to imprison a defendant until custody can be transferred back to the state. In fact, bounty hunters generally can break into the home of a third party if the defendant is inside, and are entitled to use all reasonable force to subdue a defendant -- including deadly force where necessary, similar to the police.

Courts historically have construed these rights to derive not from any state or judicial process, but to be implicit in the very nature of bail. Thus, whenever bail is posted for a defendant, the law presumes the existence of a contract under which the defendant is deemed to consent to being arrested by the bondsman or his agent at any time, in any place, for any reason, using all necessary force. This presumption exists regardless of whether there is an actual bail contract or the defendant is aware of the rights he is deemed to forfeit.

Because the law considers the rights of bounty hunters to emanate from private contract, courts have traditionally refused to recognize bounty hunters or bondsman as state actors. Accordingly, bounty hunters are not subject to the constitutional restrictions of police officers who perform the very same search and arrest functions. These restrictions include the Fourth Amendment's warrant, search and seizure, and knock and announce requirements, and the Fifth Amendment's proscription on improper interrogations. They also include the Constitution's Interstate Extradition Clause, which thus allows bounty hunters simply to seize a defendant and transport him over state lines without notifying the police or any public official of the arrest.

At the same time, although bounty hunters essentially are enforcing a debt owed by the defendant to the bondsman, bounty hunters enjoy substantially greater authorities than ordinary debt collectors. While such debt collectors are private citizens and not subject to the constitutional restrictions of police officers, the Federal Debt Collection Procedures Act ("FDCPA"), 15 U.S.C. § 1692-1692o, strictly and comprehensively regulates the types of contacts debt collectors may initiate with debtors. Among its provisions, the FDCPA prohibits collectors from making threats, physical assaults, and oral or written misrepresentations. The Act also requires that debt collectors offer a "mini-Miranda" statement when confronting a debtor, which includes informing the debtor that the collector is seeking to enforce a debt and that any statements by the debtor can be used against him for that purpose. See 15 U.S.C. § 1692(e)(11). Moreover, regardless of the contractual terms between a debtor and lender, debt collectors who search debtors' homes without consent, or attempt to restrain debtors physically, can be civilly and criminally liable. In stark contrast, bounty hunters have the authority to break into a defendant's home at any time, arrest the defendant, lawfully search for and seize any evidence within the defendant's home, and attempt to elicit from the defendant incriminating statements for use at trial without providing any Miranda warnings.

While bounty hunters enjoy substantially broader rights than either the police or private debt collectors, they rarely are subjected to any state regulations, such as licensing requirements, training requirements, and background checks. That lack of governmental oversight has resulted in common, nationwide abuse at the hands of bounty hunters. Such abuses include bounty hunters' violent and sometimes deadly infliction of excessive force against defendants, bystanders, and innocent victims alike; bounty hunters' terrorizing startled bystanders and innocent victims by breaking into their homes and drawing their weapons; bounty hunters' arresting innocent victims and transporting them over state lines; and bounty hunters' causing significant and unnecessary property damage.

In seeking a solution to these abuses, outlawing bounty hunting or significantly curtailing their rights would be imprudent. Bounty hunters perform a useful social function in arresting frequently dangerous fugitives at no cost to the state or taxpayers. Based on bounty hunters' focused expertise and economic incentives in seeking to recapture bail jumpers, the return rate for defendants released on private bail is significantly higher than for defendants released from jail through other methods.

In addition, bounty hunters and bondsmen are crucial to the bail process; indeed, without them, the bail system would be a nullity. Bondsmen largely determine whether a defendant even will be released on bail before trial, and it frequently rests solely with bounty hunters to guarantee that these defendants return to court for trial. In light of mounting and competing costs associated with law enforcement and pretrial detention, in conjunction with prison overcrowding and a high national crime rate, bondsmen and bounty hunters also save the public significant sums of money.

The most reasonable alternative to eliminating the powers of bounty hunters while nonetheless protecting the American public from the current and routine abuses and allowing bounty hunters and bondsman to continue their vital public services is to recognize bounty hunters as state actors. Like private prisons, which also play an important role in the criminal justice process, bounty hunters should be subjected to the same restrictions as other public officials in carrying out their important functions. These would include the restrictions associated with the Fourth and Fifth Amendments, as well as the Interstate Extradition Clause. Such restrictions not only would create a modicum of protections to the American citizenry, but would allow for the abiding benefits bounty hunters and bondsmen currently provide.

Biographical Statement: Jonathan Drimmer received his bachelor's degree from Stanford University in 1990, and his law degree from UCLA School of Law in 1993. He served as a Judicial Clerk for Judge David R. Thompson, of the United States Court of Appeals for the Ninth Circuit in San Diego, California, from 1993-1994, and then worked as an attorney in the Office of the Solicitor General, in the United States Department of Justice. He then moved to the law firm of Covington & Burling, and very recently rejoined the Department of Justice in its Criminal Division. He has written a number of articles on bounty hunters, and has been widely recognized as one of the nation's few experts on the laws involving bounty hunters. HE WAS INVITED HERE TODAY IN HIS CAPACITY AS A PRIVATE CITIZEN, AND NOT AS AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE. HIS VIEWS THEREFORE ARE HIS OWN, AND DO NOT REPRESENT IN ANY RESPECT THOSE OF THE DEPARTMENT OF JUSTICE OR ANY GOVERNMENTAL ENTITY OR OFFICIAL.

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1. See Coastal Bail Bonds, Inc. v. Cope, 697 So.2d 48, 53 (Ala. Ct. App. 1996)(Crawley, J., dissenting)(bounty hunters "have generally been considered independent contractors under the common law"); Division of Employment Security v. Hatfield, 831 S.W.2d 216 (Mo. Ct. App. 1992)(bounty hunter independent contractor); see also Ruiz v. Herrera, 745 F. Supp. 940 (C.D.N.Y. 1990)(allowing discovery into whether bounty hunter was independent contractor or agent, and thus whether bondsman could be liable).

2. Although a recent judicial ruling in Ohio states that henceforth bondsmen and bounty hunters will be jointly liable for a bounty hunter's misconduct, that ruling has not been in effect for a sufficient period of time to gauge its impact on the bonding industry in that state. See Hayes v. Jeff Goldstein/ABC Bail Bonds, No. 70791, 1997 Ohio App. Lexis 703 (Ohio Ct. App. Feb. 27, 1997).

3. According to the Department of Insurance, the legislation enacted by Florida had little impact on the rate of increase in the number of licensed bail agents in the state. In 1978, there were approximately 350 such agents. Ten years later, in 1988, there were about 700. In 1994, when Florida created the joint liability scheme, there were 1100 licensed agents. Today, there are almost 1400.

4. See Bureau of Justice Statistics, Pretrial Release of Felony Defendants, 1990, at 2-3 (1992) (stating that approximately 60 percent of persons freed before trial on bail posted a surety bond).

5. Pannell v. United States, 320 F.2d 698, 699 (D.C. Cir. 1962)(Wright, J., concurring).

6. According to one study, 99.2 percent of all suspects committed to the custody of bondsmen are returned to court. See Charles Oliver, National Issues, Investor's Bus. Daily, May 12, 1994, at 1 (the private bail system has a 0.8% fugitive rate); 2 Aggies Devise Plan to Curb Crime, Houston Chron., Jan. 2, 1993, at 26. A 1990 study by the Burean of Justice Statistics states that, among the nation's 75 most populous counties, the figure is 3 percent. See Bureau of Justice Statistics, Pretrial Release of Criminal Defendants, 1990 8-9 (1992).

7. See Malcolm M. Feeley, The Process is the Punishment 96-108 (Russell Sage ed., 1992); Paul B. Wice, Freedom for Sale 55 (1974).

8. Unfortunately, at present, only seven states have such licensing schemes.