Out On Bail: The Function And Enforcement Of Bail In America

There is a certain mystique surrounding bail bondsmen and the bounty hunters hired to enforce bail. Most of the public perceives this line of work as shady, and straddling the line between legitimate and criminal. Bail bondsmen are thought to associate with criminals, exploit those in need, hire trigger happy bounty hunters, and operate above the law. These are common misconceptions fueled by inadequate knowledge of the bail bonding system and the incorrect portrayals of bondsmen and their agents in Hollywood films and television shows. In reality, most bondsmen are not ex-cons or felons. They are hard working men and women that operate a legitimate business. Bondsmen function to keep county and city jails from becoming more overcrowded, and reduce the portion of taxpayer money that goes to housing arrestees awaiting trial. Those who are bonded out of jail are still considered in custody, but it is the custody of the bondsman. This relieves the state of a significant financial burden of feeding and housing every person arrested until their trial date. With the Constitutional presumption that a defendant is innocent until proven guilty in a court of law, he does not have to wait eight to ten months in jail until trial. Bondsmen serve a function essential to the criminal justice system by ensuring that the persons they bond out of jail will be present for trial. Because the defendant is still considered in custody while out on bail, bondsmen have rights similar to law enforcement agents to ensure their apprehension. [FN 1]. They are responsible for the return of over 90% of those who skip bail, while police officers only account for 10% of recaptured skips. [FN 2]. It is the method by which skips are recaptured that usually draws attention to the bail bonding system.

The latest incident depicting the ruthlessness of bounty hunters took place in Phoenix in 1997. [FN 3]. Because of the magnitude of the crime, the story got nationwide attention. Acting as bounty hunters, five men raided a house searching for a bail skip. When they entered the bedroom, the resident pulled a gun and a firefight ensued. When the smoke cleared, two of the bounty hunters had been hit and a man and woman lay dead in their bed. The men claimed a case of mistaken identity while searching for a man that skipped a $25,000 bail. The story was uncovered to be a scam and the men robbers, yet it left a funny taste in the mouth of the nation. [FN 4]. People wondered if real bounty hunters could bust into homes with guns drawn, and were surprised to learn that they could.
In spite of this incident, controversy surrounds the system of bail in America today. People are discovering that some men with no law enforcement training are doing some of the jobs that they thought only police could do. The media has over emphasized the flaws in the system, but flaws still exist. Bondsmen and bounty hunters are aware of the inherent risks in recapturing a skip, but sometimes accidents happen. Recently a great shock was felt by the Huckabee Bonding Agency in Chattanooga, Tennessee. Bounty hunter Lewis Rhodes, Jr. was shot and killed while attempting to recapture a bail jumper named Hal Achley. This tragic loss shows more is at stake than just the forfeiture of the bail. A loss such as this is precisely why proper training is needed for all bondsmen and agents who engage in the recapture of bail skips. Bail bondsmen and their agents do have broad powers to recapture those they write bonds for, but those powers are absolutely necessary. State regulation is the most effective way to deal with the potential problems in the industry. Background checks are essential so felons or ex-cons will not be in the position to abuse the power of a bondsman. Training and education are needed to lessen the potential for violence. By enacting proper licensing requirements, states can be more confident the right people are doing the job correctly. The bail bonding system will not be seen as a necessary evil, but a smoothly functioning part of the criminal justice system.

The Roots of Bail

The closest relative of the American system of bail can be traced to 13th Century Medieval England. [FN 5]. In this era, criminal matters were handled by Magistrates who traveled across the countryside from village to village. An individual who was accused of a crime would be brought before the Magistrate by the Sheriff. Unfortunately for the accused, the Magistrates traveled slowly, and their visits were few and far between. [FN 6]. As a result, the individual arrested usually spent months under the lock and key of the Sheriff. As time went on, Sheriffs began allowing those awaiting to be heard by the Magistrate to return to their work on the promise that they would be present for trial. The prisoner’s release would be conditioned on the promise of a family member that they would be returned. [FN 7]. Originally this promissor could be required to stand in place of the accused if he was not returned, but this provision was ultimately relaxed. [FN 8]. Third party promissors were soon allowed to pledge land to secure the release of the accused, which the Sheriff would seize if they were not present for trial. While seemingly harsh, the system worked extremely well under the social conditions of England at the time, and actual forfeitures of land were rare. Travel was uncommon, and those awaiting to appear before the Magistrate rarely fled. England was very populated, and there were very few places for a fugitive to run and hide. Most sureties were the families of the accused and their land was the only means of survival. These social factors provided as great a disincentive for flight as did a prison cell. The concept that the accused was still a prisoner and the surety assumed the role as the jailer was therefore extended over the relationship. [FN 9].
The concept of a suretyship over accused criminals made its way with the colonists from England to the United States. The system that worked exceptionally well in England was much less effective in the new land. [FN 10]. The community structure in America was entirely different than that of England. Land was initially used to secure the release of the accused, because of its value as a scarce resource. This was not the case in America where the land seemed to stretch ever westward. Fugitives had places to hide as new towns and communities were constantly springing up. The strong community roots of England were not present because of the westward expansion and ease of mobility. The original sureties were no longer confident in pledging property to secure the release of anyone. Absent the original constraints of family pressures and a much smaller country in which to flee, flight risks of the accused dramatically increased. Most accused had no family or property which would act as a restraint to flight in such a vast expanse of land. To account for this new risk of flight, money was allowed to be pledged as bail. This innovation allowed many commercial ventures to sprout up, which would assume the risk of flight for a monetary fee. [FN 11]. Understanding the demand and potential for profit, the commercial bail bondsman opened his doors for business, and began the American system of bail. [FN 12]. The only problem that bondsmen would run into is what they would do if the accused did not show up for trial. The English concept that the accused’s incarceration was a continuous event and the surety had the same duty as the sheriff, continued as the underlying principle behind the bondsman’s rights of recapture. [FN 13].
The Powers of Bail Bondsmen and Their Agents
Bail bondsmen make their living by collecting fees from the defendants they post bonds for. This fee is usually ten percent of the bail set by the court. While it seems like a safe business venture, the fee they collect is not without risk. If the defendant fails to appear for trial, the bondsman will forfeit the entire amount of the bail to the court. [FN 14]. Usually this forfeited sum will be returned to the bondsman if the defendant is produced within 180 days. Because the bondsman is not in the business of paying out money, he will undoubtedly pursue the wayward defendant.
The recapture of the defendant is essential to the bondsman recovering a large forfeited amount of money. [FN 15J. The re-arrest of a fleeing defendant is fraught with many potential problems. In order to deal with these problems in effectuating the arrest of a defendant that has skipped bail the bondsman or his agent is allowed significant leeway under the law. This leeway given to a private individual is a continuation of the English concept that the defendant is still considered in prison and the surety is the jailer. [FN 16]. United States courts have always stood behind this theory, and allowed bondsmen to use the necessary force to recapture the skip.
The law behind the recapture of a skip has remained unchanged since the first cases of the early 19th century. The case of Nicolls v. Ingersoll was heard by the New York Supreme Court in 1810, and set forth law which was late~ adopted by the United States Supreme Court. [FN 17]. Suit was brought by Nicolls against two bounty hunters, Ingersoll and Morgan to recover damages for injuries he sustained while being recaptured. The lawsuit was based on theories of trespass, battery, and false imprisonment. Nicolls had been arrested in Connecticut, and contracted with a bail bondsman to secure his release. Upon hearing that Nicolls had gone to New York, the bondsman hired two bounty hunters to bring him into custody before the trial date. Nicolls alleged the bounty hunters broke down the door in the middle of the night and violently took him into custody. At trial the jury found for the defendants, and Nicolls appealed. [FN 18]. The court held that a bondsman or his agents were free to cross state lines to apprehend the defendant. The court stated, ~It cannot be questioned, but that bail in the common pleas would have a right to go into any other county in the state to take his principal; this shows that the jurisdiction of the court in no way controls the authority of the bail; and as little can the jurisdiction of the state affect this right, as between the bail and his principal.” [FN 19]. Bondsmen are not confined by jurisdictional boundaries, and can effectuate the re-arrest of the defendant in any state. The court went on to illustrate that the bondsman assumes the same powers as the Sheriff, as if to recapture an escaped prisoner. As to this theory, the court stated, ~Bail, in the language of the books are said to have their principal always upon a string, which they may pull whenever they please, and surrender him in their own discharge. They may take him up, even on a Sunday, and confine him until the next day, and then surrender him. The doing so on Sunday is no service of process, but rather like the case where the Sheriff arrests a party who escapes, for that is only a continuance of the former imprisonment.” [FN 20]. Finally, the court illustrated the amount of force that a bounty hunter could use. The court stated, “That the bail may break open the outer door of the principal, if necessary, in order to arrest him, follows, as a necessary consequence, from the doctrine, that he has the custody of the principal; his power is analogous to that of the Sheriff, who may break open an outer door to take a prisoner, who has escaped from arrest.” [FN 21]. The court was not reluctant to illustrate the broad powers that a bondsman, or his agents as bounty hunters, have in order to recapture the defendant.
The rationale of the New York Supreme Court was adopted by the Supreme Court of the United States in its decision of Taylor v. Taintor, in 1872. The issue examined by the Court dealt with bail forfeiture. While the issue had little to do with the powers of bondsmen, the Court went ahead and summarized the law. The Court stated, “When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, break and enter his house for that purpose. The seizure is not made by the virtue of new process. None is needed. It is likened to the re-arrest by the Sheriff of an escaping prisoner.” [FN 22]. This statement of the common law is still good law today. The rights of bondsmen and bounty hunters to use necessary force have gone unchanged essentially from their inception.
Even with a large monetary incentive and the availability of strong rights to apprehend a bail skip, people still choose to flee. The percentage of skips is usually around 10 to 15 percent, depending on the risk the particular bondsman is willing to take. A bondsman is under no obligation to secure the release of anyone. It is entirely in his discretion who he will contract with. Nevertheless, the market is very competitive, and sometimes financial pressures induce bondsmen to take risks. Risk assessment is the pivotal decision in the day to day affairs of the commercial bail bondsman.
Day to Day Business
The day to day business of a bail bondsman is best seen from the inside. The following information about a bondsman’s daily business was obtained in an interview of a bail bondsman who owns a Nashville bail bonding company. [FN 23J. The job function of a bail bondsman consists of essentially five parts: the requirements for starting a bonding agency, the bail process, screening and risk determination, maintaining contact with the defendants, and apprehending defendants that fail to appear for trial.
The requirements for starting a bonding agency go hand in hand with the bail process, yet starting an agency is fairly simple. First, a petition must be filed with the court to become a bail bonding agent. An appearance is made before a Judge and the District Attorney, who determine if the petitioner should be allowed to become a bail bondsman. Usually in the absence of a felony, the petition is granted. [FN 24]. The biggest requirement to begin a business is that an agency must have a writing capacity of $100,000. The writing capacity determines how many clients a bondsman can have at one time. When a bondsman accepts a client, he does not pay the client’s bail up front. The writing capacity of the bondsman is encumbered by the full amount of the defendant’s bail. While the bondsman does not have to pay this money up front, he may only accept clients up to the limit of his writing capacity. Only if the defendant fails to appear for trial, is the bondsman liable for the full amount of the defendants’ bail. When the defendant appears for trial, the amount of the bail becomes unencumbered, and the bondsman may accept more clients. Insurance against forfeiture of bail is not required to begin a bonding agency. Some bondsmen choose to be backed by insurance companies, but many do not. The filing of a petition and proof of the $100,000 writing capacity are the only significant requirements for starting a bail bonding agency.
The bail process itself is not very complex. When a person is arrested, he is brought before a magistrate for a probable cause hearing. If the Magistrate determines there is probable cause to hold the arrestee, a trial date is set and he is turned over to the custody of the Sheriff. The amount of bail is then set, usually according to the severity of the offense and the likelihood of flight. Bail is usually granted in all but capital cases. The arrestee now faces the choice of staying in jail until his trial, putting up the entire amount of the bail, or contracting with a bail bondsman. The latter is usually the choice arrived at by the arrestee. However, if he is able to produce the full amount of the bail, it will be returned in full when he appears for trial. Few arrestees are able to come up with the full amount of their bail, so they contract with a bail bondsman.
The contract between the defendant and the bail bondsman is a deal in which the bondsman secures his release for a fee and the provision that he must appear for trial. The standard fee is 10% of the face of the bail, which is non-refundable even when the defendant appears for trial. Different states may allow other flat charges, as Tennessee allows a $25 processing fee and a $12.50 tax on all bonds written. [FN 25]. No matter how small the bond, most prudent bondsmen require a co-signer. Larger bonds may require these co-signers to pledge personal or real property as collateral. Car titles are sometimes accepted as security, but obtaining the property on default can sometimes prove troublesome. Ideally, the bondsman will have a family member pledge real property by quick deed, which is deeded back when the defendant shows up for trial. This is regarded as the best type of security, mainly because of the family’s pressure on the defendant not to flee. Even with all of these steps to secure the bond, defendants still skip town.
The bondsman has the ultimate decision of which clients to take, so the ability to screen and evaluate flight risk is essential. There is no set formula to determine which defendants will jump bail, and each individual bondsman follows his own criteria and intuition. The main factors in evaluating flight risk are the availability of a co-signer, the defendant’s community ties, and the particular offense the defendant is charged with.
The bondsman will almost always write a bond when a cosigner pledges property as collateral. The availability of a cosigner shifts the risk of forfeiture from the bondsman to a third party. In most cases the third party is a family member or girlfriend who will keep in contact with the bondsman and make sure the defendant is present for trial.
The ties the defendant has in the community are also important for evaluating the risk of flight. A resident of the community is less likely to flee, especially when the charge is a misdemeanor. Even if the defendant does not show up for trial, he is usually hiding out with a friend, relative, or• girlfriend-in the community. Rarely do these defendants even have the means to leave the state. People that are not from the community or live in another state are obviously more likely to leave the locality and miss the trial date. Most bondsmen will not write bonds for these people without a co-signer and full security. Non-resident defendants have become more common with the influx of Hispanic laborers. They often travel in groups, and move around following the work. These people are very mobile and usually return to Mexico either voluntarily or by deportation. Nevertheless, their friends are usually able to come up with a large enough portion of the bail in cash to induce the bondsman to write the bond. The bondsman is usually comfortable with this transaction because of the strong social factors amongst these groups that deter the flight of the defendant.
The particular offense the defendant is charged with usually has little bearing on the screening decision. The one exception is that bondsmen rarely post bail for anyone charged with a drug trafficking offense. These individuals have no incentive to return for trial. All other offenses are usually treated the same when evaluating a flight risk. The severity of the crime charged is only a factor when determining the amount of bail. Even if the amount of the bail is extremely high, more than one bonding agency will write the bond. It is a common practice for bonding agencies to split the amount of bail based on their writing capacity. The analysis of the flight risk then returns to the availability of co-signers and sufficient property to be pledged as collateral.
Once the bondsman has written the bond, the defendant is released from jail. The average time from arrest to trial is nine months, which could give the defendant a large head start if not somewhat supervised. Therefore, it is important for the bondsman to keep contact with the defendant and the co-signers. Not everyone who misses their court date has intentionally fled. Nearly half of those who miss their court date either forget to go, cannot find a ride, or cannot arrange childcare. This is why it is a good idea to contact the defendant, the co-signers, and the defendant’s attorney before the trial date. It is always easier for the defendant to make it to trial himself than for the bondsman to take him.
Unfortunately, there are some instances when the defendant intentionally misses the court appearance. The inherent risk of the bail bonding business is the inevitable forfeiture of the bond. When a defendant skips bail, the bondsman has 180 days to deliver the skip to the court. This is the deadline to recover the full amount of the forfeited bail, but it is not absolute. If a skip is returned after a reasonable period of time after the initial 180 days, a portion of the bail is usually returned. For example, 90% of the bail would be returned after an additional 30 days and only 50% after an additional six months. The additional problem is that the bondsman cannot rewrite on a skipped bail, so the writing capacity remains encumbered. It is therefore very important for the bondsman to apprehend the skip. Depending on the agency, a bondsman may go out on his own to apprehend the skip, or he may hire bounty hunters to act as his agents. Some bondsmen have previously worked as bounty hunters and prefer to recapture skips themselves. Their decision also depends on the volume of business and their availability to step out of the office for a few days. When a defendant misses the trial date, there are a few initial steps before the hunt begins. The first step is to contact the co-signers. They usually know where the skip is and are willing to lead the bondsman to him, if not bring him in themselves. It is ~lso important to get daily copies of the court dockets to check for any re-arrests. Local defendants often get re-arrested, or miss the court date because they have been picked up on a new offense. If the skip cannot be found by these basic preliminary measures then the bond should be
surrendered to the court on cause. After this forfeiture, a certified copy of the capias can be obtained. It is a good practice to obtain a certified copy of the capias prior to arresting a skip, especially if finding him would require crossing state lines. Still, most states only require a certified copy of the bonding certificate to effectuate an arrest. The bondsman or bounty hunter may go anywhere in the United States and its territories. Skips may be taken out of Mexico, but only when the authorities allow it. Locating the skip is only half of the problem. Safely apprehending him is the crucial factor.
Safety is a large concern when apprehending a skip, because they may not be especially pleased with the thought of returning to jail. Bondsmen have the power to use the necessary force to effectuate the arrest, including deadly force if it is necessary. This does not mean that they want a showdown or any violence. Most bondsmen and bounty hunters work together to protect themselves and assure the arrest goes smoothly. Most of the skips are captured without incident. Skips are aware that bounty hunters are armed, and they usually give them more respect than police officers. This is because most skips are repeat offenders. They know that if they cause any problems the word will get out, and no bondsman will write a bond for them in the future.
Technological advancements have also aided in locating defendants that have skipped bail. Many bail bondsmen have web sites on the Internet where they can post pictures of skips. Most
of the skips are not criminal masterminds and are hiding out with a relative or girlfriend in the area. Posting their pictures on the Internet or the newspaper with the promise of a reward has become an inexpensive but effective way to locate these defendants. A cash reward is usually given to the individual whose tip results in the capture of the defendant by the bondsman. A neighbor, the convenient store clerk, or whoever identifies the defendant and alerts the bondsman has become somewhat of a bounty hunter. They get a cash reward for providing only the location of the defendant. It is the bondsman who takes the risk and makes the ultimate arrest. The last thing a bail bondsman wants to do is have to track down a defendant. Every possible precaution is taken to reduce the chances that the defendant will not show up for trial. Only a small percentage of the bonds written are ever forfeited, and most of the bondsman’s time is spent behind a desk. This is the side the job rarely shown on television or in the movies. In reality, bondsmen do not sit behind their desks polishing their revolvers, waiting for a chance to join in a manhunt. They are businessmen who would rather bring home a check to their families.
Regulation of the Bail Bonding Industry

An essential function of any government that attributes special powers to designated individuals is a system of checks and balances designed to curtail the potential for the abuse of power. In tpe case of bail bondsmen, they are private individuals that have the sweeping powers of the Sheriff and police officers, based only by contract. The government grants law enforcement agents the powers necessary to maintain order and provide public safety. Under the color of the law, they may use necessary force to place individuals in custody when they have probable cause to believe an offense has been committed, or if they have a warrant from a showing of probable cause. These powers of arrest and force also come with limitations and restrictions. The two main constraints on law enforcement agents are the Fourth Amendment and civil liability based on civil rights violations. [FN 26]. The 4th Amendment protects individuals from unreasonable searches and seizures, and applies to all law enforcement officers, as they 4th are state actors. Any evidence obtained in violation of the Amendment will be excluded at the trial of the defendant. By not admitting illegally obtained evidence in trial, law enforcement agents are more likely to play by the rules so the perpetrators they arrest will not be released back onto the streets. [FN 27]. The government also waives sovereign immunity where a governmental agent violates the civil rights of an individual. [FN 28]. This amenability for suit also holds law enforcement agents accountable for their actions. These major constraints on the powers afforded law enforcement agents have little effect on bail bondsmen or bounty hunters. [FN 29].
Bail bondsmen and their agents essentially have the same powers as the Sheriff in recapturing an escaped prisoner. These broad powers are obtained only by virtue of a contract, not the status of law enforcement agents, however, bondsmen and bounty hunters enjoy even less restrictions than law enforcement agents. They are free from any jurisdictional constraints, and can travel freely from state to state. [FN 30]. They may break down the door to a dwelling without a warrant or announcing themselves. Any evidence they obtain is admissible at trial without any 4th Amendment analysis. They do not have to Mirandize those they capture, and incriminating statements of the defendant may also be admitted at trial. Bondsmen and their agents are not state actors, so constitutional restraints do not apply to them. Bondsmen and bounty hunters may be sued, but most are either illusive or have insufficient assets to satisfy a judgment. Nevertheless, their powers to use the force necessary to recapture the defendant have not changed since the days of Taylor.
The powers afforded bondsmen and their agents are appropriate, and the law outlined in the Taylor decision should not be changed. The best approach to curb any abuse of power is for states to regulate who may become a bail bondsman or bounty hunter. Certain restrictions should be put into effect to keep the broad powers of bondsmen out of the hands of those most likely to abuse them. States have begun implementing licensing requirements and placing restrictions on bondsmen and bounty hunters. Mississippi requires a bail bondsman and his agents to be licensed by the State before they begin operating. Mississippi will not issue a license to any ~person who has ever been convicted of a felony or any crime involving moral turpitude.” [FN 31]. The petitioner must also be over the age of twenty-one and been a resident of Mississippi for at least a year. [FN 32]. These restrictions defeat the old notion that bondsmen and bounty hunters are felons. They help eliminate the potential problems of allowing ex-cons to operate with the significant powers of bail bondsmen. While the background of a person is an important factor for determining their fitness to operate as a bail bondsmen, education in the field is also paramount. Mississippi also requires a petitioner to complete eight hours of pre-licensing education that has been approved by the Professional Bail Agents Association of Mississippi, Inc., and eight hours of continuing education every year following. [FN 33]. Proper training is crucial in a field with the potential for violence. Tennessee has similar licensing restrictions for those petitioning to become bail bondsmen, but most of the regulation deals with bail enforcement. [FN 34]. These regulations focus on the aspect of the bail bonding process with the largest potential for problems: the recapture of the defendant. For purposes of recapture, the bail bondsman and bounty hunter are bound by different provisions. The bail bondsman has the authority to arrest the defendant at any time, with a copy of the bond certificate. [FN 35]. If the defendant skips the trial date, the bondsman may make the arrest on a certified copy of the capias, or he may authorize an agent to make the arrest. [FN 36]. The regulations are stricter with regard to the bondsman’s agent. The bounty hunter ~is defined as a person who acts as an agent of a professional bondsman who attempts to or takes into custody a person who has failed to appear in court and whose bond has been forfeited, for a fee, the payment of which is contingent upon the taking of a person into custody and returning such person to the custody of the professional bondsman for whom the bounty hunter works.” [FN 37]. In order for the bounty hunter to make the arrest in Tennessee, he must first make a good faith effort to verify the person’s address. [FN 38]. Then he must present to the office of the law enforcement officer of the political subdivision where the taking will occur:
(1) A certified copy of the underlying criminal process against the defendant;
(2) A certified copy of the bond or capias;
(3) Proper credentials from a professional bondsman in Tennessee or another state verifying that the bounty hunter is an agent of a professional bondsman; and
(4) A pocket card certifying that the bounty hunter has completed the training required by this section or, if the bounty hunter is from a state other than Tennessee, proof that such bounty hunter successfully completed an equivalent amount of training in the bounty hunter’s home state within the last year.” [FN 39].
These provisions act as safeguards to prevent cases of mistaken identity, and the capture of the wrong person. If a bounty hunter captures a person without first providing the required information, it is a Class A misdemeanor. [FN 40J. It is also a Class A misdemeanor for a bondsman to knowingly hire a felon as a bounty hunter. [FN 41]. The Tennessee regulations aim at the source of where the greatest potential for harm will occur. These regulations do not take away any powers, but simply place restrictions in the interest of safety.
State regulation of the bail bonding industry is the best method to promote safety. Every part of the criminal justice system has an important function to the operation of the whole, and the bail system is no exception. Every part of the system must be regulated so the machine runs smoothly and effectively. Bail bondsmen should be subject to background checks, have proper training, and pass specific tests, just as law enforcement officials. For a person to be able to step into the shoes of a law enforcement officer, he must first be trained to act as one.
While background checks and training requirements will lessen the potential for personal injury, insurance should also be mandatory for all bail enforcement agents. If a bounty hunter oversteps his bounds and illegally injures a defendant while bringing him into custody, the defendant should be compensated for the harm. [FN 42]. Most bounty hunters do not have insurance, nor do they have sufficient assets to satisfy a judgment against them. [FN 43]. Requiring insurance would ensure financial responsibility if a bounty hunter wrongfully injures a defendant, or if there is a case of mistaken identity.
It is within the state’s policing powers to regulate the bail bonding system, however, some states have taken an extreme stance in the regulation. In 1976, Kentucky passed legislature outlawing commercial bail in the state. [FN 44]. The law stated:
It shall be unlawful for any person to engage in the business of bail bondsmen… or to otherwise for compensation or other consideration:
(a) Furnish bailor funds or property to serve as bail; or
(b) Make bonds or enter into undertakings as a surety; for the appearance of persons charged with any criminal offense or violation of law. [FN 45].
This law was immediately met with opposition from commercial bail bonding agencies in Kentucky. The Supreme Court of Kentucky upheld the law in Stephens v. Bonding Association of Kentucky, finding that it neither violated the 14th Amendment of the U.S. Constitution nor Section I of the Kentucky Constitution. [FN 46]. The bonding agencies argued that while ~the business of commercial bail bondsmen can and should be regulated under existing statutory provisions … the abolition of the commercial bail bondsman is an unreasonable regulation without furtherance of any substantial public purpose.” [FN 47]. The Court found that it was ~within the province of the legislature to assimilate, consider and weigh all the factors inherent in the concept of public welfare.” [FN 48]. The Court was of the opinion that the system of bail was flawed and the legislature’s ban on it was constitutional. In coming to this conclusion, the Court declared as to bail bonding, ~It does not have protection as an integral part of the judicial process that will require this court to invalidate a new system designed by the General Assembly to remedy the evils of the existing system and at the same time provide adequate guarantee of pretrial release.” [FN 49]. The State of Kentucky chose to use its police powers to eliminate bail bonding instead of regulating the industry. States should be wary of curing the headache by cutting off the head. Bail bondsmen serve an important role, and eliminating them altogether would seriously overburden the existing law enforcement officers. A few simple regulations can go a long way. They not only make the business more legitimate in the eye of the public, but also greatly increase safety.
Conclusion
The system of commercial bail in the United States is as old as the nation itself. The concept of releasing an accused criminal on the promise of a third party to secure his return is nothing new.. It has been traced back to Medieval England, and varying types of bail systems have been seen around the world. However, no other society has a system of bail that mirrors the commercial bail system of the United States.
Releasing those awaiting trial is usually met with. little objection. This may either be from custom or because people believe in the Constitutional principle that every accused person in presumed to be innocent until proven guilty in a court of law.
Allowing sureties for the accused to operate commercially seems to attract little negative attention. What has often been debated and has recently grabbed the attention of the public are the broad powers the bail bondsman and his agents have in recapturing defendants. Bounty hunters have received so much attention that British thrill seekers have offered to pay top dollar to experience their lifestyle. These men were willing to pay American bounty hunters in Washington to ride along with them on manhunts. {FN 50]. Fortunately, this plan was abandoned due to the bad publicity it caused. This story shortly followed the 1997 Phoenix incident where five men posing as bounty hunters broke into a home and executed the occupants in a robbery. Stories like these are gobbled up by the media to keep the Wild West depiction of bounty hunters alive and well.
What the media fails to show is the legitimate function the bail bonding industry serves in the criminal justice system. Crime in the United States has become an epidemic. Crime rates have been on the rise for years. Law enforcement agencies are forced to meet this rise in crime with limited resources. Law enforcement officers are seriously overburdened with work, as most police stations are understaffed. Housing inmates has become a problem as jails are becoming more and more overcrowded. As a result, the criminal justice system must rely on some commercial agencies. Bail bondsmen work to relieve some of the pressure on the system. They mostly relieve the financial burden the state has in housing arrestees until their trial date. When the defendant pays the bondsman to write a bond which secures his release, the bondsman assumes custody of the defendant. This relieves a huge strain on city and county jails. Also the defendants can return to their jobs instead of waiting for trial in a jail cell. Once a bond is written for the defendant, law enforcement officers need not worry about returning him to trial. The defendant is legally in the custody of the bondsman, who has a large financial interest in having him present for trial. If the defendant skips the trial date, a warrant is issued for his arrest. Law enforcement officers do not have the resources to chase down every outstanding warrant. The bondsman does have a financial incentive to find and return the defendant. The bondsman serves a benefit to the community, but he must have certain powers to effectively recapture the defendant. Most bondsmen and their agents are well equipped to handle the powers afforded them to recapture the skips. However, with any special powers comes the opportunity to abuse that power. In order to deal with the possibility of the abuse of their position, states must enact the proper regulations over bail bondsmen and their agents.
The proper regulation of bail bondsmen and their agents can be done by simple licensing and training requirements. The best way for states to curb the potential for the abuse of power is to review all applicants for bail bondsmen. Mandatory background checks will keep felons and ex-cons from stepping into a position with police powers. Having the right man for the job will greatly increase safety. Training is also essential for the protection of the bondsman, the defendant, and the general public. Each state should require training courses similar to law enforcement agents and require mandatory firearm training. An effective bail bonding and bail enforcement system can only exist if it is properly staffed. These basic requirements will greatly increase the overall safety and image of the bail bonding system.
The American system of bail and bail enforcement is unlike any other pretrial release system in the world. It serves an important function in the mechanics of the criminal justice system. Bail bondsmen and their agents help relieve the strain on overburdened law enforcement agents. Eliminating commercial bondsmen would be a mistake that would not only be felt by law enforcement but the general public as well. The best way to keep the system running smooth is for individual states to enforce special licensing requirements and proper training. At a minimal cost to the state, a great benefit will be retained.

– Joel W. Crim

Mr. Crim is a former prosecutor in Nashville and is currently an attorney with the firm of Shipman & Crim, PLC located at 332 White Bridge Pike, in Nashville, Tennessee. He is the lead criminal defense attorney in the firm’s criminal defense practice and focuses on DUI defense and all felony and misdemeanor charges.
[FN 1] Ryan M. Porcello, International Bounty Hunter Ride-Along: Should U.K. Thrill Seekers Be Permitted to Pay to Experience a Week in the Life of a U.S. Bounty Hunter?, 35 Vande J. Transnat’l L. 953, 959 (2002)
[FN 2] Holly J. Joiner, Private Police: Defending the Powers of
Professional Bail Bondsmen, 32 Ind. L. Rev. 1413, 1427 (1999)
[FN 3] John A. Chamberlin, Bounty Hunters: Can the Criminal Justice System Live Without Them?, 1988 U. Ill. L. Rev. 1175 (1998)
[FN 4] John A. Chamberlin, Bounty Hunters: Can the Criminal Justice System Live Without Them?, 1988 U. Ill. L. Rev. at 1176
[FN 5] Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731, 744 (1996)
[FN 6] Ryan M. Porcello, International Bounty Hunter Ride-Along: Should U.K. Thrill Seekers Be Permitted to Pay to Experience a Week in the Life of a U.S. Bounty Hunter?, 35 Vande J. Transnat’l L. at 958
[FN 7] Id. at 958
[FN 8] Id. at 958
[FN 9] Id. at 959
[FN 10] John A. Chamberlin, Bounty Hunters: Can the Criminal Justice System Live Without Them?, 1988 U. Ill. L. Rev. at 1176
[FN 11] Id. at 1181
[FN 12] Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. at 749
[FN 13] Id. at 746
[FN 14] Holly J. Joiner, Private Police: Defending the Powers of Professional Bail Bondsmen, 32 Ind. L. Rev. at 1424
[FN 15] Id. at 1426
[FN 16] John A. Chamberlin, Bounty Hunters: Can the Criminal Justice System Live Without Them?, 1988 U. Ill. L. Rev. at 1185
[FN 17] Nicolls v. Ingersoll, 7 Johns. 145 (N.Y. 1810)
[FN 18J Nicolls v. Ingersoll, 7 Johns. at 146
[FN 19] Id. at 148
[FN 20] Id. at 149
[FN 21] Id. at 150
[FN 22] Taylor v. Taintor, 83 u.s. 366, 371 (1872)
[FN 23] Interview with Donnie Clark, Bail Bondsman of Aaron Bonding Company, in Nashville, TN (Mar. 14, 2003) (Mr. Clark is a member of the Professional Bond and Surety Association of Tennessee, Inc.; Aaron Bonding
3rd
Company is located at 504 Ave. North, Nashville, TN 37201)
[FN 24] Tenn. Code Ann. § 40-11-318 (2001)
[FN 25] Tenn. Code Ann. § 40-11-316 (2001)
[FN 26] Matthew L. Kaufman, An Analysis of the Powers of Bail Bondsmen and Possible Routes to Reform, 15 N.Y.L Sch. J. Hum. Rts. 287, 294 (1999)
[FN 27] Andrew DeForest Patrick, Running From the Law: Should Bounty Hunters Be Considered State Actors and Thus Subject to Constitutional Restraints?, 52 Vande L. Rev. 171, 193 (1999)
[FN 28] Matthew L. Kaufman, An Analysis of the Powers of Bail Bondsmen and Possible Routes to Reform, 15 N.Y.L Sch. J. Hum. Rts. at 295
[FN 29] Andrew DeForest Patrick, Running From the Law: Should Bounty Hunters Be Considered State Actors and Thus Subject to Constitutional Restraints?, 52 Vande L. Rev. at 194
[FN 30] Holly J. Joiner, Private Police: Defending the Powers of Professional Bail Bondsmen, 32 Ind. L. Rev. at 1432
[FN 31] Miss. Code Ann. § 83-39-3 (2) (a) (1999)
[FN 32] Miss. Code Ann. § 83-39-3 (2) (a)
[FN 33J Miss. Code Ann. [FN 34] Tenn. Code Ann. [FN 35] Tenn. Code Ann. [FN 36] Tenn. Code Ann. [FN 37] Tenn. Code Ann. [FN 38] Tenn. Code Ann. [FN 39J Tenn. Code Ann. [FN 40J Tenn. Code Ann. [FN 41J Tenn. Code Ann.
§ 83-39-3(7) § 40-11-318 (b) (2001) § 40-11-133 (a) (2001) § 40-11-133(b) § 40-11-318 (a) (1) § 40-11-318(c) § 40-11-318(c) (1)-(4) § 40-11-318 (d) § 40-11-318(e)
[FN 42J Holly J. Joiner, Private Police: Defending the Powers of Professional Bail Bondsmen, 32 Ind. L. Rev. at 1427
[FN 43] John A. Chamberlin, Bounty Hunters: Can the Criminal Justice System Live Without Them?, 1988 U. Ill. L. Rev. at 1193
[FN 44] Ky. Rev. [FN 45] Ky. Rev. [FN 46] Stephens
580 [FN 47] Stephens at
Stat. Ann. § 431.510 (2003) Stat. Ann. § 431.510 (1) (a) (b)
v. Bonding Association of Kentucky, 538 S.W.2d (1976)
v. Bonding Association of Kentucky, 538 S.W.2d 581
[FN 48] Id. at 582
[FN 49] Id. at 583
[FN 50] Ryan M. Porcello, International Bounty Hunter Ride-Along: Should U.K. Thrill Seekers Be Permitted to Pay to Experience a Week in the Life of a u.S. Bounty Hunter?, 35 Vande J. Transnat’l L. at 981