The Regulation and Control of Bail Recovery Agents

• Author: Brian R. Johnson,Ruth S. Stevens
• Date: 01 June 2013
• DOI: 10.1177/0734016812473823
• Published date: 01 June 2013
• Subject Matter: Articles

Article
Criminal Justice Review
38(2) 190-206
The Regulation and Control
ª 2013 Georgia State University
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DOI: 10.1177/0734016812473823
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An Exploratory Study
Brian R. Johnson1 and Ruth S. Stevens1
Abstract
This article explores the current status of the licensing and regulation of bail recovery agents in the
United States. By reviewing state legislative and administrative codes in all the 50 states, this study
found that 24 states control bail recovery agents through licensure or the imposition of other
occupational regulations. These state controls include age, criminal history, and pretraining and
educational requirements; some states also require continuing education and training for licensure
and/or regulation. In contrast, 18 states have no licensing or other occupational requirements for
bail recovery agents. These findings raise questions about the actual utility and function of these laws,
suggesting that states place minimal controls on this sector of the bail industry, oftentimes, relying
upon voluntary self-regulation and governance of recovery agents. As such, the civil liberties of the
public and criminal defendants may be at risk from this underregulated profession.
Keywords
courts/law, legal issues, courts/law, other, evaluation
Introduction
Bounty hunters, as they are known colloquially, work closely with members of the private bail
industry and enjoy broad powers to detain and arrest absconded criminal defendants. They are con-
sidered the enforcement arm of the surety bail system, where their role is simple: They apprehend
defendants who have failed to appear in court or have violated the conditions of their surety bond
(Johnson & Warchol, 2003). In performing these activities, they have broad powers of apprehension,
surpassing those powers that are granted to governmental officials when conducting arrests,
searches, and seizures because of their status as a private actor. When combined with the fact that
bounty hunters have operated in many states with little or no formal regulation, the potential for civil
rights abuses exist.
1 Grand Valley State University—School of Criminal Justice, Grand Rapids, MI, USA
Corresponding Author:
Brian R. Johnson, Grand Valley State University—School of Criminal Justice, 279C DeVos Center 401 W. Fulton St, Grand
Rapids, MI 49504, USA.
Email: johnsonb@gvsu.edu

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Johnson and Stevens
191
Currently, some states are engaged in a variety of legislative activities related to the licensing and
regulation of bounty hunters. In July 2011, for example, legislators in Pennsylvania introduced a bill
that would, for the first time, establish standards for bounty hunters operating in that state by requir-
ing that bounty hunters be licensed (Pa. H. B. 1774, 2011). The Pennsylvania action reflects one
approach to controlling bounty hunters: setting minimum entry-level qualifications with oversight
by an administrative agency. Meanwhile, in 2010, the state of New Hampshire moved from minimal
training and registration requirements to more strict licensing requirements for bail enforcement
agents that now include minimum years of prior experience in law enforcement, private investiga-
tion, or other related fields (N.H. HB 651)—another effort to control the actions of bounty hunters.
In contrast, other states are eliminating or vetoing bail recovery legislation. For example, Cali-
fornia, which had first enacted legislation requiring the certification and training of bounty hunters
in 1999, allowed the provisions to lapse in 2010 through the operation of a sunset clause (Cal.
Assembly Bill. 2238). As a result, there are currently no established standards for bounty hunters
in that state; age, criminal background limitations, and training requirements for bounty hunters
in California are no longer in effect. Meanwhile, in Wisconsin, a state where the surety bail system
has been banned since 1979, the legislature included a provision in its 2011 budget bill that would
have reintroduced the commercial bail industry (Wis. Act 32, 2011) and allowed bounty hunters to
operate in that state. However, Wisconsin Governor Scott Walker vetoed this section of the budget
bill, but nevertheless indicated support for the measure and called for its reintroduction as a separate
piece legislation to give the state time to properly implement it (Marley & Stein, 2011).
These examples from Pennsylvania, New Hampshire, California, and Wisconsin illustrate the
need for an understanding of how states are currently approaching the licensing and regulation of
bounty hunters, an area that has been largely ignored in the academic literature. This study,
therefore, provides a current and comprehensive review of existing laws in all the 50 states related
to the licensing and regulation of bounty hunters, who are also called, for the purposes of this study,
bail recovery agents.
The Role of Bail Recovery Agents in the Criminal Justice System
The use of surety bonds as a pretrial release mechanism is a fundamental component of the U.S.
criminal justice system. It is one of the several forms of pretrial release that the courts can use to
ensure that defendants will appear for their court appointments that include nonfinancial forms of
release, such as release on recognizance, supervised release, and unsecured bond as well as other
financial based mechanisms, such as deposit bonds (e.g., a 10% cash bond), full cash bonds,
and property-related forms of release. In those states where the surety bond system exists, it
often surpasses all other type of pretrial release, including release on recognizance (Cohen &
Reaves, 2007).
Unlike other forms of release, however, surety bonds have some unique elements. Under a surety
bond release, the defendant (or principal) is ‘‘bailed out’’ of court custody by a person (the indem-
nitor) who then contracts with a private bail bond agent or bondsman (the surety) who financially
pledges or promises that the principal will meet the conditions of the bond. In exchange, the indem-
nitor pays a nonrefundable fee, usually 10% of the value of the bond, to the surety (but is neverthe-
less fully responsible for the full value of the bond if the accused should violate the conditions of the
bond). Under this system, for example, if the bond is $20,000, the indemnitor must pay $2,000 (10%
of the value of the bond) for the release of the principal to the bondsman, while agreeing to pay the
additional $18,000 if the principal violates the condition/conditions of the bond.
As part of the bail agreement, the principal also signs a contract with the surety which stipulates
the principal must appear for all scheduled court appointments and meet other conditions set by the
court (and even the bail bond company) that can include travel restrictions, no-contact orders,

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Criminal Justice Review 38(2)
mandatory check-in procedures, and even electronic monitoring. A principal who fails to uphold the
conditions of the bond set by the court becomes a fugitive, and the full value of the bond posted by
the surety (not just the 10% initial deposit) is forfeited to the court. The surety (or bail bond
company) is then responsible for paying the full value of the bond to the court if the principal does
not voluntarily surrender, or is not returned to the custody of the court by the bail bond agency within
a certain time period. Moreover, even if the principal has fully complied with all conditions set by
the court and by the private bail bond contract, if the indemnitor no longer wants to accept financial
responsibility for the principal, the bail agreement can be revoked and the principal can then be
required to surrender himself to the custody of a bail agent (or company) or the courts. Courts in
some states recognize similar unilateral powers of surrender, without cause, on the part of the surety
as well (Hirsh, 2007). If the bail agreement is revoked through the actions of either the indemnitor or
the bail agent and principal does not surrender to the court, the principal can be deemed a fugitive
from the courts and/or the bail bond company. In these instances, the bail system relies upon bail
recovery agents to capture the fugitive. Inasmuch, the bail agent and bail recovery agent perform
interdependent and symbiotic roles: one is the writer of bonds (the agent), while the other is the
enforcer of the bail bond agreement (the recovery agent), preventing financial losses that would
be incurred if defendants were to disappear or ‘‘skip’’ and their bonds were to be later forfeited
to the court. Without their services, the recovery of fugitives would remain the sole responsibility
of law enforcement officials. As a result, Burns, Kincade, and Leone (2005) suggest that bail
recovery agents ‘‘relieve pressures’’ (p. 134) on the public sector and serve a needed function in the
criminal justice system.
Bail recovery agents’ powers are granted to them contractually through the bail agreement, a pri-
vate agreement; they do not have to abide by the constitutional limits and procedural safeguards that
govern the actions of public sector government agents. Unlike public law enforcement officials, bail
recovery agents are considered ‘‘private,’’ not ‘‘state’’ actors and are therefore they are not bound by
the U.S. constitutional protections against unreasonable search and seizures under the Fourth
Amendment, the privilege against self-incrimination under the Fifth Amendment, and the right to
counsel...