“The Constitution doesn’t apply to them. That’s what most people don’t understand,” said Howard Finkelstein, the Broward public defender who has tangled with the bail bond industry over a number of legal issues (including bail bondsmen’s years-long campaign to get rid of the pretrial intervention programs that cut into their profit margins).
He explained that bail bondsmen — a sexist misnomer, given that 40 percent are women — operate under a peculiar theory of contract law that suggests a defendant has agreed to surrender his rights to the bail bond agent. Somehow that status gives bail bondsmen and their agents extraordinary latitude when they go out to retrieve some AWOL client. “The police could never just break down my door or come through my window without a warrant. Or storm into a gym,” Finkelstein said.
He added that the bail bond agents, along with their extra-legal powers, have a reputation for employing fellows whose résumés would not get them past a police agency’s employment office. “Many of these people, on their best days, are sketchy.”
In 2009, the New York University Review of Law and Social Change published a legal analysis of bail bond agents “who have been a part of the American criminal justice landscape since the 18th century.”
Rebecca B. Fisher wrote, “They are empowered to engage in various levels of intrusion upon privacy which the law forbids the police and private citizens from making. Since the country’s founding, courts have upheld bounty hunters’ right to pursue bail skippers across state lines, to apprehend them — even by breaking and entering the individual’s home in the middle of the night, and to transport them back to court in other states without extradition proceedings.”
Two 19th century decisions by the U.S. Supreme Court seem to have exempted bail bond agents from legal restraints faced by law enforcement. An 1872 decision held that defendants surrender their civil rights when a bondsman bails them out of jail. In 1888, after hearing a case that came out of the notorious Hatfields and McCoys feud in the Appalachian Mountains, the court decided Kentucky courts could try members of the Hatfield clan on murder charges though the defendants had been kidnapped in West Virginia by bounty hunters and hauled across the state line.
Among the world’s judicial systems, only the U.S. and the Philippines employ a legal construct in which a defendant, presumed innocent, must pay a for-profit enterprise a nonrefundable fee to get out of jail while he’s waiting trial. Four states — Illinois, Kentucky, Oregon and Wisconsin — have abolished bail bondsmen. Not, of course, Florida. “This is just a weird throwback to another era,” Finkelstein said.
Folks in South Florida’s poorer precincts are plenty familiar with the rough ways of bail bondsmen, unfettered by the civil rights niceties most of us take for granted. But on Tuesday, they imported their cowboy tactics to South Beach, to a gym with a decor described in Miami.com as a “Moroccan-Tunisian dreamscape against a backdrop of thumping club music and dim lights. There are dressing room lights, cracked mirrors, black tile mosaics and huge walnut benches. Ten roomy treatment rooms are clean and rather masculine, but not cold.”
Members in such a place can’t easily comprehend this strange legal construct that allows a squad of private gun thugs to storm their private environs, roust them naked from their showers and hold them in lockdown. “We can’t stand for this,” Linnen insisted. But an anachronism of American justice insists we must.