Op-Ed: Bail or Jail? Montana's Wild West

Montana's Wild West is alive and well as a rogue subset of bounty hunters commit crimes and abuses against defendants on bail, their families and the public. State law gives bondsmen unrestrained arrest powers leading some to employ dangerous tactics that threaten public safety and infringe on defendants' rights.

There is a clear need for Montana to create sideboards, rules, and arrest reporting standards to ensure transparency and establish minimal qualifications for individuals operating as fugitive recovery agents (bounty hunters) in our State.

The growing abuses and criminal charges against bondsmen culminated in both public outrage and calls for reform by our agency following a shooting last year in Butte. In this case, a bondsman, aided by a convicted felon, allegedly broke into a home unannounced seeking to arrest a defendant out on bond. Following an altercation, the homeowner – a third party – was fatally shot. The bondsman, as well as the man accompanying, were charged with deliberate homicide and aggravated burglary.

Although there are many professional bondsmen and recovery agents acting within the law, there is increasing concern of recovery agents and bondsmen committing, sometimes very serious crimes.

A bail bond, or surety bond, is a form of insurance. Bondsmen must be licensed as surety insurance producers to write bail bonds. As the agency charged with regulating insurance in Montana, we have the duty and authority to approve and revoke licenses, levy penalties for misconduct, and adopt rules. Following the shooting in Butte, we revoked the bondsman's license to ensure he could no longer legally write or enforce bonds.

The laws regulating bail bonds are even more complex when considering the difference between a bondsman and a fugitive recovery agent. While one is often synonymous with the other, the law does not mandate licensure for recovery agents because they are not offering an insurance product – their job is only to arrest defendants. For example, the shooting in Butte allegedly involved a convicted felon who was aiding the bondsman in the fugitive recovery operation. The felon was not a licensed surety insurance producer because he was only acting as a recovery agent.

This loophole is void of any authority for any Montana agency to regulate the actions of unlicensed fugitive recovery agents. This creates, in some cases, unclear authority over bondsmen recovering fugitives.

Bondsmen arguably have unilateral authority to revoke bail at any time and for any reason. As a result, a defendant legally out on bond can be routinely arrested and imprisoned without a court order, at the whim of the bondsmen. In other words, the bondsman doesn't need any reason other than discomfort to recover a person out on bond. This unrestricted authority is the catalyst of many cases of abuse and crimes committed by bondsmen. Our agency is investigating multiple instances of bondsmen offering payment or reduced bail costs to defendants in exchange for performing tasks, such as assisting in fugitive recovery operations. In some cases, bondsmen have gratuitously revoked a defendant's bail, only to again bail them out of jail to implement additional fees on the same defendant.

The vast majority of bail bondsmen and recovery agents in our State follow the law, respect defendants' rights, and support regulations to corral unscrupulous actors who's actions tarnish the industry's reputation. I've always said, "bad actors are bad for business." Nobody wants bad actors in their industry. However, abuses, crimes, and violence perpetrated by bad actors in the bail bonds industry will not stop until the Legislature passes common-sense laws giving some sideboards and oversight on abuses being perpetrated by a handful of bad actors.

In the 2023 Legislative Session, we will introduce a bill to reform fugitive recovery. We will be seeking two changes to statute that we believe will help solve many of the problems in fugitive recovery in our great State:

Require all recovery agents to be licensed surety insurance producers. Through licensure, our agency can enforce minimal qualifications, training standards, and background checks. Bondsmen and recovery agents abusing their authority will have their licenses revoked and lose their authority to write bonds or arrest defendants. Mandatory licensing also ensures defendants cannot be paid or coerced into assisting in fugitive recovery operations.

Implement transparency reporting requirements. Before arresting a defendant, bondsmen must notify local law enforcement and provide licensure information along with the defendant's location. Bondsmen are also required to report all arrests to our agency as a condition of licensure. Reporting will dissuade bad actors from engaging in abusive behaviors without unduly restricting bondsmen from protecting their interests.

Fugitive recovery agents have unique powers and authorities usually only granted to highly trained law enforcement professionals. Under the current law, this industry has little oversight, qualifications, or basic training standards required to operate in Montana communities with broad arrest powers. The abuses from this small set of bad actors in this industry are a clear threat to the rights of Montanans. In the next legislative session, the Legislature should modernize our State's laws to protect the rights of defendants and the public from violence perpetrated by bad actors in the bail bond industry.

Troy Downing is the Commissioner of Securities and Insurance, Montana State Auditor. Commissioner Downing is a two-tour combat veteran, businessman, and entrepreneur.