Mercenaries and Bounty Hunters

Today’s post is inspired by David, who wondered about mercenary characters like Deadpool and Deathstroke, and a comment by John, who wanted to know about bounty hunters (in the “wanted poster” sense).  We touched on some of the legal issues surrounding bounty hunters, particularly the bail bondsman type, in the comments to our post on Superheroes and Citizen’s Arrest, but there are some more topics to discuss.  We’ll address mercenaries first, then bounty hunters.

I. Mercenaries

The term mercenary doesn’t really have a particular legal meaning outside the international law context (i.e. “a professional soldier hired by someone other than his or her own government to fight in a foreign country,” Black’s Law Dictionary (9th ed. 2009)).  Mercenary is also used to describe military security contractors like Blackwater/Xe.  But in comics the term is usually used to describe a “gun for hire” or private security typically employed by private individuals or companies rather than governments.  Frequently comic book mercenaries are hired to steal things or kill people, which leads us to two criminal law concepts: solicitation and conspiracy.

A. Solicitation

Solicitation is one of the inchoate offenses, and at common law consisted of soliciting, requesting, commanding, or importuning another person to commit a felony or serious misdemeanor.  These days solicitation is typically defined by a statute such as 18 USC 373(a):

Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned …

Something to notice here: the solicitor must intend that the other person actually commit the felony, so it’s not solicitation if, for example, an undercover police officer ‘solicits’ the commission of a crime in a sting operation.  Related to the intent requirement, the federal statute (like some state statutes) provides a defense of abandonment in 373(b):

It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited.

So what happens if the mercenary agrees to take the job?  Then the solicitor and the mercenary are guilty of conspiracy (some jurisdictions also require that the solicitor or mercenary take an affirmative step towards completing the crime; more on conspiracy later).

And if the mercenary finishes the job, committing the crime he or she was hired to do?  Then a curious thing happens: the solicitor and mercenary both become guilty of the crime (e.g. theft, murder) but the solicitation charge goes away.  In legal terms, the crime of solicitation merges with the underlying offense.  The solicitor can be charged as a principal (i.e. as though he or she committed the crime himself or herself) because he or she acted as an accessory to the crime.  See, e.g., 18 USC 2.

Fun Fact: In many jurisdictions, contract killings are automatically first degree or capital murder for the solicitor and the killer. See, e.g, N.Y. Penal Law § 125.27(1)(a)(vi).

B. Conspiracy

Like solicitation, conspiracy is generally defined by statute these days.  The general federal conspiracy statute is 18 USC 371:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned …

However, unlike solicitation and attempt, conspiracy does not merge with the underlying offense if the underlying offense is completed.  Instead, it’s a separate crime.  The usual rationale for this is that criminal conspiracies are especially dangerous because two or more people can do far more damage than one person acting alone and because people are more likely to go through with a crime if they are in agreement with others.

Like solicitation, some jurisdictions provide for a defense of abandonment or withdrawal in conspiracy cases, but it usually requires more than just ceasing one’s involvement in the conspiracy.  The defendant must also show that he or she tried to stop the commission of the crime, and that can be difficult to prove.

The practical upshot of all of this is that most comic book mercenaries are criminals, as are the folks that hire them.  Although we’ve seen that self-defense, defense of others, and citizen’s arrest are all useful legal tools for superheroes, those looking to stay on the right side of the law should probably look for work as bodyguards rather than mercenaries.

II. Bounty Hunters

First, some nomenclature: Strictly speaking, most bounty hunters are actually seeking a reward rather than a bounty.  A bounty may be claimed by multiple people performing the same service, while a reward may only be claimed by one person performing a unique service.  For example, a bounty may be offered for the destruction of dangerous animals (e.g. coyotes), whereas a reward may be offered for the arrest and return of a particular fugitive.

States generally have the power to post rewards as part of their general police power.  However, political subdivisions of states usually do not have general police powers, and so cannot post rewards without statutory authorization.  See, e.g, Brite v. Board, 21 Cal.App.2d 233 (Cal. Ct. App. 1937).  Courts have generally held that when statutes authorize rewards, the language of the reward has to hew pretty closely to the language of the statute.  See, e.g., Smith v. Vernon County, 188 Mo. 501 (1905).  Many statutes still have reward laws on the books.  See, e.g., Mo. Rev. Stat. 544.150, 145.  And those statutes do get a work out, even today.

Note, though, that the reward statutes generally only allow rewards for the capture or arrest of fugitives or felons, not their killing or the production of their bodies.  So “wanted: dead or alive” won’t work these days.  Frankly, I doubt it would work even with statutory authorization, since it amounts to a reward for an extrajudicial killing that couldn’t possibly survive modern due process analysis.

Private individuals and organizations can also offer rewards so long as the reward doesn’t request or require anything illegal (that would be solicitation, as discussed above).  In that case the reward is simply a unilateral contract (i.e. a contract that is accepted by performing the requested service).

Most states require that someone seeking a reward knew about the reward before they did whatever it is the reward requires.  See, e.g., Smith.  So going around arresting fugitives in hopes that a reward has been or will be posted is a good way not to get a reward.  Professional bounty hunters should wait for a reward to be posted first, then go get the bad guy.

As a final note, most modern “bounty hunters” are actually bail bondsman, i.e. people whose line of business is posting bail for criminal defendants and then rounding them up if they fail to appear in court when required. There isn’t really a public reward posted in these cases. Rather, a defendant contacts a bail bondsman when arrested, and the bondsman agrees to post bail in exchange for a commission, usually 10-15% of the bail amount. If the defendant fails to appear, the bond is forfeit, so the bondsman has an incentive to make sure that he does. But there isn’t any sort of general bounty or reward posted which would incentivize other persons to go after the defendant. Rewards are usually only posted for the most dangerous and notorious criminals. Bail bondsmen deal with mostly lower-end offenses and are thus far more common and far less interesting, story-wise.

III. Conclusion

Under the right circumstances, bounty hunting is a legally sanctioned way for a superhero to make money while fighting crime.  Mercenary work, by contrast, is usually more legally questionable, at least in the comics.

17 responses to “Mercenaries and Bounty Hunters

  1. I apologize for breaking genre. But I am fascinated to hear your opinion of pulp detective character “Nick Velvet” a thief-for-hire created by Edward D Hoch and appearing (only, as far as I know) in the magazine “Ellery Queen”.

    Nick Velvet charged a flat rate of $20,000 (later, adjusted for inflation) to steal only items of absolutely no value. Ticket stubs from a cancelled Broadway show. The rings, (many iron and one brass) from a merry-go-round. A particularly large spider web.

    Often, accomplishing the mission for which he was contracted did involve breaking and entering. But sometimes (as in the instance of the spiderweb) not even so much as trespassing. Very often, however, the lack of such an expected valueless item was necessary to a rich evil-doer in the course of perpetrating a fraud or other crime. Velvet, of course, would thwart the crime while completing the theft and pocketing his fee.

    So, leaving aside the instances of unlawful entry, is advertising his unusual service “soliciting”?

    • The issue of the value of the item is a bit of a red herring. The value might affect the degree of the theft (e.g. petty theft versus grand theft; misdemeanor versus felony), but the theft of a worthless item is still theft. See, e.g, Mo. Rev. Stat. 570.030(1) and (8).

      So the real issue here is what crime Nick is committing by offering his services, if any. This is a tricky one, and I may have to research this one a bit more. Normally solicitation flows in the other direction (e.g. someone offering to pay Nick to steal something for them). The offer could be described as “attempting a conspiracy,” but the courts have traditionally frowned on so-called “double inchoate offenses.” However, at least one state court has recognized attempted conspiracy. People v. DiDominick, 406 N.Y.S.2d 420 (N.Y. Sup. Ct. 1978). In the DiDominick case, the defendant (himself a policeman) offered to be hired to murder two people, but the person he offered his services to was actually an undercover police officer. The court ruled that DiDominick had attempted to form a conspiracy. Subsequent cases have declined to take up the theory, however, and it seems to have basically died with the DiDominick case.

  2. Note, though, that the reward statutes generally only allow rewards for the capture or arrest of fugitives or felons, not their killing or the production of their bodies. So “wanted: dead or alive” won’t work these days. Frankly, I doubt it would work even with statutory authorization, since it amounts to a reward for an extrajudicial killing that couldn’t possibly survive modern due process analysis.

    Just to poke at the technicalities, what if someone’s already been tried, convicted and condemned to execution. Let’s go even farther and say that they spent the next seventeen years in prison while their lawyer exercised every possible avenue of appeal, every one of which failed, and this person is definitely going to be executed by the state. And suppose that they somehow break out of prison and they’re on the run. Would there be an objection to a bounty hunter type bringing them in dead in that case, since they’ve clearly had their due process?

    I’m expecting the answer is yes 🙂 but I’d like to hear what the nuts-and-bolts argument would be. Thanks!


    • The simple answer is that nothing in the law would make the killing not murder. In the case of execution, there is typically specific statutory authorization for the carrying out of the death sentence, including the naming of an executioner. Imagine someone on the verge of being executed: strapped to the gurney, the whole bit. It would be murder for someone other than the executioner to jump in and push the button.

      Beyond that, though, there are actually at least four due process issues remaining. First, it’s unlikely that the bounty hunter would use one of the sanctioned methods of execution. Second, there’s the executive pardon power; the scheduled execution gives the governor or President an opportunity to pardon the condemned. Third, the courts or the legislature might end the death penalty in the interim, but a bounty hunter might not be responsive to that. Fourth and similarly, the courts or the legislature might create a new opportunity for appeal (e.g. the legislature might create a new level of review in capital cases or the courts might rule the statute under which the condemned was convicted unconstitutional, void for vagueness, etc).

      • What if the criminal escapes after the execution has been scheduled, and the killing happen after that date?

  3. Makes sense, and thanks!

    And to pouncer, without knowing any more about the law than I’ve read here, Velvet sounds exactly like the solicitation the law wants to stop. About the only difference is that the courts might be lenient on him (the first couple of times) because the suggested crimes are relatively victimless. Remember that prostitutes are arrested for solicitation, after all, which seems rather similar.

    A more extreme case would have been Raffles Holmes (though published over a century ago–since I noticed Marcus Rowland posting here, I need to thank him for including the original Raffles stories in “Forgotten Futures,” leading me to track down the Bangs stories), who occasionally stole things, only to “miraculously” return them to the owner for the inevitable reward. Presumably, a theft is still a theft, no matter how brief or what the value is.

  4. Hm. On the execution matter… It would obviously require some extra statutory work to legalize, but would it be grossly out of line with the jurisprudence and ethics of our legal system to enable such escaped death row condemnees to be executed by “dead or alive” style bounty hunters?

    I’m picturing the bounty hunter having his sniper rifle ready, having confirmation of his target, being in place, and calling up the bounty office. He gives his sworn testimony of who he’s found and any relevant and practical evidence over the phone. After receiving confirmation and appointment from the official department, he says – to make it official, mind you – “By the authority vested in me by this State, I enact your sentence, Emmet Vil Villain: Death.” And then he pulls the trigger.

    So basically, they call in confirmation, make sure no pardon or leniency or anything’s been passed, and get officially appointed as executioner. Then carry it out.

    Obviously, “or alive” would involve less immediate paperwork, so might be more practical if you actually have to subdue the guy rather than sneak-kill him. But would the above violate any ethical or other ideals of our justice system if it were passed into statutory law?

    • Yes. First, the method of execution would likely be considered unconstitutional (even in states that allow execution by firing squad the condemned still sees it coming, and it’s questionable whether firing squad would be allowed at all these days). Second, the sworn testimony and so forth probably wouldn’t meet the constitutional standards of due process (e.g., no representation of the condemned, no opportunity to come quietly, etc).

  5. I was assuming he’d already been convicted, and that the execution was scheduled for “on or after [xyz date] at [abc time].” So due process, in theory, has been followed already.

    The one ethical problem I can see is the chance of mistaken identity.

    I’m not a lawyer, though, so, assuming this is “you’ve escaped from death row, so now we execute you on the street,” rather than “we want him dead or alive, even though he’s not been convicted yet,” can you explain how it violates the Constitutional rights of the already-convicted?

    Or is the risk of mistaken identity sufficient, here?

    • It seems to be all moot to me in the sense that they do shoot people for fleeing justice. I mean, if you were to break out of prison then they can legally shoot you as you try to escape, right? It doesn’t matter if you aren’t armed, right? Because otherwise the movies have it all wrong. The idea that the police have to physically catch up with you and apprehend you seems counter intuitive. I mean, what if there’s a massive breakout? What if they say “Stop our we’ll shoot” and you keep running because you know that your constitutional right to due process will prevent them from shooting any unarmed man. But, again, in the movies the escapees either stop running or the prison guards open fire.

      Even fleeing felons will have the police say “Stop or we’ll shoot”. Again, in movies. On TV the police usually run after the suspect, corner them and then put cuffs on them. I always assumed that was just to make the shows less violent though while at the same time waking the viewers up and giving them a bit of action. (Forensic scenes, interogation scenes and court scenes can only maintain the viewers attention for so long.) If the police are not allowed to shoot unarmed suspects as they flee then I wonder if a rookie cop who shot a fleeing suspect could use the defense that he was only doing something he saw Clint Eastwood do in a movie and he figured it was what cops did.

      • “I mean, if you were to break out of prison then they can legally shoot you as you try to escape, right?”

        With regard to suspects (as opposed to fleeing convicts), the Supreme Court held in Tennessee v. Garner, 471 U.S. 1 (1985):

        Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

        With regard to prisoners, the standard becomes more lax, since the 8th Amendment takes over post-conviction. Whitley v. Albers, 475 U.S. 312, 318 (1986). Courts have held that it is constitutionally permissible to use deadly force where reasonably necessary to prevent escape, at least by convicted felons. Some courts have suggested that a warning shot or shooting to disable, where feasible, is required. See, e.g., Newby v. Serviss, 590 F.Supp. 591 (W.D.Mich. 1984). Others have held that it’s sufficient that the prisoner was “on notice” that deadly force would be used on escapees. See, e.g., Kinney v. Indiana Youth Center, 950 F.2d 462 (7th Cir. 1991).

        However, I don’t think this rule would extend to executing an escaped death row inmate. The rule is justified by the need to prevent escape and tempered by the requirement that deadly force be reasonably necessary. I don’t think those justifications are present in this hypothetical. If they were (e.g. if the escapee were actively fleeing law enforcement and deadly force was reasonably necessary), then it would be a matter of shooting a fleeing prisoner, not executing a condemned one.

      • Actually I’m fairly sure that in the U.S the police cannot threaten to shoot a fleeing suspect. Once they are incarcerated and they are attempting to escape things might change but in general police can’t do that. Additionally movies get an amazing amount of criminal justice completely wrong.

      • “Actually I’m fairly sure that in the U.S the police cannot threaten to shoot a fleeing suspect.”

        No, they most certainly can both threaten to shoot and in fact shoot fleeing suspects under the conditions described in Tennessee v. Garner, cited above (in short: suspect must pose immediate risk of serious physical harm, deadly force must be necessary to prevent escape, and warning must be given where feasible). The courts have subsequently reaffirmed that holding through the present day. See, e.g., Penley v. Eslinger, 605 F.3d 843 (11th Cir. 2010); Scott v. Harris, 550 U.S. 372 (2007); Brosseau v. Haugen, 543 U.S. 194 (2004).

    • As I explained above, the method of execution wouldn’t meet constitutional standards, and due process would likely require more than a telephone call confirmation of the go ahead to execute.

  6. I’m fairly sure that police academy would teach them what they can and cannot do in that regard. So, no, I doubt “I saw Clint Eastwood do it on TV” would suffice as a defense for a rookie cop. He’s still a trained cop, or he wouldn’t be allowed out with the gun in the first place.

  7. Okay, how’s this? M tells James Bond that John Smith is an agent of SPECTRE and he is literally licensed to kill agents of SPECTRE. John Smith boards a plane to New York and James follows him and kills him in the U.S. James has clearly violated American law.

    Conversely, if Ethan Hunt brings an IMF team to England and one of his team kills somebody in order to carry out the mission, it would then be a question of the British authorities capturing the killer at which point he would be disavowed (the CIA would deny all knowledge of the operative).

    So, although this is a matter of mixing two different fictional franchises, it would seem that James would be out of luck and wouldn’t have any defense whatsoever, not unless John Smith were to turn around and attack him and he had to defend himself (which often happened in the movies and helped to make James Bond more sympathetic even though he was ultimately an assassin).

  8. Pingback: Rewards, Unilateral Contracts, and Bat Family # 19 | Law and the Multiverse

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