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.