Bounty Hunters at the Gates: Wisconsin’s Flirtation with the Bail Bonds System

Surely you’ve noticed when flipping through TV channels the reality show Dog the Bounty Hunter on A&E. The show centers upon Duane “Dog” Chapman—a bearded, tattooed, and bemulleted bounty hunter—as he and his family of fellow bail enforcement agents apprehend fugitives in sunny Hawaii. Chapman has gotten a fair amount of publicity outside of his show, including a Paula Deen-esque racial slur controversy (unlike Deen, he had no merchandising empire to lose) that resulted in the temporary cancellation of his show, and for being arrested and briefly imprisoned in Mexico for illegally capturing celebrity fugitive Andrew Luster.

Like most reality shows, Dog the Bounty Hunter follows a set format. It begins with a briefing, where we are introduced to the fugitive’s criminal history. Next comes an investigation, which generally involves phone calls and visits to former neighbors and family members. Each episode’s climax is generally the discovery and capture of the bail jumper. The show then shifts from action to tear-jerking drama, with Dog and family providing homespun advice to the re-apprehended fugitive about taking responsibility for life, finding a job, and quitting drugs. “Smoke brah?” counselor-mode Dog asks, slipping a cigarette into the handcuffed man’s mouth and lighting it for him. Typically, the fugitive’s family is present to provide tearful commentary on exactly where things went wrong. Dog the Bounty Hunter is sleazy, shamelessly tacky, and unquestionably entertaining.

Fast forward to Wisconsin, the summer of 2013.

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Culpa in Causa and the Zimmerman Acquittal

Culpa in causa. The Latin phrases I learned many moons ago as a law student in the Netherlands rarely enter my consciousness, but these three words kept flashing through my mind while reading about the Zimmerman trial. The term appears to have been coined in the 1930s by Willem Pompe, an influential criminal law professor in Utrecht at the time, who may well have thought that Latin sounds fancier than Dutch. Literally, culpa in causa means “fault in the cause.” The notion is that someone who voluntarily—and wrongfully—places herself in a situation in which it is reasonably foreseeable that she may commit a crime cannot successfully invoke defenses to criminal liability. Put differently, the intent or fault that is implicated in creating a risky situation extends to the subsequent crime. A relatively straightforward example of how the doctrine operates is in self-intoxication cases: Under Dutch law, a defendant who commits a crime under the influence of voluntarily consumed drugs can be convicted for crimes that require specific intent, even if the drugs rendered her incapable of understanding her actions.

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Lessons from Zimmerman?

Predictably, the Zimmerman verdict has triggered headlines, sharp controversy, and protests. This was bound to happen regardless of whether he was acquitted or convicted. I leave it for others to tell us about the grand lessons this trial teaches about race, violence, and firearms. I will note, however, that the trial was not about any of these larger themes, and the jury’s verdict spoke only about Zimmerman’s conduct when he shot Trayvon Martin to death. It was not, in short, a show trial of any sort.

The trial’s meaning for me reaches backward and forward in time. It reaches backward to a moment in my professional life when I was on the receiving end of the same verdict as a prosecutor–an acquittal in a highly publicized murder case in which the defendant claimed self-defense. Looking forward its lessons will undoubtedly permeate my One-L Criminal Law class in fall (students are hereby placed on notice). The lesson is not one that dwells on the sensational publicity the Zimmerman trial garnered or the emotional devastation suffered by the Martin family, but rather on its banality as an exemplar of a criminal trial–how it illustrates work-a-day principles relating to the definition of crimes, the elements of defenses, and, most important, the burdens of proof.

Zimmerman’s defense lawyer was quoted as saying “We proved George Zimmerman was not guilty.” Assuming a correct quote, the statement is nonsense on about every level. The defense proved no such thing and was under no duty to do so.

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