In Texas and California, new laws call on the people of each state to watch and report their neighbors — and reap a reward for doing so. Unusual, yes — although it’s a concept that dates back to the earliest days of the American republic.
They all set out bounties, with the state entrusting its citizens to enforce the law and promising remuneration to those who do.
The Texas law, passed in 2021, bans abortions if a doctor detects a fetal heartbeat, usually at about six weeks — but it’s not up to the state to enforce it. Instead, people anywhere in the United States can sue anyone who helped a Texan get an abortion. Successful lawsuits offer at least $10,000 per reported abortion, and the defendant, not the state, pays the plaintiff.
As U.S. Chief Justice John Roberts noted, the law ran contrary to abortion rights guaranteed under Roe vs. Wade, then the law of the land. Instead, he wrote in a concurring opinion, “Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review.”
Opponents included the firearms industry, which started getting nervous about the implications for gun owners.
Sure enough, by the time the U.S. Supreme Court later jettisoned Roe’s right to abortion, perhaps making the machinations of Texas unnecessary, California was already fighting fire with fire.
Last month, Gov. Gavin Newsom signed a bounty law targeting not abortion but guns. It allows private citizens to sue anyone for $10,000 for selling, distributing or importing ghost guns or assault weapons.
A new legal challenge to the Texas law was filed in April. Gun rights supporters have promised to challenge California’s law as well.
Entrusting the public to enforce the laws and paying them with bounties was once how this country kept the lights on — or at least, the lanterns lit.
“Before you had a really strong central state, and before you had a professional civil service, a lot of government services were provided on a bounty or a fee-for-service basis,” said Stanford Law School professor David Freeman Engstrom.
To catch wrongdoing back then, the state had to rely on people watching their neighbors – and maybe hauling them to court.
Today the U.S. government rewards people who report fraudulent war contracts, terrorism, violations of federal environmental law and Medicaid fraud. The state of California allows financial rewards for people who sue to enforce its Proposition 65 toxics warning law.
And, of course, there’s bail-jumping, for which we still have “professional” bounty hunters, though the subjects of bail bounties sign a contract surrendering many of their rights.
Not all bounties pay in money, Engstrom said — under federal environmental laws, a nonprofit is only able to recover attorney’s fees from a successful injunction against a polluter, or to protect an endangered species of frog. But the nonprofit is also able to demonstrate to its members that they’re “doing important work out in the world,” he said.
The Texas and California bounty laws are relatively novel now, said University of Georgia School of Law professor Randy Beck, but he worries about what could come next.
“There’s a long history with these things that is not very happy,” Beck said. “There’s a good reason that legislators have stopped using them, and I think I’m worried that a bunch of legislators are repeating history that we don’t want to repeat.”
‘We’ve created a monster’
One of the first bounty laws in history was enacted in England in the early 1300s. Local officials were supposed to set uniform prices for wine, but some of them were also wine sellers. That conflict-of-interest complicated King Edward II’s effort to reassert political control over a fractious kingdom.
But he couldn’t be everywhere. So, he deputized every man in England: If they found local officials selling wine, the Crown would seize that wine – and the person who made the complaint would receive one-third of the seizure.
Across the pond and 500 years later, Abraham Lincoln was tiring of fraudulent war contractors. The Union Army had been sold lame horses, sick mules, rancid food, guns that wouldn’t fire and artillery shells filled with sawdust. Sometimes they erroneously purchased them twice.
U.S. Sen. Jacob Howard of Michigan in 1863 led the charge for what would become the False Claims Act, the gold standard for bounty laws that, in its modern form, triples the damages for fraud and allots the person who reports it one-third of the award. The idea, said Howard: “Setting a rogue to catch a rogue, which is the safest and most expeditious way I have ever discovered of bringing rogues to justice.”
For most of its history, the U.S. government operated on bribes and bounties, argued Yale law and history professor Nicholas Parrillo.
Bottom of Form
His book “Against the Profit Motive” details how until the early 1900s, states often left unpaid tax collections to bounty hunters and rewarded them with a portion of the proceeds. Bounties also went to naval officers who captured enemy ships and took a percentage of their value.
People would rush to punish murder and thievery, Parrillo wrote, but getting communities to follow federal laws that the community itself didn’t agree with – or care about – was impossible without incentives.
The concept may evoke romantic notions of the California Rangers chasing the Five Joaquins Gang through the goldfields for a $6,000 bounty. But bounties had a darker history in the 1800s. The Fugitive Slave Act offered rewards for catching escaped slaves, and Mexico once offered bounties for Native American scalps.
U.S. lawmakers had created a system that encouraged bounty hunters to maximize their earnings by finding the most crimes, not the most serious crimes. That meant punishing people for the smallest technical violations of the tax code.
“When officials live by bounties, it becomes impossible for laypersons to attribute good motives to those people,” Parrillo explained.
Parrillo read from a lengthy speech by Maine Republican Thomas Brackett Reed, former Speaker of the House in the 1890s: “What community ever bestirred itself against frauds on the internal revenue, against moonshine distilleries, against smuggling, against a hundred other things which are crimes against the United States?
“You need to have the officials stimulated by a similar self-interest to that which excites and supports and sustains the criminal.”
And that, it should be noted, was in a speech in favor of bounties.
“American lawmakers recoiled from what they had done,” Parrillo said “They said, oh my god, we’ve created a monster, we need to shut it down right now.”
So out went bounties, and, eventually, in came paid professional IRS agents and beat cops, creating a system of salaried civil service employees. In the late 1800s and early 1900s, Congress and state legislatures gradually removed bounties and replaced bounty hunters with paid police.
Lincoln’s False Claims Act remained in effect, though Congress significantly diluted it in 1943, after a successful False Claims Act lawsuit worried military contractors during World War II. Then came the 1980s, when the Department of Defense was charged $7,000 for a coffee pot and $640 for a toilet seat.
At a hearing, Rep. Andy Ireland of Florida read from a list of fraudulent sales to the military during the Civil War and harkened back to the False Claims Act. “Here we are 120 years later,” he said, “and we are still confronted with the same problems in military procurement.”
“American lawmakers recoiled from what they had done. They said, oh my god, we’ve created a monster, we need to shut it down right now.”
NICHOLAS PARRILLO, YALE LAW AND HISTORY PROFESSOR
The act came roaring back, and today, Engstrom said, it’s the “purest form” of a bounty statute.
And California created its own modern version of bounty hunting with voter-approved Prop. 65. Since 1986, the state has invited residents to report violations of the environmental law that seeks to warn people about carcinogenic chemicals or those that affect reproduction in the products they consume.
The state permits citizens to bring private lawsuits for violations – and reap the rewards if they prevail in court or the company they sued decides to settle.
In 2019, the California Chamber of Commerce fought a new proposed Prop. 65 warning on acrylamide, a chemical created by cooking food, and one which the state couldn’t say definitively caused cancer. The Chamber won, and the Chamber’s attorneys said the court action halted “hundreds of pending – but not yet filed – private enforcement actions” about that one chemical alone.
But the new abortion and gun moves in Texas and California take the resurgence of bounty laws to a new level.
Texas State Sen. Bryan Hughes, the author of its new abortion law, wrote last September in a Wall Street Journal op-ed that though the law is unconventional, legislators were out of options.
“The law departs from conventional enforcement channels, obviously,” Hughes wrote. “In almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.
“In the case of abortion, the wronged party has been extinguished.”
For his part, Newsom didn’t discourage accusations that California’s gun law is aimed at merely trolling conservative states, when he took out ads in Florida urging residents to move to California and tweeted at Texas Gov. Greg Abbott on July 22.
“Texans will wake up this morning to this simple message,” Newsom wrote on Twitter. “If Texas can ban abortion and endanger lives, California can ban deadly weapons of war and save lives. If (Abbott) truly wants to protect the right to life, he should follow California’s lead.”
“Replicating the reprehensible Texas model only serves to legitimize and promote it.”
AMERICAN CIVIL LIBERTIES UNION LETTER
The American Civil Liberties Union isn’t having it from either side. In opposing California’s law allowing citizens to sue over ghost guns and assault weapons, the ACLU called the law “an attack on the Constitution.” It said that despite California’s aim to force the Supreme Court to choose between states’ rights and gun rights, California was following a dangerous precedent.
“Replicating the reprehensible Texas model only serves to legitimize and promote it,” the group wrote in May.
Beck, the Georgia law professor, notes in a forthcoming paper that red-state Idaho has already adopted a scaled-down version of the Texas abortion law, and blue-state Illinois is already considering legislation mirroring California’s gun law.
Idaho Gov. Brad Little has expressed doubts about the law’s civil enforcement: “While I support the pro-life policy in this legislation, I fear the novel civil enforcement mechanism will, in short order, be proven both unconstitutional and unwise.”
“It becomes kind of part of this culture war, one state retaliating against another state,” Beck said. “These things are not good in practice, and in my view, I think they have lots of problems. I’d like to kind of keep them in the corners for very, very infrequent use.”