This summer, bail has been on people’s minds. Earlier this summer, there was lots of speculation about who posted United States NY Representative George Santos’s bail. News outlets asked the court to reveal who paid $500K in May, but Santos and his lawyer tried to prevent the release. After many weeks of speculation and the judge’s order, we learned that Santos’s father and aunt had posted the bail. (Whether anyone had loaned or given them the money was not revealed, however.)
On the other side of the spectrum, Illinois became the first state to eliminate cash bail, thanks to the Illinois Supreme Court upholding the Illinois Pretrial Fairness Act in July. It’s a big win for bail reform (and the abolition movement); studies have shown bail policies disproportionately hurt under-resourced populations and can increase crime instead of reducing it.
As things may be shifting in the real-world legal system, it made me curious to understand what murder mysteries get wrong about bail.
Bail vs. Bond
Before we get to procedure, I think one important thing is to define what bail is and what it is not. The American Bar Association defines bail as “the amount of money defendants must post to be released from custody until their trial.” Bail is an incentive for defendants to return for their court dates. If they comply, they receive the money back after the trial (with some fees taken out), but if they fail to show up for court dates, the money may be forfeited.
Bail and bond are not the same, though related. If a person cannot pay their bail, a bonding company can post the bail on behalf of the defendant, who pays the company a fee, usually 10% that will not be returned to the defendant. Phillips Carson Phillips law firm explains, “This financial pledge from the bonding company is called a bond. A bail bond is a contract between you and the bonding company.”
The Truth about Recovery Agents
Most of us have seen television shows and books where a recovery agent — also known as a bail enforcement agent, or more commonly known as a bounty hunter — does something like body-slamming someone who has skipped their court date. It seems a bit like the Wild West.
But what we see on television isn’t always what happens in real life. There’s no federal law on bail enforcement agents, so it can vary widely by state. Some states — Florida, Illinois, Kentucky, North Carolina, Oregon, South Carolina, and Wisconsin —either prohibit or restrict the work of bail enforcement agents. Other states may require a license to be able to work as a recovery agent.
According to Ruane Attorneys at Law, Connecticut has one of the strictest licensing requirements: “Applicants have to complete at least 20 hours of training in criminal justice. In addition, they have to undergo at least eight hours of firearm training.”
While it is true that bail enforcement agents can search the defendant’s home without a warrant, some states limit the ability of the recovery agent from going to the defendant’s friends’ and family’s properties without a license unless they know that the defendant is there. Plus, the bail enforcement agent must have a statement from the court that the defendant is considered a fugitive, also known as a bail piece.
But as Justia noted, since there isn’t a federal law outlining what recovery agents can and cannot do, and states differ on the roles, “Motivated by claiming their fee, a bounty hunter may go too far and cause injuries to the defendant and other people through the use of violence.”
Not Footloose and Fancy-Free
Being out on bail doesn’t mean the defendant is completely free. There may be conditions of bail, which, if violated, may result in being brought back into custody. Bail conditions can include: the defendant not being able to leave the state, no drug use, turnover of weapons, and receiving treatment or medical care. Most importantly, they may have many court dates to attend, which if missed, can also result in forfeiting bail.
Some bail conditions may require electronic monitoring. Injustice Watch wrote in 2022: “[A]bout 3,500 of our neighbors in Cook County are forced to live with a GPS monitor strapped to their ankle that tracks their every movement. They are forbidden by court order from stepping outside their home without permission.”
Depictions of bail and murder are stretching the truth. We may see in a book how a friend or family member posts bail for someone charged with murder, but generally, that’s just in the realm of fiction. In real life, judges usually deny bail for people who are accused of murder.
Of course, there are reasons why bail may not be depicted completely accurately in murder mysteries. It’s a great way to amp up tension as people have to worry about making bail or dealing with someone who has bail jumped, to name a few possibilities. For instance, an amateur detective out on bail could get into a lot of trouble contacting witnesses, depending on their bail conditions. Plus, a defendant can be charged for skipping bail in addition to whatever crime they received bail for in the first place. Someone could even figure out how to fake their electronic monitoring device to give themselves an alibi.
When a person is out on bail and is convicted, they usually are not immediately put into custody. There will be a sentencing hearing, sometimes months later, and even then, they may be given a “Date of Surrender.” Of course, it depends on what the person who has been convicted has done — if it’s homicide, the court probably won’t let them out until the Date of Surrender.
Many depictions of the conclusion of a murder trial often show the person who has been convicted being led off to prison immediately, but there’s generally some time between the sentence and the date of surrender. That would be another great plot point in a murder mystery: the main character has been wrongly convicted and has until their Date of Surrender to prove their innocence.
As in previous editions of this series on what murder mysteries get wrong, this discussion is an exploration of how fiction differs from the real world. It’s not meant to be a critique of writers who may not strictly confine themselves to reality, because fiction is not reality. Sometimes choices are made to “fudge the rules” in a work of fiction because it is much more interesting and engaging than real life.