Understanding Bail in Massachusetts

Most people have heard the term “bail” before, and have an idea that it is money paid to get out of jail after being arrested.  But, unless they have been arrested before, most people are unfamiliar with how bail works. 

Navigating the legal complexities of the bail system in Massachusetts can be a daunting experience for individuals and their families. This blog post aims to demystify the bail process in Massachusetts state courts, explaining how bail is determined, the methods for posting bail, and the various terms of release that can be imposed.

What is Bail

Bail is an amount of money that is deposited with the Court after someone has been arrested or charged with a crime. It has one purpose: To assure the defendant's appearance at court, each time, during the lifetime of his case. It is not punishment, and if the defendant appears in court every time he is required to, the bail money will be returned, regardless of the outcome of the case.  If the defendant fails to appear for a required court date, called a “default”, the bail money can be “forfeited” to the court, and whoever posted it will not get it back.

When is A Bail Amount Determined

Bail after an Arrest

Bail is set in two situations. First, it is often addressed immediately after someone has been arrested (almost always at the police station where they have been brought). After booking, a Bail Clerk will be contacted by the police and he or she will be told the circumstances of the arrest and the charges against the arrestee.   The Bail Clerk will decide if a bail is necessary to guarantee your appearance at Court if you are released, and if so, how much. Bail Clerk’s are allowed a fee of $40.00 each time they determine bail, so if a bail is set by a Bail Clerk after an arrest, $40.00 will be added to the amount the arrestee, or someone on his behalf, has to pay.  The $40.00 fee is not returned at the end of the case, it is to compensate the Clerk for her time.

Under ideal circumstances, you or a friend or family member will have contacted a Massachusetts criminal defense attorney to meet you at the police station, before you have answered any questions put to you by police personnel. If you did not have an attorney present at the police station, then once you have been released from police custody, the first thing you should do is contact aMassachusetts criminal defense attorney, to discuss your arrest and seek competent legal counsel.

Bail at Arraignment

The second time bail can be imposed is at a defendant’s arraignment, or first appearance in court.  Even if a bail was set by a Bail Clerk after an arrest, a prosecutor can ask that a judge determine if that bail is sufficient, and sometimes a higher amount is imposed. 

If someone is appearing at arraignment after being summonsed to court and was never arrested, the judge decides whether to release the defendant on their own recognizance (without having to pay bail), set bail, or, in rare cases, deny bail entirely.

Release on Personal Recognizance

In many low-risk cases, a judge may release a defendant on their own recognizance, meaning they are released without having to pay bail but must promise to return to court. 

What Happens at a Bail Hearing

It is the prosecutor that initiates a request for bail at an arraignment.

During the bail hearing the prosecutor makes his or her arguments about why the judge should set bail– usually either because of the very serious nature of the alleged crime(s), or because the defendant represents a “flight risk.” A “flight risk” is a defendant who might flee - fail to come back to court, or even leave the jurisdiction - if released prior to trial. 

When a prosecutor seeks a bail hearing, he or she is seeking to have a judge set bail high, so that the defendant will not be able to meet the bail, and so will be held in jail until trial.

It is extremely important, if the charges against you are either very serious or if you have prior defaults(failure to appear in court,) that you be represented at arraignment by an experienced Massachusetts criminal defense attorney.

Factors Influencing Bail Decisions

Judges consider multiple factors when deciding on whether, and if so how high, to set bail, including:

The nature and circumstances of the offense: More severe charges are likely to result in higher bail amounts.

The defendant’s ties to the community: Employment, family, and long-term residency in Massachusetts can positively influence bail decisions.

Criminal history: A record of prior convictions, and especially a history of failing to appear in court, may result in higher bail.

Risk of flight: Evidence suggesting the defendant might flee to avoid prosecution could increase the bail amount or lead to denial of bail. Prior court defaults is a major factor.

Public safety: Concerns about the defendant's potential danger to a particular person or the public may affect bail decisions.

How to Post Bail in Massachusetts

Once bail is set, the defendant or someone on their behalf can post bail. The defendant will NOT be allowed to go to the bank to get the money; he will be held in custody in lockup at the courthouse until the money is posted in the clerk’s office. So, unless the defendant has cash on him, someone else, usually a family member, will have to bring the funds to the courthouse.

Massachusetts does not have bail bondsmen, so whoever is going to post the bail will have to come up with the entire amount.  Sometimes this takes a matter of days, or longer, during which the defendant will be held at the county jail.

The bail can sometimes be posted at the jail, depending on the circumstances of the case and the terms of the bail order, but generally it is posted at the clerk’s office at the courthouse where the defendant was arraigned. 

The bail must be posted as a bank check. The court will not accept cash. 

The person who brings the bail to the courthouse is called the “surety”, and they are the only person who can collect the bail at the end of the case. They are given a paper receipt for the bail deposit, and they should carefully save it as it will be required to get the bail back. 

Other Terms of Release

When someone is released on bail, and sometimes even if no bail is imposed, other requirements can be imposed by a judge to ensure a person’s return to court, protect the safety of the public, or decrease the risk that a defendant will get in further trouble while his case is going on.

Common terms of release include:

No Contact Orders: Often the defendant will be prohibited from contacting the alleged victim or witnesses.

Travel Restrictions: Defendants might be required to surrender their passport or stay within certain geographical limits.

Substance Abuse Treatment: For cases involving substance abuse, attending treatment programs may be a condition of release.

Electronic Monitoring: In some instances, a judge may require electronic monitoring as a condition of release. This would involve wearing a GPS device to track the defendant's movements, ensuring they do not enter restricted areas and comply with travel restrictions.

Curfew: A defendant might be ordered to observe a curfew, requiring them to be at a certain place during specified hours, usually during the night, to minimize the risk of re-offending. This is often enforced by a GPS monitoring device.

Check-ins with Probation Department: Regular check-ins with a pretrial probation officer might be required to ensure the defendant remains engaged with the legal process and adheres to the terms of their release.

Employment: Maintaining or seeking employment can also be a condition of release, under the rationale that employment decreases a person's likelihood to commit crimes.

No Possession of Firearms: In cases where violence or the threat of violence is a concern, defendants may be prohibited from owning or possessing firearms.

Consequences of Violating Bail Conditions

Violating any terms of bail can lead to severe consequences, including immediate arrest and incarceration. The court may also increase the bail amount or revoke bail entirely, ensuring the defendant remains in custody for a period of months or until trial. Additionally, failing to comply with bail conditions can negatively impact the outcome of the defendant's case, as it reflects poorly on their reliability and commitment to following court orders.

Bail Reform in Massachusetts

It's important to note that bail practices have been under scrutiny across the United States, including Massachusetts, leading to ongoing discussions and reforms aimed at ensuring fairness in the justice system. Critics argue that the cash bail system disproportionately affects low-income individuals, effectively punishing them for their poverty by keeping them in jail while wealthier defendants can afford to pay for their freedom.

In response to these concerns, Massachusetts has seen legislative and judicial efforts aimed at reforming bail practices to prioritize the release of defendants on their own recognizance with conditions, rather than financial barriers. These reforms seek to balance the rights of the accused with public safety concerns, ensuring that pretrial detention is used judiciously and that conditions of release are reasonable and related to the specifics of each case.

Conclusion

The bail system in Massachusetts is a complex mechanism designed to balance the presumption of innocence until proven guilty with the need to ensure defendants appear in court and do not pose a danger to the community. Understanding this system, including how bail is determined, the options for posting bail, and the conditions that can be imposed, is crucial for defendants and their families navigating the legal process. As the conversation around bail reform continues, it's likely that Massachusetts will see further changes aimed at increasing equity and fairness in the pretrial justice system.

Contact Ernest Stone Today

Lead attorney Ernest Stone has over two decades of experience in multiple criminal defense areas, and has successfully conducted hundreds of bail hearings.  

If you or a loved one is facing criminal charges in Massachusetts, having a knowledgeable and experienced criminal defense attorney by your side is important. Contact H. Ernest Stone, Attorney PC, today for a free consultation. 

Being accused is traumatic. We understand. We will get you through the storm. Schedule a free case review online or by calling (978) 705-4537.