What Is Bail and How Does It Work?

By | 2018-05-14T11:11:46+00:00 March 13th, 2017|Criminal Defense|0 Comments

In America, you are innocent until proven guilty and you have the right to a fair trail. These are things that not all countries give their citizens. Even if you are arrested and charged with a crime, you won’t necessarily be convicted. Sometimes defendants can be challenging to find or they attempt to avoid a trial date and potential conviction. Bail is an effective tool used to ensure that a person accused of a crime will show up to court after they are released from jail or from being held at a police station.

If you’ve been arrested or charged with a crime, Schulze Law can assist you during the complicated, complex and traumatic process.

We will explain what bail is and how it works in Massachusetts so you understand your rights.

How Did The Bail Bond System Get Started?

Historically, the bail bond system developed out of common law. The posting of money or property in exchange for temporary release pending a trial dates back to 13th century England. The modern practice of bail bonds has continued to evolve in the United States while its existence has become less common in most modern nation-states.

How Does Bail in Massachusetts Work? Here are the basics:

Many people that are arrested in Massachusetts are able to post bail at the police station. The bail typically used is referred to as “personal recognizance”, which means your “promise to appear” at your next court date. At a $40 cost to you, a clerk or bail commissioner will come to the police station. They will decide if more than just your “promise to appear” is needed to help confirm and solidify the probability that you will show up to court. If the clerk finds this to be the case, based on certain factors and criteria, they will require you post a certain amount of cash bail before you are released.

If you are transported straight from the police station to the court for arraignment, the bail determination is usually made by a judge. If the clerk sets bail at the police station, and you post that amount, it is a possibility that the judge at your arraignment may still increase the amount of your bail. If this happens, the court will handcuff and place you in custody, and you will not be released until the increased amount of bail is posted. The bail that you post is used as collateral for your promise to appear at all court appearances. After your case is over and removed from any court proceedings, your posted amount of bail minus any fees owed to the court will then be returned.

Bail is accessible to most defendants, but there are some factors that make it more challenging to attain bail. Some variables are if the case is involving a high profile crime, the dangerousness and threat of the suspect, and whether or not they are a flight risk. These circumstance are all evaluated to determine bail.

Sometimes bail is denied or not an option. For example, if a dangerous serial killer is arrested, he/she  may pose a too big of threat to the safety of others to be released. Similarly, a very wealthy individual may be considered a significant flight risk due to the accessible resources at his/her disposal. There are exceptions, but the opportunity to post bail is often granted. Remember, if you do not show up to court and you fail to keep up your end of the bargain, you will lose your money.

Also, if you are charged with any new offense(s) while out on bail, your bail can be revoked and you can be held for up to sixty days for the previous charge.

If the clerk or judge denies your release on your personal recognizance and orders that you are held on bail, you have the right to file a petition for review in the Superior Court. A hearing will be held on the next business day.

Unlike many other states, Massachusetts does not have bail bonds. A bail bondsman, bail bondsperson, bail bond agent or bond dealer is any person, agency or corporation that will act as a surety and pledge money or property as bail for the appearance of persons accused in court. A surety is a person who takes responsibility for another’s performance of an undertaking, for example their appearing in court or the payment of a debt. Massachusetts does not permit private bail agents to deal in bail bonds. Other states along with Massachusetts that do not allow private bail are Maine, Oregon, Illinois, Kentucky, Nebraska, Wisconsin, and Washington, D.C.

Contact Schulze Law to assist and guide you through other options available to you.

According to http://www.mass.gov, here are more specifics on the laws of bail in Massachusetts:

Bail is Not a Form of Punishment. It’s important to remember that the amount of bail set does not indicate a defendant’s innocence or guilt, merely that they appear in court. However the severity of the crime may play into the determination of whether the defendant will appear in court.

The bail magistrate sets bail. In Massachusetts, a person arrested when courts are closed can request to be released until the court is next open.  The police will call a Bail Magistrate to determine whether the defendant can be released, either on personal recognizance or a cash bail.

A bail magistrate is a public officer with limited judicial authority. After reviewing the facts of an arrest, the bail magistrate decides whether or not a defendant is likely to appear in court on their scheduled court date.

The bail magistrate’s only job is to set bail. It is not the bail magistrate’s job to determine if a defendant is guilty or not guilty—that’s for a judge or jury to decide.

The bail magistrate reviews the defendant’s record, and decides whether or not a defendant should be released from jail before their scheduled court date. The bail magistrate determines if the defendant will be released on either personal recognizance or cash bail. Every court case is unique. Whether or not the court releases a defendant on personal recognizance or cash bail depends on many factors.

Bail Release Types: Personal Recognizance and Cash Bail

A defendant can be released on two different types of bail: on personal recognizance, or after posting cash bail.

Personal recognizance means that the court will release a defendant from jail on their word or promise to appear on their scheduled day and time in court.

Cash bail. If the bail magistrate decides that the defendant may not appear in court on their scheduled court date, they may decide whether or not a cash bail would make the defendant more likely to appear in court in the future.

The Process: How Bail is Set

Determining factors. When first setting bail, the bail magistrate considers the type of crime the defendant is accused of committing and the potential penalty, or sentence, for that crime. The bail magistrate will also determine if the defendant:

  • is a flight risk
  • has a Board of Probation (BOP) record or other criminal records
  • has a history of defaults – in other words, if the defendant has a history of not showing up when they’re supposed to be at courtThe bail magistrate will also take into account whether or not the defendant is:
  • on probation or parole, or has other open cases
  • from the area or has family in the area
  • employed
  • in domestic violence cases, if a defendant’s release will harm the community and/or the victim. This is in addition to determining whether or not a defendant is likely to come to court on their court date.

If a cash bail is set, the defendant or the defendant’s surety must pay that amount over to the bail magistrate before they are released from jail. A surety is a person who posts (pays) the bail on the defendant’s behalf, usually a family member or friend of the defendant.

The bail magistrate turns that bail over to the court, which holds the bail money until the case has been completed. If the defendant does not appear for a court date, the judge may order the bail be forfeited, meaning that the defendant loses their right to get the bail back at the end of the case.

The bail magistrate also collects a statutory fee of $40 from the defendant upon their release from jail.

Bail Conditions

No bail: Major felony charges. In Massachusetts, defendants charged with more serious criminal felony charges, such as murder or rape, may be held without bail until they are brought to trial, or plead guilty.

No bail: Additional violations or outstanding defaults resulting in re-arrest. If a defendant is arrested for violating an Abuse Prevention Order (Form 209A), or if a defendant has an unresolved default warrant with a penalty of over 100 days in jail, they will not be released on bail. The police will hold the defendant until they are brought to court.

No bail: Probation warrants. Probation officers can request warrants for ELMO (electronic bracelet) and probation violations. Defendants arrested on these types of warrants cannot be bailed.

Default warrant. When a defendant fails to pay fees and fines connected to the court case, the court will issue a default warrant. The default warrant includes the amount that the defendant owes related to the case. In order to be released from custody, the defendant must post (pay) that amount as bail.

Release with conditions. The bail magistrate can release the defendant with certain conditions that the defendant must follow. For example, in a domestic violence or harassment case, the bail magistrate may order that the defendant stay away and have no contact with the victim. The defendant can be re-arrested for violating the conditions imposed by the bail magistrate.

Penalty for failure to appear in court after release on bail or recognizance. A defendant who does not appear in court without a satisfactory excuse after release on bail or personal recognizance may be punished by a fine of $10,000 or by imprisonment for a year, or both, in the case of a misdemeanor, and by a fine of $50,000 or imprisonment for five years, or both, in the case of a felony.

Penalty for committing a crime while on release on bail or personal recognizance. If a defendant is charged with another crime while on release on bail or personal recognizance, the court may revoke (cancel) the terms of their release. The court may order the defendant be held without bail for up to 90 days.

Legal Counsel Fee. The court cannot return the bail to the defendant or to the surety (the person guaranteeing the bail will be paid) until the Legal Counsel Fee has been paid.

Check out this link for helpful bail terms: http://www.mass.gov/courts/selfhelp/criminal-law/bail-terms.html

A common question we hear from someone who is charged with a crime is what the amount of bail they can expect to have to post once the case gets filed. The answer varies from case to case and from person to person. The answer to this question also depends on the judge hearing the bail argument, the district attorney prosecuting the case and the county where the case will be prosecuted. There are no formulas for setting bail in Massachusetts.

This is why it’s imperative to have the knowledgeable Schulze Law Team on your side. If you or someone you know needs assistance, we are here to help you. Contact us by calling 857-300-5300 or visiting our website https://schulzelaw.com/contact-us/

With decades of experience and countless cases behind us, we cover many areas of criminal law. These types of criminal cases are serious and could result in: prison, probation, criminal records, unnecessary penalties & fines, or even worse. No one should have to fight criminal charges alone. With Schulze Law on your side, you won’t have to.

If you’ve been arrested or have any questions regarding bail, we can help.

We cannot stress enough the importance of obtaining a strong defense team. The attorneys and staff of Schulze Law are the skilled, aggressive attorneys you need to make a positive difference in your life if you have been arrested.

Resources: http://www.mass.gov

About the Author:

Michele Sloane
Michele is Schulze Law’s dynamo Chief Operating Officer (COO). She is responsible for keeping everything running smoothly, every day, and for making sure the team is doing everything we can for our clients—ultimately, that our clients, you, are happy. She has more than a decade of experience in the field.