The purpose of bail is to make sure that a person accused of a crime (a defendant) will come to court for proceedings related to their case after they are released from jail or from being held at a police station.

In other words, bail is a way of helping to ensure that a defendant will appear in court at a later date.

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 court

    The 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.