Guideline 8:04
The law prohibits setting an out of court bail where a person is arrested for violating an abuse prevention order or for a crime involving domestic abuse while a c. 209A abuse prevention order is in effect against the defendant. G.L. c. 276, § 57. The named victim of the new offense need not be the plaintiff of the active c. 209A abuse prevention order.
Where a person eighteen years of age or older is arrested for any other act that would constitute domestic abuse or strangulation in violation of G.L. c. 265, § 15D, the law permits the setting of out of court bail, but only after six hours from the time of arrest. G.L. c. 276, §§ 57 and 58. Upon the expiration of this six hour time frame, a clerk magistrate or bail commissioner may admit the person to bail upon determining that “such release will reasonably assure the appearance of the person before the court and will not endanger the safety of any other person or the community.” G.L. c. 276, § 57. Whether or not a cash bail is set, the clerk magistrate or bail commissioner should also consider whether to impose conditions of release “in order to ensure the appearance of the person before the court and the safety of the named victim, any other individual, or the community.” G. L. c. 276, §§ 57 and 58. A condition of release that must always be imposed is that the person commit no new offenses. G.L. c. 276, § 58. The person is to be told that failure to comply with any of the conditions of release could result in bail revocation and detention without bail.
In deciding whether to admit the person to bail or set conditions of release, the clerk magistrate or bail commissioner shall, to the extent practicable, have immediate access to all Criminal Offender Record Information (CORI) (including out of state records), board of probation records, and pending and prior police incident reports related to the person detained. This includes immediate access to sealed records. G.L. c. 276, § 100D. The clerk magistrate or bail commissioner should request police assistance in accessing these records if unable to do so on their own.
If the person is released, the arresting police department is to make a reasonable attempt to notify the named victim of the person’s release.
The law also requires that when admitting to bail a person who has been arrested for a criminal act constituting domestic abuse, the person is to be provided with informational resources regarding domestic violence, including a list of nearby intimate partner abuse education (IPAE) programs.
Commentary
Out of court bail is not to be addressed by judges on the Judicial Response System. See “Judicial Response System – Release of Persons on Bail or Recognizance” policy dated February 21, 1995. Out of court bail is handled by Clerk Magistrates, Assistant Clerk Magistrates, or bail commissioners.
The factors to be considered when determining whether to set a cash bail are: (1) the nature and circumstances of the offense charged, (2) the potential penalty the person faces, (3) the person’s family ties, (4) financial resources, (5) employment record (6) history of mental illness (7) reputation (8) length of residence in the community, (9) record of convictions, if any, (10) any illegal drug distribution or present drug dependency, (11) any flight to avoid prosecution (12) fraudulent use of an alias or false identification, (13) any failure to appear at any court proceeding to answer to an offense, (14) whether the person is on bail pending adjudication of a prior charge, (15) whether the acts alleged involve domestic abuse, or violation of an abuse prevention order, (16) whether the person has any history of abuse prevention orders issued against them, (17) whether he is on probation, parole, or other release pending completion of sentence for any conviction, and (18) whether he is on release pending sentence or appeal for any conviction See G.L. c. 276, § 58.
Those same factors should be considered when deciding whether to impose conditions of release, in addition to considering whether there is a risk that the arrested person will: (1) obstruct or attempt to obstruct justice; or (2) threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror. G.L. c. 276, § 57.
If a person arrested for domestic abuse or strangulation in violation of G.L. c. 265, § 15D is to be released, the law requires that reasonable efforts be made to inform the named victim of such release prior to, or at the time of, said release. G.L. c. 209A, § 6; G.L. c. 276, § 57. While c. 209A assigns this duty to the clerk magistrate or bail commissioner, G.L. c. 276, § 57 provides that when release is from a place of detention, the arresting police department is to make reasonable attempts to notify the named victim. It is appropriate for the clerk magistrate or bail commissioner to instruct the police to comply with this notification requirement. See Guideline 8:08 Bail Procedures: Notifying the Named Victim.
Upon admission to bail, informational resources regarding domestic violence, including a list of nearby intimate partner abuse education (IPAE) programs, is to be provided to the arrested person. A pamphlet entitled “Alternatives to Abuse” is available for use by the Trial Court to provide to defendants, and includes a statewide and regional listing for IPAE programs, as well as offices of the Department of Transitional Assistance (DTA), career centers, and legal assistance support. This flyer is available on the Trial Court’s public website on Mass.gov and can be downloaded and printed as needed.
If a defendant violates conditions of release set by a clerk magistrate or bail commissioner before appearing in court, a clerk magistrate (but not a bail commissioner) can issue an arrest warrant revoking the defendant’s bail. Bail conditions set by a clerk magistrate or bail commissioner stand in the same position as bail conditions set by a judge. There is no constitutional right to release on bail prior to trial; that right is solely a creation of statute. Querubin v. Commonwealth, 440 Mass. 108, 113-14 (2003). Where the bail statutes permit a clerk magistrate or bail commissioner to make bail dependent on compliance with stated conditions, “the liberty interest of a person admitted to bail is condition; if the person violates the explicit condition of his release, then his liberty can be curtailed.” Paquette v. Commonwealth, 440 Mass. 121, 126 (2003). A “court has inherent power to revoke a defendant’s bail for breach of any condition of release.” Id. at 128. Accordingly, a clerk magistrate has the inherent authority to order the arrest of a defendant upon the receipt of credible information that the defendant has violated the conditions. See G.L. c. 218, §§ 32 and 33. See also Paquette, 440 Mass. at 129 (“A defendant cannot be heard to complain that his constitutional right to liberty has been violated when continued freedom was entirely within his own control, and the deprivation thereof was an inevitable consequence of his alleged failure to conform his conduct to the laws of this Commonwealth and to the explicit condition of his earlier release.”). A police department that learns of an alleged violation of the conditions of release should contact the on-call clerk magistrate. If the clerk magistrate decides to issue a warrant, and the clerk magistrate does not have access to MassCourts, a temporary paper warrant should be issued.
Contact
Phone
Address
| Last updated: | October 20, 2025 |
|---|