258E Guideline 8:04: Bail Procedures: Out-of-Court

Part of the Guidelines of Judicial Practice: Harassment Prevention Proceedings.

Guideline 8:04

Unlike c. 209A, the bail statutes do not contain any specific provisions related to c. 258E orders. As such, bail magistrates or commissioners are not prohibited from setting an out-of-court bail when a person is arrested for violating a c. 258E order, nor are they required to wait six hours before doing so. Similarly, bail magistrates or commissioners are not precluded from setting out-of-court bail where a person is arrested for a crime while a c. 258E order is in effect. While a violation of a c. 258E order does not automatically trigger the “six hour rule” that applies to c. 209A violations, the six hour rule may apply if the defendant is charged with a crime involving abuse as defined by c. 209A, § 1. As such, where a person eighteen years of age or older is arrested for an act that would constitute domestic abuse as defined by c. 209A, § 1 or strangulation in violation of G.L. c. 265, § 15D, six hours must pass before an out of court bail may be set. G.L. c. 276, §§ 57 and 58.

See 209A Guidelines, Guideline 8:04 Bail Procedures: Out-of-Court.

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, and 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 him,
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 Rule 3 of the Rules of the Superior Court Governing Persons Authorized to Take Bail, citing 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. 258E, § 8; G.L. c. 276, § 57. General Laws 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.

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. See 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 conditional; 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 clerk magistrate of the issuing court. 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.

Last updated:	October 20, 2025