Learn how bail is set

Learn about the process for how bail is set, the types of bail, and what the determining factors are.

Table of Contents

Overview

Bail isn’t a form of punishment. The amount of bail set doesn’t 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.

Who sets bail?

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 authority to release people in custody. 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 isn’t the bail magistrate’s job to determine if a defendant is guilty or not — that’s for a judge or jury to decide.

What are the types of bail?

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.

A person who has been arrested can either be released on personal recognizance or will have to pay a cash bail.

  1. Personal recognizance. This means the court will release a defendant from jail on their word or promise to appear on their scheduled day and time in court.
  2. Posting cash bail. If the bail magistrate has decided that the defendant may not appear in court on their scheduled court date, they may determine whether or not a cash bail would make the defendant more likely to appear in court in the future.  

Every court case is unique. Whether or not the court releases a defendant on personal recognizance or cash bail depends on many factors.

In some cases, the court can order the defendant to participate in a pretrial services program instead of bail or as a release condition. A sheriff who has custody of a defendant held on bail can give a written recommendation that a defendant would benefit from a pretrial services program to the court, probation commissioner, prosecutor, defendant, and defendant’s attorney. The court may set a hearing to decide. If the order is made, it has to be made with the defendant’s consent.

 

What are the deciding factors for setting bail?

Each bail depends on the unique situation. When 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 decide if the defendant:

  • Has a Board of Probation (BOP) record or other criminal records
  • Has a history of defaults (a history of not showing up to court when they’re supposed to)
  • Is a flight risk (is likely to leave the state or country to avoid court appearances)

The bail magistrate will also consider whether or not:

  • Releasing the defendant will harm the community and/or the victim (in domestic violence cases)
  • The defendant is on probation or parole, or has other open cases
  • The defendant is from the area or has family in the area
  • The defendant has a job

All these factors are considered in addition to deciding whether or not a defendant is likely to come to court on their court date.

What happens if cash bail is set?

The defendant or the defendant’s surety must pay that full amount in cash to the bail magistrate before they’re released from jail. A surety is a person who posts (pays) the bail on the defendant’s behalf, usually a defendant’s family member or friend. Usually the defendant will call a family member or friend if they want to ask them to post the bail on their behalf.

The bail magistrate turns that bail over to the court, which holds the bail money until the case is over. If the defendant doesn’t show up for a court date, the judge may order to forfeit the bail, which means that the defendant loses their right to get the bail back at the end of the case.

The bail magistrate also collects a $40 statutory fee from the defendant when they’re released from jail.

Contact

Phone

Catherine M. Coughlin, Esquire (617) 788-7312

Address

Suffolk County Courthouse
3 Pemberton Square
Room 320
Boston, MA 02108
Last updated: April 22, 2022
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