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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


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 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 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.

There are 2 different types of bail a defendant can be released on:

  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. After 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 participation in a pretrial services program in lieu of bail or as a condition of release. A sheriff with custody of a defendant held on bail can provide a written recommendation that a defendant would benefit from a pretrial services program to the court, commissioner of probation, prosecutor, defendant, and defendant’s attorney. The court may set a hearing to decide, but if the order is made, it must be with the defendant’s consent.

What are the determining factors for setting bail?

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 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.

All these factors are in addition to determining 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 amount 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 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 doesn’t 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 when they’re released from jail.



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


Suffolk County Courthouse
3 Pemberton Square
Room 320
Boston, MA 02108
Last updated: September 17, 2018