The Foundation: Presumption of Innocence
Massachusetts bail procedures are built on a fundamental principle of criminal justice: the presumption of innocence. If you’re charged with a crime, you are presumed innocent until proven guilty. Bail is the mechanism that allows this principle to work in practice after an arrest.
Regardless of the circumstances for the arrest and the alleged crimes, every defendant deserves competent legal counsel to protect their rights. Anyone facing pre-trial detention in jail should immediately contact an experienced Massachusetts criminal defense attorney who can often coordinate the surrender process and appear with you to advocate for favorable bail conditions from the start.
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The Arrest and Initial Processing
When someone is arrested in Massachusetts, they’re typically taken to a police station for processing. This can occur either through a traditional arrest or by turning yourself in for a warrant.
After processing is complete, one of two things happens:
- Direct transport to court – The person is taken directly to court for arraignment
- Overnight hold – The person is held in the station’s holding cells and brought to court the following morning
The Bail Magistrate’s Role and How Bail Is Set
When someone is arrested outside of court hours, a bail magistrate (or bail clerk) is called to the police station. This official reviews the police report and sets an initial bail amount. They have several options:
Personal Recognizance: The individual makes a personal promise to appear in court the next day, typically with a nominal $40 fee
Cash Bail: The commissioner can require an additional bail amount beyond the $40 fee, which must be paid at the police station before release
Surety Bond: The commissioner may allow a surety arrangement where a third party (family member, friend, or bail bondsman) can bail someone out of jail by agreeing to guarantee the defendant’s appearance in court and becoming responsible for the full bail amount if the defendant fails to appear.
If bail is posted at the station, the person goes home for the night and returns to court the next day.
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The Court Arraignment
The bail process doesn’t end at the police station. At the arraignment, the district attorney has the opportunity to address bail with the judge. This involves:
The DA’s Options
The prosecutor can request either personal recognizance or a specific cash bail amount.
Bail Argument and Amount
The defendant’s attorney and the assistant district attorney present arguments to the judge about what bail amount is appropriate and necessary. During this argument, both sides address specific factors that Massachusetts courts consider when setting bail. This is why having an experienced criminal defense lawyer in Massachusetts representing you is so crucial – choosing to represent yourself to the judge could unintentionally result in a higher bail amount.
How is Bail Determined?
Massachusetts judges weigh numerous factors to balance ensuring court appearance against the presumption of innocence:
Flight Risk Assessment:
- Community ties: Does the defendant have family, employment, or a long-term residence in Massachusetts?
- Criminal history: Does the person have any prior failures to appear in court or defaults on previous bail?
- Severity of charges: More serious charges with longer potential sentences may increase flight risk
- Financial resources: What amount would be meaningful enough to ensure return to court?
- History of compliance: Has the defendant previously complied with court orders and conditions of release?
Public Safety Considerations:
- Nature of the alleged offense: Is it violent? Does it involve weapons or threats?
- Prior criminal record: Past convictions, particularly for similar offenses or violent crimes
- Current legal status: Was the defendant already on probation, parole, or pretrial release when arrested?
- Substance abuse history: Evidence of drug or alcohol issues that may affect behavior
- Risk to victims or witnesses: Is there a specific person who may be in danger?
- Pattern of behavior: Does the criminal history show escalating or repetitive conduct?
With these considerations in mind, it’s imperative to have a criminal defense lawyer who can aggressively argue against unreasonable bail release conditions and fight for you. When there is so much on the line, having legal counsel is the clear and practical choice.
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Balancing the Factors Involved With Surety Bonds and Liability
When family or friends want to bail someone out, they should understand the various options and risks involved. For example, someone with a stable job, homeownership, family in the area, and no criminal record will typically be released on personal recognizance or low bail.
Conversely, someone with an extensive criminal history, no local ties, prior failures to appear, and facing serious charges may be held on substantial bail.
Understanding Surety Bonds
When cash bail is set at an amount the defendant cannot afford, family members or friends may step in to help bail out their loved one. In Massachusetts, this can be done through a surety arrangement or surety bond.
A surety is a person or entity that agrees to be responsible for ensuring the defendant appears in court. When family or friends act as sureties, they become co-signers who guarantee the bail amount. This arrangement may require:
- Collateral: Real estate, vehicles, or other valuable assets pledged to secure the bail bond
- Financial documentation: Proof of assets and ability to pay if needed
- Legal agreements: Signed contracts making the surety legally responsible
Serious Consequences for Sureties
Those who agree to be sureties take on significant legal and financial risks. Failure to appear in court by the defendant or violating bail conditions can result in the following:
- The surety becomes legally required to pay the full bail amount to the court
- Any collateral provided can be seized by the court, including homes or vehicles
- The surety’s credit can be severely damaged through judgments and collection actions
- The surety may face legal proceedings to recover the bail amount
- There is typically no refund or forgiveness of the obligation, even if the surety had no involvement in the violation
Before agreeing to be a surety, family members and friends should carefully consider these risks and should consult with an attorney to fully understand the commitment they’re making.
Bail Conditions of Release
Beyond setting a bail amount, judges can impose various conditions, including:
- Stay away/protective orders (aka no contact orders) with alleged victims
- Remain drug and alcohol free
- No contact with minors
- Other conditions specific to the case
Dangerousness Hearings (58A)
In certain serious cases, the prosecution may request a pre-trial hearing, or what’s known as a dangerousness hearing under Massachusetts General Law Chapter 276, Section 58A. This is a separate proceeding where the Commonwealth argues that no amount of bail or conditions of release can reasonably assure the safety of the community or any person.
If the judge finds the defendant dangerous after a hearing, they can be held without bail for up to 90 days (or 120 days in superior court cases) pending trial. These hearings are serious matters that require immediate attention from qualified legal counsel, as they can result in pretrial detention regardless of the charges or the defendant’s criminal history.
Paying and Recovering Bail
If cash bail is set, it must be paid at the clerk’s office before the individual can be released.
Important: Any cash bail posted is returned to the person who posted it at the conclusion of the case.
If personal recognizance is granted, the individual simply promises the court they will return to answer for the charges and is free to go.
Contact a Criminal Defense Attorney Today for Help With Bail
Being arrested, going to jail, and bail hearings can be nerve-wracking. If you or someone you care about needs help with bail in Massachusetts, call Nate Amendola Defense at our office now to speak with a criminal defense lawyer who understands the system. Retaining skilled legal counsel could literally mean the difference between going to jail and maintaining your freedom while your case proceeds.
We offer a free initial consultation, 24/7 availability, and tireless commitment to providing exceptional client support. Don’t go to court alone–contact us immediately and we’ll be ready to provide the representation you deserve.
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