Bail Me Out! A Massachusetts Criminal Defense Attorney Answers Your Bail Questions

It can be one of the most misunderstood aspects of getting arrested – what is bail? How does it work? Must you pay in cash? How does it all happen? As a Dedham criminal defense attorney, let me address some questions about bail. (And I hope you won’t ever need to come up with it.)

A brief history: Bail in the United States came out of the English legal system, in which the court granted the accused person the right to offer his property or monies to the court, so that he could secure temporary freedom while his criminal trial was pending. As the years passed, bail became more expensive, in order to cover the expenses of the court. Eventually the entire process of bail became very complicated.

It’s important to remember that bail is not designed to punish someone for being arrested. It has one purpose: To assure the defendant’s appearance at court, each time, during his prosecution (which can take, in more complex cases, up to a year.) Bail can become relevant in one or both of two environments: 1) Immediately after someone are arrested (i.e., at the Police Station where they have been brought); and/or 2) At arraignment in court. At Police Stations, persons accused of lower-level crimes (such as “simple” assault and battery,) will almost routinely be released either on personal recognizance, or for a small fee of usually $40.00. This can be paid at the Police Department where the arrested person is being held, by either the accused himself, or by a friend or family member.

At arraignment, which takes place on the next business day that the court is in session, the District Attorney’s office that is prosecuting the case will sometimes seek what is called a “bail hearing.” This hearing is requested when the prosecutor feels that either the crime that the person is accused of is extremely serious (usually involving substantial violence,) or that the defendant poses a “flight risk.” A “flight risk” is a term used to describe someone who would “jump bail” if released, and flee to another country or place where they can no longer be prosecuted for their alleged crime. When a prosecutor seeks a bail hearing, he or she is seeking to have a judge set bail so high, that the defendant will not be able to meet the bail, and hence be held pending trial.

There are over a dozen factors that District Court judges are required to take into consideration when and if setting bail. A very partial sampling of the criteria that must be used in a judge setting bail, include:

1. Nature and Circumstances of the Offense. For example, with assault and battery charges, the judge may consider the relationship between the defendant and the victim. The may consider whether the assault and battery involves domestic violence.

2. Family Ties. Substantial family relationships can persuade a judge to release a defendant on lower bail.

3. Employment. If a defendant has held a job for a considerable period of time, this is indicative of a likelihood of returning to court.

4. Length Of Residence. This is important. A defendant who has been living here most of his life is much more likely to return to court and not ‘jump bail,’ than is someone who has not lived here very long.

5. Prior Court Defaults. This relates to the defendant’s record (if he or she has one.) If the defendant has even one default on a prior case (i.e., he or she has not appeared in court when required to,) prosecutors will not hesitate to “leap on” this, and argue for very high bail. Obviously, it helps when this is not an issue. On the other hand, if the defendant has no history of defaults, a lot of defaults on his or her record the judge is likely to set bail.

When setting bail, District Court judges are required to state their reasons for setting bail they order. If a defendant doesn’t like the judge’s decision at a bail hearing, he or she has the right to seek a bail review in the Superior Court that has jurisdiction over the District Court. In this process, a Superior Court judge reviews the bail amount and conditions set by the District Court judge. The Superior Court judge has the power to lower the bail, if he or she agrees with the arguments presented by the defendant’s lawyer.

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