Navigating the bail process can be overwhelming, especially in the hours and days immediately following an arrest. Understanding the process, including how bail is set, what the options are for paying and what the deciding factors are for setting bail, is critical to making informed decisions with your legal counsel. 

This month our blog is focusing on the components of bail in the Massachusetts legal system and how it could impact your legal case. Let’s examine some of the key components of the bail process so you can begin to comprehend the process from arraignment to completion of the bail agreement. 


What Is Bail? 

Bail is the temporary release of an accused person (defendant) as they await trial. Bail is usually a set amount of money and a list of restrictions imposed on the person as they prepare for trial. This is a conditional release with a promise to appear in court when required to do so whether that is a pre-trial hearing or the trial. 

Bail is not a punishment and does not indicate guilt or innocence. 

Who Sets Bail in Massachusetts? 

In the state of Massachusetts, bail is set by a bail magistrate. This person’s job is not to determine whether the accused is guilty or innocent but rather whether it is safe to release the person under set conditions until their court date. 

Bail may be denied under certain circumstances including if the person may be a flight risk, a danger to the community or self, have multiple or repeat offenses against them, and if they have not adhered to court dates in the past. 

pointing hand in a discussion at desk with handcuffs on desk

Types of Bail 

While most of us envision the traditional television scenes where a judge bangs the gavel and sets an amount for bail, there is quite a bit more to it than just setting an arbitrary number for each accused. 

In Massachusetts, a defendant can either be released on personal recognizance or will need to put up a cash bail to be released before the scheduled court date. The terminology “personal recognizance” means the court will release a defendant from jail on their word or promise to appear on their scheduled day and time in court. The setting of a cash bail means the court believes that the promise to return to the court will be more likely to be followed if a cash amount is set. 

Options For Paying Bail 

There are several options for “making” or paying bail should the magistrate determine that a cash bail is required before release can occur. 

Cash bail is the option where a certified check for the full amount is paid directly to the court. It is held by the court in an account until the court cases are completed. Court fees may be taken out from this amount. 

A surety bond involves a bail bondsman who will post a bond for the defendant and will receive a fee of the total amount of the bond paid. That fee is usually around 10%. This person or bail bondsman organization takes on all the risk of the accused not showing up for their court date. 

A property bond is a type of bail where the defendant uses real estate to pay bail. Usually, the court will put a lien on the property to ensure that the person shows up for the court case. 

Deciding Factors for Bail 

Not all people accused of a crime qualify for bail or can make bail. 

Some of the factors that are included in the decision on the part of the bail magistrate include: the person’s criminal history, prior defaults in not showing up for court, the severity of the alleged crime, whether the person is a flight risk, and ties they may or may not have to the community. Other factors that may be considered include whether they have family in the area as well as if they have been deemed to be a danger to the community or themselves. 

For more information on the bail process and how the Law Office of Patrick Conway can help you, contact us