Massachusetts Bail: Release, Conditions, and Review

Bail decides whether a person charged with a crime in Massachusetts waits for trial at home or in custody. It is set within hours of an arrest, often before the person has spoken to a lawyer, and the amount set at that first appearance frequently stands for months. This page explains what the law permits, what a judge may not do, and how a bail order is reviewed.

Bail in Massachusetts answers one question: whether release will reasonably assure that the person returns to court. It is not a measure of guilt, and it is not a way to hold someone who is thought to be dangerous. Detention on the ground of danger requires a separate proceeding, explained on the dangerousness hearing page.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and appears at arraignments and bail hearings in the District Courts, the Boston Municipal Court, and the Superior Courts of Greater Boston. Serpa Law Office can be reached at 617.936.0201.

The Presumption of Release on Personal Recognizance

The starting position is release without money. A justice, clerk or assistant clerk of the District Court, a bail commissioner, or a master in chancery must admit an arrested person to bail on personal recognizance without surety, unless that official determines that release will not reasonably assure the appearance of the person before the court. G.L. c. 276, § 58.

Personal recognizance means a written promise to appear, with no money posted. The presumption applies to most offenses. The statute carves out three situations: an offense punishable by death, a case in which the Commonwealth moves for a dangerousness hearing under § 58A, and any offense on which the Superior Court has issued an arrest warrant.

The practical significance of the presumption is that the burden is not on the accused to earn release. The official has to conclude that release will not assure appearance before any money is required at all.

What the Official Considers

The statute lists the factors. They include the nature and circumstances of the offense charged, the potential penalty, family ties, financial resources and the financial ability to give bail, employment record, history of mental illness, reputation, length of residence in the community, and any record of convictions. G.L. c. 276, § 58.

The list continues with matters bearing directly on appearance: illegal drug distribution or present drug dependency, flight to avoid prosecution, use of an alias or false identification, and any failure to appear at a prior court proceeding. Whether the person is already on bail, on probation, on parole, or on release pending sentence or appeal is also considered.

Two further factors apply in domestic cases. The official considers whether the alleged acts involve abuse as defined in G.L. c. 209A, § 1, or violation of a protective order, and whether the person has a history of such orders issued against him.

Every one of these factors is a place where a defense lawyer can supply information the court would not otherwise have. Employment, an address, a treatment program, and a clean record of appearances are worth presenting at the first appearance rather than at a later review.

Bail at the Police Station and Bail at Arraignment

Many arrests happen at night, and many people are released before ever seeing a judge. A bail commissioner or master in chancery can come to the police station, set the terms of release, and admit the person to bail out of court.

That service has a fee. The maximum fee for a person authorized to take bail or release on personal recognizance, where the arrest is for a misdemeanor or a felony, is $80. G.L. c. 262, § 24. Where bail is taken outside regular working hours, the trial court is responsible for paying the fee, and the fee is charged only to the trial court.

One category of case cannot be bailed at the station immediately. For a violation of a protective order, or for any act that would constitute abuse under G.L. c. 209A, § 1, or for a violation of G.L. c. 265, § 13M or § 15D, a person who has attained the age of 18 shall not be admitted to bail sooner than six hours after arrest, except by a judge in open court. G.L. c. 276, § 58.

Where the person is not released at the station, bail is addressed by a judge at arraignment. Arraignment and the stages that follow appear on the Massachusetts criminal process page.

Bail Is Not Preventive Detention

This is the rule most often misunderstood, and it is the one that most often produces relief. A judge may not consider the alleged dangerousness of a defendant in setting the amount of bail. Brangan v. Commonwealth, 477 Mass. 691 (2017).

Dangerousness may be considered in setting other conditions of release, such as a stay-away order or a curfew. It may not be converted into a dollar figure. Using an unattainable bail to hold a defendant because he is thought to be dangerous is improper. Id.

Where the Commonwealth wants a defendant held because he poses a danger, it must move under G.L. c. 276, § 58A and comply with the procedural requirements of that statute. Id. The statute itself says the same thing from the other direction: except in a case where danger has been determined under § 58A, bail shall be set no higher than what would reasonably assure appearance after taking financial resources into account. G.L. c. 276, § 58.

When Bail Is More Than the Person Can Pay

A judge must consider the financial resources of the defendant when setting bail, under G.L. c. 276, § 58 and, in the Superior Court, as a matter of common law under G.L. c. 276, § 57. Brangan v. Commonwealth, 477 Mass. 691 (2017); Querubin v. Commonwealth, 440 Mass. 108, 115 n.6 (2003); Commonwealth v. Torres, 441 Mass. 499, 504 (2004).

Consideration is not the same as a guarantee. An unaffordable bail is not unconstitutional by itself, and a judge is not required to set an amount the defendant can pay if other relevant considerations weigh more heavily than the ability to provide security. Where neither nonfinancial conditions nor an affordable amount would adequately assure appearance, a judge may set a higher amount, but no higher than necessary to assure appearance. Brangan, 477 Mass. 691.

What the law does require is an explanation. Where it appears that a defendant lacks the resources to post the amount set, so that indigency will likely result in long-term pretrial detention, the judge must provide written or orally recorded findings of fact and a statement of reasons for the bail decision. Id.

Those findings are worth asking for on the record. A bail set without them, in a case where the person plainly cannot pay, is the ordinary basis for review.

Bail Review in the Superior Court

A person aggrieved by the refusal of a District Court judge to release him on personal recognizance without surety may petition the Superior Court for review of the order. The District Court judge must immediately notify the person of the right to file that petition. G.L. c. 276, § 58.

The review is fast. The Superior Court hears the petition as speedily as practicable and, absent unusual circumstances, on the same day it is filed. The hearing may be continued to the next business day where the required records are not yet available. G.L. c. 276, § 58.

The Superior Court judge may order release on personal recognizance without surety, may make any other order of bail or recognizance, or may remand the person on the terms already set. The review is a fresh look at the same statutory standards rather than a search for an error below.

Time already served in custody matters at that hearing. Where a bail order comes before a judge for reconsideration or review and the defendant has been detained because he could not post the amount, the judge must consider the length of the pretrial detention and the equities of the case. Brangan, 477 Mass. 691.

Revocation of Release on a New Charge

A person released on one case who is then charged with another faces a separate risk. After a hearing at which the person has the right to counsel, the court on the new charge may find probable cause to believe he committed a crime during the period of release.

If the court then determines that release will seriously endanger any person or the community, and that detention is necessary to reasonably assure safety, it may revoke bail on the prior charge and order the person held without bail pending adjudication of that prior charge, for a period not to exceed sixty days. G.L. c. 276, § 58.

In making that determination the court considers the gravity, nature, and circumstances of the offenses charged, the record of convictions and whether they involve the use or threat of physical force, whether the person is on probation, parole, or other release, mental condition, and any illegal drug distribution or present drug dependency.

Bail, Probation Holds, and Outstanding Warrants

Posting bail on a new charge does not always result in release. A person already on probation may face a notice of surrender filed by the probation department on the same facts, and that proceeding sets its own conditions of custody. A person with an outstanding warrant in another court may be held on that warrant regardless of what happens on the new case.

These are separate matters with separate hearings, and each has to be addressed on its own terms. Checking for holds before money changes hands avoids a family posting bail on a case that was never the reason the person was being held.

What to do in the hours between an arrest and the first appearance is covered on the page about the first 24 hours after a Massachusetts arrest. Where the case is in the Boston Municipal Court, the sequence from arrest through disposition appears on the Boston Municipal Court stages page.

Criminal Defense Consultation

Attorney Serpa appears at arraignments, bail hearings, dangerousness hearings, and bail reviews. Serpa Law Office maintains offices at 20 Park Plaza, Suite 400A, Boston, and at 500 Victory Road, Suite 400A, Quincy.

Serpa Law Office can be reached at 617.936.0201.