By Peter Elikann

Bail is not supposed to be a punishment. After all, people are presumed to be innocent until they are convicted. Yet if an arrested person is held on bail that is too high for them to make, they could be held in jail pretrial for many months and, often, much more than a year. If one is innocent, they are, essentially, being punished until their trial date. This is why a good attorney can give you your best opportunity to stay out of jail at least until you’ve exercised your right to trial either having you put up no bail at all or a minimal bail that you can afford.

Since it is not supposed to be a punishment, the main purpose of bail is to ensure that you will continue to return to court and not be a risk of flight. Here in Massachusetts, unlike many other states, at the end of the case, whether you win or lose, you will get back the entire amount of bail minus a $40 fee which is required in certain cases. For example, if you are bailed out for the amount of $5,040.00, when the case is completed and you have always showed up, you will get $5,000.00 returned.

The way it works in Massachusetts is that, when you are arrested, a bail commissioner will come to the police station and determine whether bail is to be set. Most times, no bail is required and only the $40 bail commissioner fee must be paid. This is known as being released on your own personal recognizance. You are then given a piece of paper noting when you are to appear in court for your arraignment. It is usually the next time the court is in session. Since court is in session Monday through Friday yet closed weekends, you usually must come to court the next day unless you have been arrested during a weekend and then you will have to wait until Monday. However, if you are arrested early enough in the day, you might have an opportunity to get to court later that same day.

If bail is set and it is too high an amount for you to make, then when you are brought to court, you have an opportunity to make an argument to the judge on why you should not be required to post any bail or, in the alternative, to have the bail request lowered to an amount you can afford.

The judge, in determining whether the accused is a risk of flight, must consider a variety of factors:

Does the accused person have a history of previous criminal charges?

  • If the person does have a previous criminal history, do they have a history of defaults? Defaults are recorded when a person does not show up in court when they are supposed to.
  • Does the person have strong ties to the community so that they would not want to become a fugitive from the area? Ties might include family, a job with a consistent employment record, a home, and perhaps having lived a very long-time in the area with many friends and a history of community involvement. Such a person is deemed more likely to appear than, let’s say, someone who doesn’t live or work in Massachusetts and was just briefly passing through the state when they were alleged to have committed a crime.
  • Is the accused person already on probation or parole at this time on another case?
  • Is the accused person currently out on bail on another pending charge?
  • What is the nature of the charge and is there a potential very heavy penalty for that particular offense? Defendants are more likely to flee if it is a very serious offense and they are facing a huge penalty. That is why, if someone is facing an extremely serious charge such as murder, they likely might not be granted parole at all.
  • Do they have a history of using aliases and false identification?
  • Are there any current restraining orders in effect against the accused?
  • Is there a history of mental illness or substance abuse?

If you are released on bail or without bail on your own personal recognizance, the judge can set conditions of release. These might include wearing a GPS monitor so that your movements can be tracked; getting substance abuse or mental health treatment; a stay-away or no-order where you must stay away from a particular location or person or not contact someone; must be subject to random drug or alcohol tests; are limited to where you might travel; must hand in your passport; surrender your firearms; have a curfew where you must remain at home during certain hours; and even possibly remain in home confinement.

There are a number of reasons why it is helpful to your case to be released on bail beyond just everyone’s understandably obvious desire to be free and not confined. These include:

  1. You can maintain employment. Not only does everyone want to work to support their family, home and pay their legal bills, but, if the day comes when you are to be sentenced for the offense, there are circumstances where a judge might not want to incarcerate someone who is responsibly holding a job and possibly ruin their career.
  2. You have an opportunity to show the judge that a period of time has gone by that you have been crime-free. Sometimes if a case goes on for a long period of time before it is completed, your attorney can say to the judge that a couple of years have gone by where you have done everything right and now have a track record of living a better life and the court should not interrupt this by taking you out of the community and into jail.
  3. If you are not held in custody, you have a better opportunity to help with your defense. You can travel to your attorney’s office frequently to discuss the matter and plan a defense strategy, can help contact witnesses, raise money in case you need to hire witnesses and travel to the crime scene to point out important factors to your attorney.
  4. If not in custody, you will have greater opportunities to get counseling whether for substance abuse or mental health issues. In the case that you either plead to or are convicted for the offense, a judge will appreciate the fact that you have begun the positive process of addressing some of the issues that resulted in your being charged in the first place.

When one is released on bail or on personal recognizance by the judge, the judge will explain that, if during the period of your release, you get charged with a new offense, your bail can be revoked and you can be held for a period of months without bail.

If a bail is set that is too high for you to come up with, you can request a bail review with the Superior Court.

A perennial concern is that bail can be made by people with better financial resources while the poor may languish in their locked-up circumstances for even the relatively modest amounts of $100 or $200 bail that they just cannot come up with. However, the Massachusetts Bail Fund is an organization that may come up with the bail for amounts of $500 or less or, if the bail is above that, can donate if the family or friends can make up the difference. However, recent crime legislation and a recent court decision has attempted to make some correction to this inequitable situation. Judges must now give specific consideration to a defendant’s inability to make a bail. If a judge sets a bail that the accused clearly cannot afford, the judge must explain in writing the decision for setting it at an unattainable amount.

Have you just been arrested and need help with a bail hearing or a bail review if the bail has been set unaffordably high? If so, contact us today for a free legal consult.


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