DECEMBER 10, 2013
A clerk, assistant clerk or judge sets Massachusetts’s bail. When a clerk or assistant clerk is setting bail it is done following the person’s arrest, when they are being held at a police station or jail, and before the person’s arraignment on the pending criminal charges. Judges will set bail following the arraignment and usually after the assistant district attorney requests it. They can set bail without the request being made as well. Bail is meant to ensure that the defendant will show up for their future court appearances. The particular amount is set based on a number of factors, including their connection to the community, their criminal history, flight risk, the nature of the case, past defaults and the safety risk to the community. Courts will also look into any other current pending cases against the defendant.
The amount bail is set at can vary greatly. Bail can be as low as $50 or a judge can choose to hold someone without setting bail, which tends to happen in cases involving very violent crimes. A judge can also hold a defendant without bail if the crime has a considerable mandatory minimum sentence, especially if the defendant is not a US citizen. Bail orders are often appealed to the superior court if the defendant is unable to pay, and further appellate rights exist for bail that a defendant wants to challenge. However, these appellate rights are not used often and are rarely met with success.
In rare cases, a judge will set bail with certain conditions that are out of the ordinary but do not often get reversed. For instance, a judge could set bail and revoke a defendant’s right to use a cell phone, place the defendant under house arrest or require the defendant to wear an electronic monitoring device. In these cases, if conditions are not reversed a defendant must either accept them or chose to remain in jail until his or her trial.
Most of these conditions regarding bail come with sex crimes. Nearly all defendants who have been charged with committing a sex crime and can post bail are required to wear an electronic monitoring device. While out on bail, defendants are usually prohibited from being within a specified distance from schools, playgrounds and parks. This can be very difficult for defendants who live in large cities, such as Boston, as the distance is often as much as 500 feet. Because of this, once the defendant is released on bail our criminal defense lawyers work to ensure that the defendant is able to work and live in areas that could be a violation of these conditions.