When a person is arraigned on criminal charges (arraignment means the first court appearance, at which the defendant is told about what the criminal charges are against them, and then asked if they want to represent themselves or rather want a lawyer to represent them), the matter of bail is always on the table.  If the defendant has little or no criminal history, and/or the charges are minor in nature, then typically the court will release the defendant on their own “recognizance,” which is a fancy way of saying that they will be released in exchange for their promise to return to court for all future scheduled hearings.  Sometimes, a defendant may be released on his or her recognizance even if they have a fairly bad record, if they have no prior history of failing to appear for court, and if they live and work nearby, and are therefore clearly not a flight risk.

But often, the prosecutor will ask the court to order some bail to be posted, and the court will do so if there is history of defaults or other indications that the defendant poses a risk of not showing up for court in the future.  In the District Courts in Massachusetts, typical bail amounts are $500, $1,000, $2,500, and $5,000, depending on the flight risk and seriousness of charges.

Technically, only risk of flight/default is an allowed bail consideration, but it’s no secret among lawyers that judges also take into account the charges, the potential danger to a victim of the defendant if he or she is released, and (especially recently) whether the defendant is opiate addicted and therefore seen as likely to use opiates once released.  See Querubin v. Commonwealth, 440 Mass. 108, 113 (2003) (“[t]he essential purpose of bail is to secure the presence of a defendant at trial to ensure that, if the defendant is guilty, justice will be served”).

In any event, if the court does order bail, then the defendant must have a friend or family member (or sometimes employer, roommate, etc.) post the bail before they can be released.  There are no bail bondsmen in Massachusetts, so cash is the only option.

Pursuant to Massachusetts General Laws c. 276, § 71, if a defendant fails to show for a scheduled hearing, including but not limited to trial, then the bail money that was posted on his or her behalf is forfeited to the court.  Conversely, if the defendant shows up every time, then when the case ends, the person who posted the bail (called the “surety”) gets his or her money back.  For the purposes of this discussion, “when the case ends” means when the defendant either pleads out or is convicted, or the case concludes with a dismissal or acquittal.  If the defendant ends up on, e.g., one year of probation, then the surety gets his or her money back at the beginning of the probation, not at the end.  The same rule applies if a jail sentence is imposed.

The 2017 Massachusetts Appeals Court case of Com. v. Unitt addressed the instance whereby the family members of defendants posted the required bail, and the defendants in fact showed up for all of their court hearings.  At the end of the case, there was restitution owed by the defendants to the victims, and the court ordered that the bail money posted by the family members would not returned to them, but would instead be given to the victims of the defendants.

On appeal, the Appeals Court held that, unless there was sufficient evidence that the money posted by the family members was in actuality the defendants’ money, then the court could not order that the bail money be given to the victims.  That is, if a person (surety) posts bail for a defendant, and if the defendant shows up for all hearings, i.e., does not default, then the bail money MUST be returned to the person who posted it.  No matter how much the court might want to help the victims by making the bail money available to them, the law does not allow for that.

Kevin D. Quinlan

(508) 723-6384

Uxbridge, Worcester County, Massachusetts

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