Bail is a type of payment—or the pledge to make a payment—in exchange for being released from custody. The defendant is temporarily released, but agrees to return to court when ordered to do so. As long as the defendant shows up at court as agreed, bail money is returned once the trial has concluded. If, however, the defendant does not return to court, the bail money is forfeited and criminal charges for failure to appear may apply.
Bail is not required in all cases. For minor offenses, the defendant may be summoned to court without the need to post bail. Basically, bail is an incentive to appear in court. If the prosecution is concerned that the defendant is a flight risk, bail will almost certainly be set. Further, bail amounts generally reflect the severity of the crime. A Boston criminal defense attorney can help you determine how to proceed if you have been charged with a crime.
The bail system is increasingly under scrutiny because it may prevent innocent people from getting out of jail due to their inability to afford bail. In fact, the Department of Justice has remarked that it is unconstitutional for poor people to be imprisoned simply because they cannot afford their bail. That being said, bail may also prevent dangerous criminals from being released into the general public as they await trial. In addition to these two extremes, there exists everything in between. If you think your bail is too high, can you get a judge to lower it?
How are Bail Amounts Set?
In MA, the bail magistrate sets bail. To do this, the bail magistrate considers the type and severity of the crime, along with the potential sentence the defendant is facing. The following factors will also be considered when setting bail:
- Is the defendant a flight risk?
- Does the defendant have a criminal record?
- Has the defendant failed to show up for court in the past?
- Is the defendant on probation or parole?
- Does the defendant have ties to the community?
- Is the defendant employed?
- Does the case involve domestic violence, and if so, would the defendant’s release put the victim at risk?
Of course, many of the above factors are subjective. For example, your bail could be set high because you don’t have ties to the community and you are currently unemployed. Two strikes. If, however, you can show that you are actively seeking employment, and you moved to this community because the climate is favorable for a heath condition from which you suffer, these strikes may become less significant in the judge’s eyes. If you can provide evidence to convince the judge that you are not a flight risk, you may be able to see a reduction in bail.
You may also be able to get some relief in the form of the Eighth Amendment to the Constitution, which prohibits “excessive bail.” If you can show that the amount of your bail is excessive, based on what you can afford, the judge may lower it. Once the initial bail is set, you may have to request a second hearing to challenge the amount. A MA defense lawyer can help you protect your rights if you have been charged with a criminal offense. Continue reading