When someone you love is arrested in Massachusetts, the first thing you want to know is simple: Can they come home, and what will it take? The answer is bail. Bail is not a fine. It is not punishment. And it does not mean anyone has decided the person is guilty. In an ordinary case, bail has one job: to make it reasonably likely that the person comes back to court.
At a Glance: Bail in Massachusetts
Magistrate or judge
a bail magistrate at night or on weekends; a judge at arraignment (§ 58)
Ability to pay counts
bail can't be higher than needed to get you back to court, after looking at what you can afford (§ 58; Brangan)
Up to 120 days
held without bail after a 58A dangerousness hearing in District Court (180 in Superior Court)
Up to 90 days
held after bail is revoked under § 58B for a new crime or a broken release condition
The law: G.L. c. 276, §§ 57, 58, 58A, 58B; G.L. c. 262, § 24
This guide walks through the first hours after an arrest, who decides bail, the three main release options, how judges pick a number, how to post cash bail, what happens to the money at the end, and what families can do right now.
From arrest to booking: the first hours
After an arrest, police usually bring the person to the station for booking. Booking is the paperwork step: officers take name and date of birth, fingerprints, and a photo, and they let the person make a phone call. Police may also try to ask questions about what happened. Anything said can be used later, so it is usually wise to wait and talk with a lawyer first. For more on this stage, see What Happens When You’re Arrested in Massachusetts.
If court is closed (nights, weekends, holidays), police call a bail magistrate, sometimes called a bail commissioner. This is a court official who decides only one thing that night: can the person be released before the next court day, and on what terms? The magistrate does not decide guilt.
Example: Mike is arrested in Medford on a Friday night for shoplifting. He has a job and no record. The bail magistrate comes to the station and releases him on his promise to appear in Somerville District Court on Monday. If Mike had been arrested Monday morning while court was open, police might simply have brought him straight to court instead.
Who sets bail: the magistrate first, then the judge
Think of it in two steps. Step one is the magistrate at the station, when court is closed. Step two is the arraignment, the person’s first appearance in front of a judge, where the charges are read and a lawyer can argue about release. (See What Happens at an Arraignment in Massachusetts?.)
The magistrate’s decision is temporary. At arraignment, the judge can keep it, lower or raise the bail, swap money for rules, or hear a prosecutor’s request to hold the person as dangerous. If the person could not post the magistrate’s bail, they are brought to the next court session so a judge can review it (G.L. c. 276, § 58).
Three ways to be released: personal recognizance, cash bail, and conditions
Massachusetts law starts from release on personal recognizance, meaning a promise to come back, with no money, unless the decision-maker finds a promise is not enough to make sure the person returns (§ 58). The main tools are:
- Personal recognizance: release on a promise to appear. No money. The person gets a warning about what happens if they miss court or get a new charge.
- Cash bail: a dollar amount that must be posted before release. The court holds the money as a guarantee. It is not a fee the state keeps if the person follows the rules.
- Conditions of release: rules the person must follow, with or without cash. Examples: stay away from a person or place, no contact, a curfew, drug testing, reporting to probation, or a GPS bracelet. See Conditions of Release in Massachusetts.
In many lower-level cases, the prosecutor does not ask for cash at all. When they do, a defense lawyer can argue for personal recognizance, a lower amount, or conditions instead of money.
How judges and magistrates decide
Under § 58, the person setting bail must look at whatever information they can reasonably get, including:
- What the charge is, the facts alleged, and the possible penalty
- Family ties, job, reputation, and how long the person has lived in the community
- Money: the person’s financial resources and ability to post bail
- Any history of mental illness and any prior convictions
- Drug dealing or current drug dependency
- Running from prosecution before, or using a fake name or ID
- Any past failure to appear in court (a default)
- Whether the person is already out on bail, probation, or parole in another case
- Whether the case involves domestic abuse or a violation of a protective order, and any history of those orders
No single factor decides the case. Two people charged with the same crime can get very different bail because their lives and records are different.
Example: Two people are charged with the same break-in. One has lived in Somerville for 20 years, works full time, and has never missed court. The other has three old defaults and no steady address. The first is likely to be released on a promise; the second may face cash bail or strict conditions.
Ability to pay: bail must be affordable unless that truly won’t work
Your finances are not an afterthought. Section 58 says that, outside of dangerousness cases, bail must be set no higher than what is reasonably needed to get the person back to court, after taking into account the person’s financial resources. The Supreme Judicial Court said the same thing in Brangan v. Commonwealth, 477 Mass. 691 (2017).
A judge may set a higher, unaffordable bail only if neither an amount the person can afford nor non-money conditions would be enough to make sure they come back. When unaffordable bail is likely to keep someone in jail for a long time just because they are poor, the judge must explain on the record (in writing or out loud) that money was considered, how the amount was figured, and why lower options won’t work.
High cash bail also cannot be used as a back-door way to hold someone the prosecutor thinks is dangerous. That concern belongs in a separate dangerousness hearing (see below).
Example: Maria earns $600 a week and supports two kids. If the judge sets $5,000 cash, she stays in jail. Her lawyer can show her pay stubs and bills and ask for $250 plus a curfew, explaining why that is enough to get her back to court.
What a surety is and how cash bail is posted
A surety is the person who puts up the cash bail for the defendant, usually a family member or friend. The surety is not buying freedom. The money is a guarantee that the defendant will show up. Massachusetts does not use commercial bail bondsmen, so in everyday practice the full cash amount must be posted, not a small nonrefundable percentage like you see on TV.
Cash bail can be posted:
- At the police station, with the bail magistrate, after hours
- At the clerk’s office in the courthouse, after a judge sets or keeps an amount
- Sometimes at the jail or house of correction where the person is being held
Accepted payment types vary by place. Magistrates may take cash, a bank or cashier’s check, or a money order. Court clerks often want a bank check rather than cash. Call ahead before you drive over with money, and bring a photo ID.
The bail magistrate’s fee. Older articles say $40 or $50. That is out of date. Under G.L. c. 262, § 24, the most a magistrate can charge for taking bail or releasing someone on personal recognizance is $80. For bail taken outside regular court hours, the law says that fee is charged to the Trial Court, not split with anyone else. Ask the lawyer if someone asks you for a fee you don’t understand.
If nobody can post the amount, the person stays in custody, usually at a county house of correction, until the bail is posted, lowered, or changed, or until the next court date when a lawyer can ask for review.
What happens to the bail money when the case ends
If the defendant went to every court date, the court usually returns the cash to the person who posted it (the defendant or the surety) after the case ends, whether by dismissal, plea, or trial. The money goes back to the poster of record, so keep your receipt and remember whose name is on it.
If the defendant misses court, the judge can order the bail forfeited, meaning the money may be lost. Unclaimed bail can eventually go to the state. The refund is not always same-day; ask the clerk or your lawyer how long it will take.
Example: A father posts $1,000 for his son. The son goes to every court date, and the case is dismissed. The father brings his receipt and ID to the clerk and gets the $1,000 back.
Dangerousness hearings (58A) are a different track
For certain charges, the prosecutor can ask to hold someone without bail because they are dangerous, not because they might skip court. That happens at a hearing under G.L. c. 276, § 58A. The judge can order detention only if they find, by clear and convincing evidence (a high level of proof), that no release conditions would reasonably keep another person or the community safe.
A person held after a 58A hearing generally cannot be kept more than 120 days in District Court or 180 days in Superior Court, not counting certain delays, before trial. For the full picture, read 58A Dangerousness Hearings in Massachusetts.
Bail review and changing bail later
Bail is not set in stone. A lawyer can ask the same court to revisit bail when new facts come up: a verified job, a stable address, a family member who will supervise, medical needs, or proof of limited money.
If a District Court judge refuses to release someone on personal recognizance, the person can ask the Superior Court to review that decision. Under § 58, the petition is heard as fast as practical, often the same day or the next business day. Bail in Superior Court cases is governed by § 57 together with § 58.
Revocation: new charges and broken conditions
Release comes with strings. There are two ways bail can be revoked (taken away):
- New charge (§ 58): If the person is charged with a new crime while out on an earlier case, the court can hold a hearing, revoke bail on the earlier case, and hold them for up to 60 days.
- Breaking release rules (§ 58B): If there is probable cause that the person committed a new crime, or clear and convincing evidence they broke another condition, and the judge finds no conditions will keep others safe or the person won’t follow the rules, the court can revoke release and hold them for up to 90 days.
Missing court is also serious. The judge can issue a default warrant (an order for arrest), forfeit posted bail, and set tougher bail next time. In some cases, willfully skipping court is its own crime; see Bail Jumping. If an emergency keeps you from court, call your lawyer and the court right away.
What a defense lawyer argues at arraignment
Good bail arguments come from preparation. Before the case is called, a lawyer gathers:
- Community ties: home address, family, job or school
- Court history: past appearances and the story behind any old defaults
- The charge: correcting overstatements in the police report, without trying the case
- Money: what the family can really post and who will be the surety
- Least restrictive option: specific conditions instead of unaffordable cash
- Process: objecting if cash bail is being used to avoid a 58A hearing
Practical tips for families
- Get the basics: where the person is held, whether a magistrate set bail, the charges, and the next court date and courthouse.
- Line up the money in the right form if cash bail is likely, confirm the payment type first, bring ID, and decide who will be the surety.
- Call a criminal defense lawyer early. The overnight decision is temporary; arraignment is the real chance to argue.
- Collect proof: lease or utility bill, pay stubs, school or work letters, caregiving duties.
- Don’t push your loved one to “explain everything” to police to get out faster. Getting released and defending the case are separate problems.
- Treat every condition as a court order from day one, especially no-contact and stay-away orders.
Frequently asked questions
Does bail mean the court thinks I’m guilty?
No. Bail is about making sure you come back to court. It is not a verdict.
If I can’t afford bail, will I stay in jail until trial?
Not automatically. Your lawyer can ask for a lower amount or conditions, show what you can afford, ask the judge to reconsider, or seek Superior Court review. If unaffordable bail would keep you locked up long-term, the judge must explain why on the record.
How much is the bail magistrate’s fee?
The legal maximum is $80 under G.L. c. 262, § 24. For bail taken after hours, the law charges that fee to the Trial Court.
Who gets the bail money back?
The person who posted it, as long as the defendant made every court date and the court did not order forfeiture.
Can the prosecutor ask for bail on a minor charge?
Yes, but they often don’t. When they do, your lawyer can argue for release on a promise or a lower amount.
Related posts
Questions about bail after an arrest or before arraignment?
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
The Law Office of William J. Barabino represents clients in Massachusetts District Court, Juvenile Court, and Superior Court matters from Medford and throughout the Commonwealth. Call 781-393-5900 to discuss bail, arraignment, or any stage of a criminal case.
Disclaimer
This article is for general educational purposes only and is not legal advice. Bail and release decisions depend on the facts of each case, the charging documents, the person’s record, and the court. Reading this post does not create an attorney-client relationship. If you need advice about a specific situation, contact the Law Office of William J. Barabino at 781-393-5900 or consult another licensed Massachusetts attorney.
