If you watch enough crime television shows, you undoubtedly are familiar with the term “bail.” The purpose of bail is quite simple – to ensure that a defendant will appear in court. Bail is typically money or some other form of property pledged to the court in exchange for a defendant’s temporary freedom, with the understanding that the defendant is to return for trial. In fact, if the defendant fails to return for a scheduled court appearance, a default warrant will be issued. As with an arrest warrant, the police are authorized to make an arrest on a default warrant.
Depending on the severity of the charges and other circumstances, the amount set for bail can vary greatly. Based on Massachusetts law, many people charged with an offense will be released on their personal recognizance, or without bail. However, if the offense is one punishable by life in prison, or the court believes that a pre-trial release will not adequately assure a person’s presence at a future court date, the judge may exercise his or her discretion in setting or denying bail. For example, defendants charged with murder and repeat felony offenders are often held without bail.
The determination of bail is made during a proceeding known as a bail hearing.THE BAIL HEARING PROCESS
At the bail hearing, the judge has the task of deciding on the amount of bail. The prosecutor will argue the reasons which he or she believes supports the amount of bail requested, with higher bail or no opportunity for bail requested for more serious crimes and lesser bail for lesser crimes. For example, charges that involve violence or illegal drugs typically warrant higher bail amounts. Higher amounts may also be requested for defendants with a history of failing to appear for court. A variety of other factors can also play a key role in whether to order bail and if so, the amount of bail that a judge deems appropriate. These include, but are not limited to:
The nature of the charges –charges of violence against other people (i.e. armed robbery, rape, kidnapping, assault) are more likely to increase a defendant’s bail. These types of charges are also more likely to disqualify a defendant from receiving bail altogether.
The defendant’s criminal history – a defendant with an extensive criminal history may be more likely to commit more crimes if he is able to gain his temporary freedom upon posting bail. Therefore, high bails are more likely to be set for defendants who have a propensity for committing crimes than for a first-time offender or someone whose crime is relatively minor.
The defendant’s ties to the community, including evidence of flight to avoid prosecution – if a defendant has significant ties to the community, such as the presence of a home, a family, and a job, he or she may be considered less of a flight risk than a defendant with little or no ties to the community. Larger bail amounts may be set for high flight risk defendants.
The defendant’s drug and/or alcohol abuse history – when the current charges are drug related, a defendant with prior drug charges is more likely to face higher bail than a defendant charged with a non-drug related offense.
Whether the defendant is already on probation or parole for a separate, prior offense – higher bail may also be more likely for a defendant charged with an offense who is already on probation or parole for a different offense
The burden is on the prosecution to prove that bail is appropriate for the defendant. However, the defendant’s attorney can present counter-arguments. For example, the attorney might present evidence that the defendant is well respected in the community, has a consistent employment history, has never been in trouble with the law prior to the current offense, and/or is the primary provider for his or her family. A successful defense attorney may be able to persuade the judge to set a very low bail or even release the defendant on his or her own personal recognizance, which essentially allows the defendant to be released without bail, upon the promise that he or she will return for the next court date.WHAT IF THE JUDGE SETS A BAIL THAT A DEFENDANT CANNOT PAY?
It does occur at times that a judge will set bail at an amount that seems unreasonably high for the circumstances. When this happens, it is possible to appeal the judge’s decision to a higher court in a judicial proceeding called a bail review. This court has the option of keeping the same bail amount set by the lower court, reducing that amount, or even increasing the amount. It is important to note, however, that the fact that a defendant cannot afford to post bail does not necessarily mean that the bail set by the judge was excessive. Therefore, it is critical to select a well-respected attorney who has experience not only with bail hearings, but who can also skillfully argue an appeal of bail.CHOOSE A KNOWLEDGEABLE BAIL HEARINGS ATTORNEY
Being arrested and charged with a crime can be a terrifying experience. It is often difficult to make a decision with a clear head while under the oppressing weight of the criminal justice system, but the decision to retain a skilled attorney for assistance with the bail hearing is one that should not be overlooked. It could be the single difference between temporary freedom and time spent in jail.
If you have been charged with a crime, it is critical that you consult a criminal defense attorney who has extensive experience in representing clients at bail hearings and who will aggressively argue on your behalf to obtain the best possible outcome. Not only is Stephen Neyman a skilled criminal defense attorney, but he also has a background in prosecution, and therefore is well-informed of the tactics needed to negotiate the best deal for his clients. Contact the Law Offices of Stephen Neyman at (617) 263-6800 for a free phone consultation. All consultations are confidential and protected by the attorney-client privilege.
Worcester District Court: Defendant Released from Jail After G.L. c. 276 Section 58A Dangerousness Hearing
Last weekend the police effectuated a stop of a car driving in Auburn, Massachusetts. Officers stated in their report that the defendant's license plate was not illuminated. After the stop officers observed ammunition on the floor of the vehicle and ordered the defendant to get out of the vehicle. He complied. Upon doing so officers saw a handgun in the car. The defendant was arrested and charged with carrying a firearm, G.L. c. 269 Section 10 and unlawful possession of ammunition, G.L. c. 269 Section 10. At arraignment the district attorney moved for detention pursuant to G.L. c. 276 Section 58A, the dangerousness provision of the Massachusetts bail statute. Our office was subsequently retained. Today, after a hearing our client was released.
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Roxbury District Court: Charges of Possession With Intent to Distribute Class B and Class C Drugs Dismissed Prior to Arraignment and Personal Recognizance on Remaining Charges
On February 8, 2017 a woman arranged to have a friend pick her up near downtown crossing in Boston, Massachusetts. The friend arrived with a man, the defendant who was driving a Honda. The woman entered the defendant's car with the understanding that she would be given a ride home. Instead, the woman was assaulted with a knife and robbed of money, clothing and prescription drugs. The man was later arrested and charged with kidnapping, armed robbery, assault and battery by means of a dangerous weapon, possession with intent to distribute drugs and more. Attorney Neyman was hired to represent the man. Today, after a lengthy bail hearing the defendant was released on his own recognizance. In addition, Attorney Neyman was able to get the drug charges dismissed prior to arraignment.
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Wrentham District Court: District Attorney's Motion for Bail Revocation Denied
The defendant is one of our clients charged with domestic assault and battery. He was placed on conditions of pretrial release that included wearing a GPS monitoring device, abstaining from the use of alcohol, alcohol screens, mandatory reporting and more. The defendant missed his screens on February 1st and February 3rd, failed to report to probation and refused to charge his GPS monitoring device. A probation warrant issued and the defendant was returned to court for a bail revocation hearing. The prosecutor asked for a revocation of bail which would require the defendant to remain in custody. Attorney Neyman convinced the judge not to revoke bail and to modify the release conditions in a more favorable manner.
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