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Massachusetts Rules Governing Persons Authorized to Take Bail

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Rule 1

Definitions

A. Person authorized to take bail - A Clerk-Magistrate or Assistant Clerk of the Superior Court, a Clerk-Magistrate or Assistant Clerk of the District Court or Boston Municipal Court, a Bail Commissioner, inside or outside of Suffolk County, or a Master in Chancery is a "person authorized to take bail". A "person authorized to take bail" may set and take release on personal recognizance without sureties, or may set and take release on bailor may take bail set by another.

B. Division - The Brighton, Central, Charlestown, Dorchester, East Boston, Roxbury, South Boston or West Roxbury Division of the Boston Municipal Court.

C. Jurisdiction - Jurisdiction refers to the territory within which a "person authorized to take bail" may set or take bail.

D. Professional Bondsman - A professional bondsman is any person who becomes bail or surety for any defendant in the criminal process; whether it be as agent for any corporation, or person, surety agent or principal, who has received, been promised, or expects to receive a fee, payor reward for acting as bail or surety.

Rule 2

The purpose of setting terms for any pre-trial release is to assure the presence at court of the person released. Any person charged with an offense other than an offense punishable by death, or for any offense on which a warrant of arrest has been issued by the Superior Court, is required by law to be released on his personal recognizance pending trial unless the person setting the terms of release determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required. In making a determination as to what form of release to set, the following factors shall be considered: (1) The nature and circumstances of the offense charged, (2) The potential penalty the prisoner faces, (3) The prisoner's family ties, (4) His financial resources, (5) Employment record, (6) Any history of mental illness, (7) His reputation and length of residence in the community, (8) His record of convictions, if any, (9) Any illegal drug distribution or present drug dependency, (10) Any flight to avoid prosecution or fraudulent use of an alias or false identification, (11) Any failure to appear at any court proceeding to answer to an offense, (12) Whether the prisoner is on bail pending adjudication of a prior charge, (13) Whether the acts alleged involve abuse as defined in section one of chapter two hundred and nine A, or violation of a temporary or permanent order issued pursuant to sections eighteen or thirty-four B of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, sections three, four or five of chapter two hundred and nine A, or sections fifteen or twenty of chapter two hundred and nine C, whether the person has any history of orders issued against him pursuant to the aforesaid sections, (14) Whether he is on probation, parole or other release pending completion of a sentence for any conviction, (15) Whether he is on release pending sentence or appeal for any conviction.

Persons authorized to take bail shall recognize that their duties are quasi-judicial. Each decision to release on personal recognizance or set or take bail shall be reached on the basis of all available information pertaining to the above criteria.

Rule 3

These Rules shall apply only to out-of-court releases on personal recognizance without sureties or bail settings and bail takings performed by Clerk-Magistrates or Assistant Clerks of the Superior Court, Clerk-Magistrates or Assistant Clerks of the District Court and Boston Municipal Court, Masters in Chancery and Bail Commissioners. They shall apply even when the setting of bail was done by another if the taking of bail is done by them.

Rule 4

A failure to comply with any of these Rules or any part of the reporting requirements herein may result in a temporary or permanent suspension of the power to set or take bail or release on personal recognizance without sureties. Persons authorized to take bail will be held to know all provisions of law governing their activities including these Rules and shall strictly comply with such provisions.

Rule 5

Clerk-Magistrates and Assistant Clerks of the Superior, District, and Boston Municipal Courts and Masters in Chancery who set or take bail or release on personal recognizance without sureties must register with the Superior Court on a form approved by the Court. Any of the above who have not registered will not be allowed to exercise authority as a bail magistrate, and if they set or take bail or release on personal recognizance without sureties, they may be temporarily or permanently suspended.

Clerk-Magistrates and Assistant Clerks of the Superior, District, and Boston Municipal Courts shall not maintain a level of participation in the out-of-court bailing activity which jeopardizes their regular attendance at, or proper functioning of, the Clerk-Magistrate's Office during the hours that it is required to be open.

Clerk-Magistrates of the Superior, District, and Boston Municipal Courts shall not, consistent with the responsibility to maintain the proper functioning of their offices, unreasonably restrict or exclude any Assistant Clerk from participating in the out-of-court bailing activity in their jurisdiction.

Rule 6

The jurisdiction of Clerk-Magistrates or Assistant Clerks of the Superior Court to set or take release on personal recognizance without sureties or to set or take release on bail shall be limited to the county for which they are Clerk-Magistrates or Assistant Clerks. They may set or take release on personal recognizance without sureties or set or take release on bail for any defendant held within the territory of their county even when that defendant is held to answer charges in another county.

Rule 7

The jurisdiction of Clerk-Magistrates or Assistant Clerks of the District and Boston Municipal Courts to set or take release on personal recognizance without sureties or to set or take release on bail shall be limited to the district or division for which they are Clerk-Magistrates or Assistant Clerks. They may set or take release on personal recognizance without sureties or set or take release on bail for any defendant held within the territory of their district or division, even when that defendant is held to answer charges in another district or division.

Rule 8

The jurisdiction of Masters in Chancery to set or take release on personal recognizance without sureties or to set or take release on bail shall be within the county for which they are appointed to act as Masters in Chancery. They may set or take release on personal recognizance without sureties or set or take release on bail for any defendant held within the territory of their county, even when that defendant is being held to answer charges in another county.

Rule 9

The jurisdiction of Clerk-Magistrates or Assistant Clerks of the District Court, and Masters in Chancery may be extended to any other judicial district by written permission of the Chief Justice of the District Court. A copy of the application for such permission shall be sent to the Superior Court by the applicant, and a copy of such permission shall be sent to the Superior Court by the Chief Justice of the District Court.

The jurisdiction of Clerk-Magistrates or Assistant Clerks of the Boston Municipal Court may be extended to any other Boston division by written permission of the Chief Justice of the Boston Municipal Court. A copy of the application for such permission shall be sent to the Superior Court by the applicant, and a copy of such permission shall be sent to the Superior Court by the Chief Justice of the Boston Municipal Court.

Rule 10

The jurisdiction of persons authorized to take bail may be temporarily extended to any other judicial district or division by a Justice of the Superior Court upon notification by the Bail Administrator that emergency coverage is required. Such coverage authorizations shall be for a specific period of time, but may be extended in the same manner as originally authorized.

Rule 11

The jurisdiction of Bail Commissioners approved by the Superior Court to set or take release on personal recognizance without sureties or to set or take release on bail shall be limited to the geographical area contained in their papers of appointment. They may set or take release on personal recognizance without sureties or set or take release on bail for any defendant held within such geographical area, even when that defendant is being held to answer charges in another area.

Rule 12

The maximum fee to be charged by any person authorized to take bail or release on personal recognizance in the case of a person arrested for any misdemeanor or felony shall be $40, regardless of the number of offenses.

If, in addition to recognizing for a court within the territorial jurisdiction of the magistrate authorizing the release, the arrested person is being required to recognize for a court outside of such territorial jurisdiction, the person so authorized may charge an additional $5 for each such extraterritorial recognizance, but in no event shall the total fee for any release exceed $50.

This Rule does not prevent the taking of bail or releasing on personal recognizance for less than the maximum fee or without charge, but if a charge is to be made, payment shall be in advance.

Clerk-Magistrates and Assistant Clerks of the Superior, District, and Boston Municipal Courts shall not receive any fee or compensation, in addition to their salaries, for releasing a prisoner on bail or on personal recognizance without sureties during the hours when their offices are required to be open.

The person authorized to take bail who goes to the place of detention is the only person entitled to the compensation provided for in G. L. c. 262, §24, and fee splitting arrangements are prohibited.

If a prisoner is being held under circumstances justifying a release and is not able to provide the fee, the magistrate shall authorize the release without charge.

Rule 13

No person authorized to take bail in criminal cases shall receive from any source, in connection with the admitting to bail or releasing on personal recognizance, anything of value in excess of the statutory fee therefor.

Rule 14

Unless otherwise restricted by the Superior Court, the Chief Justice of the District or Boston Municipal Court, or their papers of appointment, all persons authorized to take bail are entitled to participate fairly in the out-of-court bailing activity in their jurisdiction so long as they are willing and able to respond with all reasonable promptness to calls for their services.

The Justices of the Superior Court Committee on Bail, in order to effectuate the purposes of this Rule, may prepare and implement a specific plan of coverage for all prisoner holding facilities in a jurisdiction which shall be complied with by all persons authorized to take bail who are registered or appointed there.

Rule 15

No person authorized to take bail shall respond to a call to set and take bail or to take bail by a Professional Bondsman, surety agent or money lender. He may respond only to calls from defendants, defendants' families, defendants' attorneys or the authorities holding the defendant in custody.

Rule 16

No person authorized to take bail shall administer by telephone, or otherwise than in the physical presence of the affiant, any oath or affirmation required in the course of taking bail or releasing on personal recognizance.

Rule 17

No person authorized to take bail shall delegate the setting or taking of bail or the setting or taking release on personal recognizance to a police officer, jail official, bondsman or anyone else.

Rule 18

Every person authorized to take bail shall perform that function impartially and in a dignified manner as befits the performance of a judicial act.

Rule 19

Each person released on personal recognizance without sureties or bail and each person who is accepted as surety shall take an oath given by the person authorized to take bail that he will perform the requirements of his recognizance or bond.

Oaths administered in the course of taking bail or releasing on personal recognizance without sureties shall be given with solemnity and dignity commensurate with the performance of a judicial function.

Rule 20

Each defendant must have his own recognizance. Two or more defendants shall not be joined in one recognizance, whether or not they are jointly charged with the commission of the same crime. Each recognizance must be accompanied by its own affidavit.

Rule 21

No person taking bail shall accept as surety a bondsman who has received, who has been promised or who expects to receive, pay or reward for acting as surety unless such proposed surety is at the time duly registered as a professional bondsman.

If a surety offered is a surety company, the person authorized to take bail shall, before accepting the surety, satisfy himself that the company is authorized to act as surety in criminal cases in the Commonwealth; that it is financially sound; that the agent purporting to bind it in recognizance is properly authorized to do so; that it will deal fairly with the principal in all respects and that there is no condition existing whereby it is likely to cease being interested in the due production in court of the body of the principal according to the tenor of the recognizance.

Rule 22

Persons authorized to take bail shall not assume that registration of professional bondsmen is a guarantee of sufficiency. Professional bondsmen are to be at least as closely questioned as any other person offered as surety and special attention must be paid, in the case of professional bondsmen, to the total amount of the recognizance in which each is surety.

Rule 23

No person authorized to take bail shall accept as surety any professional bondsman examination of whom shows his obligations as surety in criminal cases to be greater than the limit set by Rule 22 governing professional bondsmen.

Rule 24

Each person authorized to take bail, in each instance in which security as authorized by G. L. c. 276, §79 is offered as qualification for any persons seeking to become surety, shall make careful inquiry as to the ownership of such.

Rule 25

Except as provided in G. L. c. 276, §57 or otherwise provided by law, no person authorized to take bail shall accept as surety any person who has previously been offered as surety in the same proceeding to any person authorized to take bail in criminal cases and has been refused by such person.

Rule 26

Each person authorized to take bail shall satisfy himself beyond any reasonable doubt that the person offered as surety is the person he claims to be.

Rule 27

When a person offered as surety is unable to write his name and signs by his mark, such mark must be attested in writing by a witness who saw it made and who shall sign his name and write his address in attestation. When no other witness is available, such attestation may be made by the person authorized to take bail.

Rule 28

Persons authorized to take bail shall take all necessary steps to see to it that all persons offering themselves as principals or sureties understand fully the nature of the obligation into which they seek to enter. This applies especially where proposed principals or sureties are not familiar with the English language. Persons taking bail must be equally certain that they fully understand the answers made to them by proposed principals or sureties under examination. Where t he services of an interpreter are necessary the interpreter must first be sworn to do his work faithfully, impartially and with the best of his skill and ability.

Rule 29

Persons authorized to take bail shall not be or become creditors of persons seeking release or of persons tendering surety.

Rule 30

No person authorized to take bail shall at any time, directly or indirectly, advise any person for whom he sets bail or from whom he takes bail, or for whom he sets release on personal recognizance without sureties as to any matter concerning the conduct of his case.

Rule 31

No person authorized to take bail shall set or take bail or set release on personal recognizance without sureties in any proceeding in which he has acted or expects to act as counsel, nor shall he act as counsel in any proceeding in which he has at any time taken bail or released a person on personal recognizance.

Rule 32

No person authorized to take bail shall accept as surety any attorney at law or any relative or employee thereof in any proceeding in which such attorney at law is directly or indirectly employed.

Rule 33

No person authorized to take bail shall offer or give any gift, or pay any compensation or reward to anyone for procuring or influencing the selection of any person to set or take bail or release on personal recognizance without sureties or for selecting any particular attorney, or for selecting any particular bondsman, professional or otherwise.

Rule 34

No person authorized to take bail shall, directly or indirectly, take or receive any gift, commission, pay, or reward, tangible or intangible, from any person who lends money, or offers bonds, bank books or other securities to persons in custody or to any person for their benefit for use in depositing as bail-security with himself or with any other person authorized to take bail or for use in paying, rewarding or giving security to any professional bondsman or for paying, rewarding or giving security to any attorney or other advisor.

Rule 35

No person authorized to take bail shall, with or without compensation or reward or promise thereof, assist a person in custody by procuring or recommending a bondsman for him or a person to lend him money or property to be used in lieu of personal suretyship or by procuring or recommending an attorney.

No person authorized to take bail shall at any time, either before or after taking bail or releasing on personal recognizance, recommend or take any steps to make likely the employment by the defendant of any particular bondsman, professional or otherwise, or of any particular attorney or group or firm of attorneys, or of any particular advisor who is not an attorney.

Rule 36

No person authorized to take bail shall refer any defendant to any lawyer, nor shall he call any lawyer on any defendant's behalf.

Rule 37

No person authorized to take bail shall, directly or indirectly, lend or procure the lending of money, bonds, bankbooks or other securities to persons in custody or to any person for their benefit for use in depositing as bail-security with himself or with any other person authorized to take bail, or for use in paying, rewarding or giving security to any professional bondsman, or for paying, rewarding or giving security to any attorney or other advisor.

Rule 38

Persons authorized to take bail who release an individual in custody on personal recognizance without sureties or on bail shall advise him of the provision of G. L. c. 276, §82A, which provides that a person who fails to appear in court without sufficient excuse shall be punished by a fine of not more than ten thousand dollars ($10,000) or by imprisonment in a house of correction for not more than one year, or both, in the case of a misdemeanor, and by a fine of not more than fifty thousand dollars ($50,000) and imprisonment in a state prison for not more than five years, or a house of correction for not more than two and one-half years, or by fine and imprisonment, in the case of a felony.

Rule 39

Every person authorized to take bail must see to it that all recognizances certificates (affidavits) of sureties, other necessary documents, and all money, bank books and bonds and other security deposited with him are seasonably transmitted to and seasonably received by the Clerk-Magistrates' Offices of the appropriate courts.

Receipt shall note be considered seasonable where it occurs later than 9:00 A. M. of the day when the process on which on which the defendant was held in custody is returnable, or later than 8:30 A. M. of the day when the person who is held in custody on arrest without a warrant must first be taken before the court.

In no event shall transmittal and receipt by the appropriate court be accomplished later than 4:00 P. M. of the third court day after the day on which the release was authorized.

Bail may be accepted from a defendant or surety in the form of cash, a bank check, treasurer's or cashier's check, or U. S. Government money order made payable to the person authorized to take bail.

If a person authorized to take bail maintains a bank account for depositing and transferring bail funds to the appropriate courts, it shall be used exclusively for that purpose and the name of the bank, the account number and, within 10 days of receipt, copies of monthly statements shall be submitted to the Office of Bail Administration.

Rule 40

All certificates of sureties required by G. L. c. 276, §61, and any amendments thereof that may be made, shall comply strictly with all requirements of the statute. Such certificates shall also contain an answer under oath to the following questions:

"Have you received or been promised pay or reward for acting as surety in this case?"

"Do you expect to receive pay or reward or a promise of pay or reward for your becoming surety in this case?"

"How much pay or reward have you received or have you been promised or do you expect to receive?"

"Are you approved and registered with the Superior Court as a professional bondsman?"

(This question is to be answered whether or not the other answers of the surety disclose that he is acting for hire.)

"Have you become bail or surety in criminal cases on five separate occasions during the now current calendar year?"

The statute also requires that affidavits of sureties embrace personal property as well as real property. Therefore, where sureties present personal property as security, persons authorized to take bail shall examine the accompanying affidavits with particularity. For example:

A. Motor vehicles, full information as to:

B. Shares of capital stock of corporations, full information as to:

Rule 41

Each person authorized to take bail shall by the second Monday of each month make and submit to the Chief Justice of the Superior Court, in care of the Office of Bail Administration, a record as to each taking of bail or releasing on personal recognizance that was authorized during the prior calendar month.

The forms to be used for this purpose are the bail report cover sheet and the report page (yellow copy) from the recognizance form approved by the Court pursuant to G. L. c.276, §65. They are attached hereto and included by reference as part of these Rules.

If no releases have been authorized during any reporting period, a written statement to that effect shall be submitted within the required time.

2005.