Rules Governing Persons Authorized to Admit to Bail Out of Court
A. "Bail Magistrate" is a person authorized to admit to bail out of court, including a clerk-magistrate or assistant clerk of the Superior Court, District Court, or Boston Municipal Court who has registered with the Office of Bail Administration, a bail commissioner inside or outside of Suffolk County, or, if appointed by the Governor in accordance with G.L. c. 221, § 53 or G.L. c. 218, § 36, a master in chancery or a justice of the peace, respectively.
B. "Jurisdiction" refers to the territory within which a bail magistrate may set or take bail or release on personal recognizance.
C. "Division" refers to the Brighton, Central, Charlestown, Dorchester, East Boston, Roxbury, South Boston, or West Roxbury Division of the Boston Municipal Court.
D. "Home Court" - with respect to bail commissioners, it refers to the district court or county listed in their commissions of appointment. With respect to Superior Court clerk-magistrates and assistant clerks, it refers to the superior courthouse in the county where their designated office is located. With respect to District or Boston Municipal Courts clerk-magistrates and assistant clerks, it refers to the district or division, respectively, listed in their commissions or the district or division to which they are regularly assigned.
E. "Professional Bondsman" refers to a person or agent for a corporation who acts as a bail or surety for a defendant in a criminal case and who has received, has been promised, or expects to receive a fee, pay, or reward for acting as bail or surety. Such person must be approved and registered as a professional bondsman by the Superior Court.
The Chief Justice of the Superior Court shall establish a Superior Court Committee on Bail for the purpose of appointing bail commissioners, drafting rules governing bail magistrates, overseeing the bail magistrates, and enforcing compliance by all bail magistrates with applicable statutes and rules.
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 whether to release a person on personal recognizance or bail, the bail magistrate shall consider the factors set forth in G.L. c. 276, § 58. Each decision shall be reached on the basis of all available information pertaining to the factors set forth in the statute.
These rules shall apply only to out of court releases by bail magistrates on personal recognizance or bail. They shall apply even when the setting of bail was done by another if the taking of bail is done by them.
Bail magistrates shall comply with all laws governing their activities, including the provisions set forth in these rules. Failure to comply with such laws or rules may result in the suspension or termination of the power of the bail magistrate to admit persons to bail.
All bail magistrates shall comply with any training and educational requirements established by the Office of Bail Administration.
Clerk-magistrates and assistant clerks of the Superior, District, and Boston Municipal Courts who admit persons to bail must register with the Office of Bail Administration on a form approved by the Superior Court before exercising the authority of a bail magistrate. Any of the above who fails to so register shall not be authorized to admit persons to bail.
Clerk-magistrates and assistant clerks of the Superior, District, and Boston Municipal Courts and bail commissioners employed by the court shall not permit their out of court bailing activities to interfere with their regular court duties or attendance in court.
While clerk-magistrates must maintain the proper functioning of their offices, they shall not unreasonably restrict or exclude an assistant clerk from participating in out of court bailing.
The jurisdiction of clerk-magistrates and assistant clerks of the Superior Court shall be limited to the county in which they are elected or appointed, respectively. They may admit to bail any person held within their county even when such person is held on charges outside of that county.
The jurisdiction of clerk-magistrates or assistant clerks of the District and Boston Municipal Courts to admit a person to bail shall be limited to the district or division, respectively, to which they are appointed. They may admit to bail any person held within their district or division even when such person is held on charges outside of that district or division.
The jurisdiction of bail commissioners to admit a person to bail shall be limited to the geographical area contained in their commission. They may admit to bail any person held within their geographical area even when such person is held on charges outside of that geographical area.
The jurisdiction of masters in chancery and justices of the peace to admit a person to bail shall be limited to the county or judicial district, respectively, to which they are appointed. They may admit to bail any person held within their county or judicial district even when such person is held on charges outside of that county or judicial district.
The jurisdiction of clerk-magistrates or assistant clerks of the District and Boston Municipal Courts may be extended to any other judicial district or division, respectively, by written permission of the Chief Justice of their court. A copy of the application for such permission shall be sent to the Office of Bail Administration by the applicant, and if approved, a copy of the permission shall be forwarded to the Office of Bail Administration by the Chief Justice of such court.
The jurisdiction of bail magistrates may be temporarily extended to any other judicial district or division by a Justice of the Superior Court upon notification by the Office of Bail Administration 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.
The fee charged by a bail magistrate is governed by G.L. c. 262, § 24. The statute provides that such fee shall be received only by the bail magistrate who goes to the place of detention and completes the release. Fee splitting arrangements are prohibited.
This rule does not prohibit the taking of bail or releasing on personal recognizance for less than the maximum fee or without charge. However, if a fee is charged, payment shall be made in advance of the release.
The bail magistrate shall release a person without charging a fee if circumstances justify the release and the person is not able to pay the fee.
Clerk-magistrates and assistant clerks of the Superior, District, and Boston Municipal Courts and bail commissioners employed by the court shall not receive any fee or compensation, in addition to their salaries, for releasing a prisoner on bail or on personal recognizance during regular court hours.
A bail magistrate shall not receive anything other than the statutory fee for admitting a person to bail.
Unless restricted by the Superior Court or the Chief Justice of the District or Boston Municipal Courts, all bail magistrates 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 to all calls for their services with reasonable promptness.
In order to effectuate the purposes of this rule and to provide prompt out of court bailing services to all jails and holding facilities in a jurisdiction, the Justices of the Superior Court Committee on Bail may prepare and implement a plan for such coverage. All bail magistrates authorized in a jurisdiction affected by such a plan shall comply with it.
The bail magistrate shall not unduly delay the release of a defendant for the purpose of stacking or combining multiple defendants for release at a police holding facility or jail.
A bail magistrate shall not respond to calls for their services from a professional bondsman, surety agent, or money lender. A bail magistrate may only respond to calls from a defendant, someone calling on the defendant's behalf, a defendant's attorney, or the authorities at a jail or facility holding the defendant.
A bail magistrate shall only administer an oath or affirmation if the affiant is physically present. An oath or affirmation shall not be administered by telephone.
A bail magistrate shall not delegate the authority to admit a defendant to bail to a police officer, jail official, professional bondsman, or any other person.
A bail magistrate shall perform the duties impartially, with dignity and in a manner that befits the performance of a judicial act.
A bail magistrate shall administer an oath to a defendant admitted to bail, and to each person accepted as surety, that such person will perform the requirements of his recognizance or bond.
Oaths administered in the course of admitting a defendant to bail shall be given with solemnity and dignity.
A bail magistrate must ensure that each defendant has his own recognizance. Two or more defendants cannot be joined in one recognizance, even if they are jointly charged with the same crime. Each recognizance must be accompanied by a separate affidavit.
A bail magistrate shall not 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 the surety offered is an agent of a surety company, the bail magistrate 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 the surety company in recognizance is properly authorized to do so; that the surety company will deal fairly with the defendant in all respects; and that there are no conditions indicating that the surety company is likely to lose interest in assuring a defendant's presence in court.
A bail magistrate shall verify that a professional bondsman has registered with the Superior Court, and that such bondsman has the necessary assets to satisfy his outstanding bail bond obligations.
A bail magistrate shall not accept as surety any professional bondsman if it appears that such bondsman's obligations as surety in criminal cases will be greater than the limit set by Rule 22 of the Superior Court's Rules Governing Professional Bondsmen (1991).
If the security offered is of the kind authorized by G.L. c. 276, § 79, a bail magistrate shall make careful inquiry as to the ownership of such property.
A bail magistrate shall not accept as surety any person who has previously been rejected as surety by any bail magistrate in the same proceeding.
A bail magistrate shall satisfy himself beyond a reasonable doubt that the person offered as surety is the person he claims to be.
The bail magistrate shall take all necessary steps to make certain that all persons admitted to bail and all sureties fully understand their obligations. This applies especially where such persons are not familiar with the English language. Bail magistrates must be equally certain that they understand the responses made by the persons admitted to bail or sureties under examination.
A bail magistrate shall not be a creditor of a defendant or a surety.
A bail magistrate shall not, directly or indirectly, provide substantive legal advice to a defendant whom he is admitting to bail as to any matter concerning the defendant's case. A bail magistrate may provide general procedural information to the defendant.
A bail magistrate shall not admit a person to bail 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 admitted such person to bail.
A bail magistrate shall not accept as surety any attorney or any such attorney's relative or employee if such attorney is directly or indirectly employed by the person being admitted to bail.
A bail magistrate shall not offer or give any gift, compensation, or reward to anyone for procuring or influencing the selection of a bail magistrate or for selecting any particular attorney or professional bondsman.
A bail magistrate is prohibited from taking or receiving any gift, commission, pay, or reward, tangible or intangible, from any person who lends money or offers bonds, bank books, or other securities to a person in custody or to any other person for the benefit of the defendant for use in depositing bail or security..
A bail magistrate is prohibited from procuring or recommending a particular professional bondsman or a person to lend the defendant money or property.
A bail magistrate is prohibited from referring a defendant to any attorney, a firm of attorneys, or other advisor, nor shall he, directly or indirectly, contact any such person on a defendant's behalf.
A bail magistrate shall not, directly or indirectly, lend or procure the lending of money, bonds, bank books, or other securities to a defendant or to any person for the benefit of the defendant for use in depositing as bail or security with himself or any other bail magistrate, or for use in paying, rewarding, or giving security to any professional bondsman, attorney, or other advisor.
A bail magistrate who releases an individual in custody on personal recognizance or on bail shall advise him 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 $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 $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.
All bail magistrates shall maintain a dedicated checking account with the bail magistrate's name and the title "Bail Magistrate" listed on numbered checks. It shall be used exclusively for depositing and transferring bail funds, and must be of a type where monthly statements include a page or pages showing copies of cancelled checks. A bail magistrate is prohibited from commingling personal funds with bail funds collected and deposited into the dedicated account. A bail magistrate may use personal funds to pay required bank fees. All bail funds not delivered to a court the following day shall be deposited into the dedicated checking account at the earliest feasible time. Bail funds to be delivered to courts outside of the bail magistrate's home court must be transferred using a check from the dedicated bail account and shall include on the check's memo line the defendant's name and docket number if available.
No later than five days after the dedicated bail account has been opened, the bail magistrate shall notify the Office of Bail Administration in writing of the name of the bank and the account number. A complete and accurate written register of account activity must be maintained at all times. The bail magistrate shall forward to the Office of Bail Administration copies of monthly statements from the dedicated bail account within seven days of receipt.
Separate checks must be used for each recognizance document transferred.
A bail magistrate may accept bail 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 only to the bail magistrate authorizing the release.
The bail magistrate shall deliver all recognizances, certificates (affidavits) of sureties, other necessary documents, and all money, bank books, bonds and other security deposited with the bail magistrate to the clerk-magistrates' offices of the appropriate courts within the time frames established by this rule.
If the defendant is required to appear at the bail magistrate's home court, the bail magistrate shall deliver the recognizance, bail funds, and all other related items to the court no later than 8:30 a.m. on the next court day.
If the defendant is required to appear at a court outside the bail magistrate's home court, the bail magistrate shall deliver the recognizance, bail funds, and all other related items to the court by 4:30 p.m. on the third business day after the day on which the release was authorized. In addition, the bail magistrate must send by facsimile transmission or other electronic means a copy of the recognizance form to the appropriate court within 24 hours of the release. This responsibility may be satisfied where the jail or police authorities fax the recognizance, but the ultimate responsibility remains with the bail magistrate.
All certificates (affidavits) of sureties required by G.L. c. 276, § 61, and any amendments thereof that may be made, shall comply with all requirements of the statute. All sureties shall answer the following questions under an oath administered by the bail magistrate:
"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?"
"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 indicate 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 surety, pursuant to G.L. c. 276 § 61, must complete an inventory of his net worth, including a full and detailed description of all personal and real property. A bail magistrate shall make careful inquiry as to the surety's ownership of such property. For example:
A. Motor vehicles, full information as to:
(a) mortgages, liens, and other encumbrances;
(b) engine number;
(c) make, type, mileage, and year of manufacture;
(d) nature of use being made of it;
(e) location of garage where it is usually kept; and
(f) assessed value, if any;
B. Shares of capital stock of corporations, full information as to:
(a) exact corporate name of corporation;
(b) name of state of incorporation;
(c) class of stock, whether common or preferred;
(d) par value of each share of stock;
(e) market value of the stock and whether listed on any stock exchange. If not listed, state where there is a market for the stock;
(f) whether or not the stock stands in the surety's name on the books of the corporation. If not in the surety's name, in whose name;
(g) whether or not the stock is subject to any existing pledge, mortgage, or other lien and, if it is, for how much and to whom and the nature of the obligation for which it is security; and
(h) whether or not dividends have been regularly paid on the stock and if so, how much in each of the last three years.
A bail magistrate shall submit a report on forms approved by the Superior Court, to the Office of Bail Administration by the second Monday of the month accounting for the total number of releases, i.e. cash bail releases, releases on personal recognizance, and releases for money owed to a court, that were authorized during the prior calendar month. Such report shall also include the totals of cash bail, bail fees, and other funds collected. The Superior Court may at any time amend such forms to require that additional information be reported.
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.
All bail magistrates on active status shall submit a report each month even if no releases have been authorized during that reporting period.
A bail magistrate may request to be placed on inactive status as a bail magistrate by submitting a written request for inactive status with the Office of Bail Administration. A bail magistrate on inactive status shall not be authorized to admit anyone to bail out of court. The Office of Bail Administration shall notify all police holding facilities and jails within a bail magistrate's jurisdiction of his inactive status.
A bail magistrate on inactive status may return to active status by submitting a written request to the Office of Bail Administration. A bail magistrate's inactive status will be reactivated upon acknowledgment in writing by the Office of Bail Administration. The Office of Bail Administration may require a bail magistrate to participate in training sessions before being returned to active status.
Effective July 1, 2014