Massachusetts Bail Laws

1. Applicable Statutes.

A. M.G.L.A. 276 § 61B MASSACHUSETTS GENERAL LAWS ANNOTATED PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE II. PROCEEDINGS IN CRIMINAL CASES CHAPTER 276. SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST, EXAMINATION, COMMITMENT AND BAIL. PROBATION OFFICERS AND BOARD OF PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL.

B. MASSACHUSETTS RULES OF COURT RULES GOVERNING PERSONS AUTHORIZED TO TAKE BAIL RULE 1 – 40.

C. 1999 Massachusetts House Bill No. 1481, Massachusetts 183rd General Court -- 1999 Regular Session Introduced Version Date January 6, 1999  AN ACT RELATIVE TO BOUNTY HUNTERS. SO-CALLED

2. Licensing Requirements for Agents.

*** The MA statutes do not currently contain provisions for the licensing of bail agents for the recapture of principals, however legislation for such is pending. Currently the statutes do provide for the regulation of "professional bondsmen" by the State Superior Courts and also the Bail Administration as discussed in the provisions below. ***

A. See section #10 for pending legislation on "Bounty Hunters."

B. M.G.L.A. 276 § 61B MASSACHUSETTS GENERAL LAWS ANNOTATED PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE II. PROCEEDINGS IN CRIMINAL CASES CHAPTER 276. SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST, EXAMINATION, COMMITMENT AND BAIL. PROBATION OFFICERS AND BOARD OF PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL § 61B. Bond of professional bondsman; arrest bond certificates; conditions of acceptance; regulation

· No person proposing to become bail or surety in a criminal case for hire or reward, either received or to be received, shall be accepted as such unless he shall have been approved and registered as a professional bondsman by the superior court or a justice thereof.

· No person proposing to become bail or surety in a criminal case in any calendar year after having become bail or surety in criminal cases on five separate occasions in said year shall be accepted thereafter during said year as bail or surety unless he shall have been approved and registered as a professional bondsman as aforesaid.

· A person who has been accepted as bail or surety, contrary to the provisions of this section, shall nevertheless be liable on his obligation as such bail or surety.

· Such approval and registration may be revoked at any time by such court or a justice thereof, and shall be revoked in case such a bondsman fails for thirty days after demand to satisfy in full a judgment recovered under section seventy-four or a new judgment entered on review under section seventy- six. The district attorney or prosecuting officer obtaining any such judgment which is not satisfied in full as aforesaid shall, forthwith upon the expiration of such period of thirty days, notify in writing the chief justice of such court.

· All professional bondsmen shall be governed by rules which shall be established from time to time by the superior court.

· Any unregistered person receiving hire or reward for his services as bail or surety in any criminal case, and any unregistered person becoming bail or surety in any criminal case in any calendar year after having become bail or surety in criminal cases on five separate occasions in said year, and any professional bondsman violating any provision of the rules established hereunder for such bondsmen, shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both. The provisions of this section shall not apply to probation officers.

· A person shall be deemed to have become bail or surety on a separate occasion within the meaning of this section if he becomes such: (1) for a person in respect to a single offense; or (2) for a person in respect to two or more offenses wherefor he at one and the same time offers bail or surety, or in respect to two or more offenses committed at the same time or arising out of the same transaction or course of conduct wherefore he at different times offers bail or surety; or (3) for two or more persons at the same time offering bail or surety in respect to offenses committed jointly or in common course of conduct.

· Becoming bail or surety for the same person or persons in subsequent proceedings in connection with prosecution for the same offense or offenses shall not be deemed an additional occasion or occasions.

3. MASSACHUSETTS RULES OF COURT RULES GOVERNING PERSONSAUTHORIZED TO TAKE BAIL RULE 1 Definitions.

• 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, pay or reward for acting as bail or surety.

4. MASSACHUSETTS RULES OF COURT RULES GOVERNING PERSONS AUTHORIZED TO TAKE BAIL 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.

5. MASSACHUSETTS RULES OF COURT RULES GOVERNING PERSONS AUTHORIZED TO TAKE BAIL RULE 40

• Dictates that professional bondsmen must be registered with the Superior Court.

3. Notice of Forfeiture

1. MASSACHUSETTS GENERAL LAWS ANNOTATED PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE II. PROCEEDINGS IN CRIMINAL CASES CHAPTER 276. SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST, EXAMINATION, COMMITMENT AND BAIL. PROBATION OFFICERS AND BOARD OF PROBATION PROCEDURE ON INTERSTATE RENDITION § 20F. Forfeiture of bail

• If the accused is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond or undertaking, such court or justice, by proper order, shall declare the bond or undertaking forfeited and order his immediate arrest without warrant if he be within this commonwealth. Recovery may be had on such bonds or undertakings in the name of the commonwealth as in the case of other bonds or undertakings given by persons accused in criminal proceedings within this commonwealth.

2. (Cross-reference from the section above to this section) MA ST 276 § 80 S 80.  Forfeiture of deposit on default; sale of bonds; collection on bank books; payments to state treasurer 0MAT.

• At any time after default of the defendant, the court may order forfeited the money, bonds or bank books deposited at the time of the recognizance and the court or clerk of the court with whom the deposit was made shall thereupon pay to the state treasurer any money so deposited. The clerk of the court shall immediately proceed to sell any bonds so deposited either at public or private sale, and shall forthwith pay the proceeds thereof, after deducting all expenses connected with such sale, to the state treasurer and if bank books are so deposited, the said clerk shall collect the amount of bail from the depository, and pay the same, less the expense of collection, to the state treasurer.

4. Allotted Time between Forfeiture Declaration and Payment Due Date.

• No specific MA statutes deal with this issue at this time.

5. Forfeiture Defenses.

1. M.G.L.A. 276 § 61B MASSACHUSETTS GENERAL LAWS ANNOTATED PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE II. PROCEEDINGS IN CRIMINAL CASES CHAPTER 276. SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST, EXAMINATION, COMMITMENT AND BAIL. PROBATION OFFICERS AND BOARD OF PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL § 68. Surrender of principal; notice; exoneration of bail; return of deposits; subsequent bail

• Bail in criminal cases may be exonerated at any time before default upon their recognizance by surrendering their principal into court or to the jailer in the county where the principal is held to appear, or by such voluntary surrender by the principal himself, and in either event, in all cases where bank books, money or bonds are deposited by the surety, the court shall thereupon order the bank books, money or bonds so deposited to be returned to the surety or his order, and to be reassigned to the person entitled thereto. They shall deliver to the jailer their principal, with a certified copy of the recognizance, and he shall be received and detained by the jailer, but may again be bailed in the same manner as if committed for not finding sureties to recognize for him, provided that the surety making the surrender shall not be accepted as bail if the person surrendered shall again be bailed. The jailer shall forthwith notify the clerk or justice of the court where the proceeding is pending of such surrender.

2. § 76. Review and rehearing of case after judgment on recognizance

• A court which has rendered judgment on a recognizance may, upon petition of any person interested, stating the ground relied upon and filed in said court, grant a review and a rehearing of the case, upon the surrender or recaption of the prisoner who was released, or for any sufficient cause which has occurred or been ascertained by the person interested after the rendition of such judgment, or at such time as not to have afforded opportunity for presenting the same in evidence.

6. Remission.

1. M.G.L.A. 276 § 61B MASSACHUSETTS GENERAL LAWS ANNOTATED PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE II. PROCEEDINGS IN CRIMINAL CASES CHAPTER 276. SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST, EXAMINATION, COMMITMENT AND BAIL. PROBATION OFFICERS AND BOARD OF PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL§ 74. Judgment for whole or part of penalty

• If the penalty of a recognizance of a party or witness in a criminal prosecution is adjudged forfeited, the court may render judgment, upon such terms as it may order, against the principal or surety, or both, for the whole of the penalty with interest, or, in its discretion, for a part thereof, upon the filing in the case of a certificate of the district attorney or prosecuting officer stating that the interests of justice would be furthered thereby and setting forth specifically the reasons therefor; and no person shall, on behalf of the commonwealth, accept in satisfaction of any such judgment or any new judgment entered on review under section seventy-six any sum less than the full amount thereof.

7. Bail Agent’s Arrest Authority.

*** The fact that this section provides for and discusses an "arrest bond certificate" seems to imply arrest authority. See also the pending legislation on "bounty hunters" in section #10, which discusses "recapture."

1. M.G.L.A. 276 § 61B MASSACHUSETTS GENERAL LAWS ANNOTATED PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE II. PROCEEDINGS IN CRIMINAL CASES CHAPTER 276. SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST, EXAMINATION, COMMITMENT AND BAIL. PROBATION OFFICERS AND BOARD OF PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL § 61B. Bond of professional bondsman; arrest bond certificates; conditions of acceptance; regulation

• As used in this section, "guaranteed arrest bond certificate" shall mean a printed card or other certificate issued by a licensed automobile association or travel club to any of its members, which is signed by the member and contains a printed statement that such automobile association or travel club and a surety company licensed to do business shall, in the event of the failure of such person to appear in court at the time set for appearance, pay any fine or forfeiture imposed upon such person in an amount not to exceed five hundred dollars.

8. Other Noteworthy Provisions.

1. M.G.L.A. 276 § 61B MASSACHUSETTS GENERAL LAWS ANNOTATED PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE II. PROCEEDINGS IN CRIMINAL CASES CHAPTER 276. SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST, EXAMINATION, COMMITMENT AND BAIL. PROBATION OFFICERS AND BOARD OF PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL § 71. Default on recognizance

• If a person under recognizance to appear and answer or to prosecute an appeal in a criminal case fails to appear according to his recognizance, and if a person under recognizance to testify in a criminal prosecution fails to perform the condition of his recognizance, his default shall be recorded, his obligation and that of his sureties forfeited, and process issued against them or such of them as the prosecuting officer directs; but in such suit no costs shall be taxed for travel. No such process shall issue in cases where bank books, bonds or money have been deposited at the time of such recognizance.

2. § 78. Proceedings if former judgment diminished, etc.; costs

• If the court finds that a part of the judgment has been actually paid to or for the commonwealth upon the recognizance or judgment and orders the judgment to be reversed or entered for a less amount than has been so actually paid, it may order the amount of the difference between the payment and the new judgment to be repaid to the person who made the payment or to his legal representatives. The state treasurer shall, upon presentation of a copy of the order certified by the clerk of the court, make said repayment. If, upon such petition, the review is not granted or the original judgment is not altered, the court may award reasonable costs against the petitioner.

3. MASSACHUSETTS RULES OF COURT RULES GOVERNING PERSONS AUTHORIZED TO TAKE BAIL 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.

4. MASSACHUSETTS RULES OF COURT RULES GOVERNING PERSONS AUTHORIZED TO TAKE BAIL 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.

9. Noteworthy State Appellate Decisions.

1. Com. v. Wilkinson

415 Mass. 402, 613 N.E.2d 914

Mass.

Jun 03, 1993

• Agent of Oklahoma bail bondsman was indicted for kidnapping and for assault with a deadly weapon, arising from his apprehension of fugitive in the Commonwealth and the removal of fugitive to Oklahoma. The Commonwealth filed pretrial motion to preclude defendant from raising affirmative defense of "lawful authority" at trial and further requested that jury be instructed on requirements of the Uniform Criminal Extradition Act. The Superior Court, Plymouth County, Cortland A. Mathers, J., granted Commonwealth's motion and reported questions of law to the Appeals Court. Defendant applied for direct appellate review which was granted. The Supreme Judicial Court, Lynch, J., held that: (1) the Uniform Criminal Extradition Act has abrogated common-law right of foreign bondsmen to seize a fugitive within the Commonwealth without resort to the legal system for surrender in another state; (2) foreign bondsman seeking to apprehend fugitive located in Massachusetts and remove him to any other jurisdiction must first comply with provisions of the Act; and (3) decision could not be applied retroactively to defendant, and thus he could offer as defense to charges pending against him that he possessed lawful authority to remove fugitive from the Commonwealth without complying with the Act. Reversed and remanded.

B. Com. v. Stuyvesant Ins. Co.

366 Mass. 611, 321 N.E.2d 811

Mass.

Jan 10, 1975

• Commonwealth brought seven actions against surety on defaulted bail bonds. The Superior Court, Worcester County, Meagher, J., found for the Commonwealth in the full face amount of the bonds of $7,000 and the surety filed a consolidated bill of exceptions. The Supreme Judicial Court, Tauro, C. J., held that the Commonwealth breaches its contract with a surety by interfering with the surety's custody of bail bond principal and that where trial judge, after removing default for prior nonappearance, remanded the principal to jail to await arrival of surety's agent, he breached the Commonwealth's contract on the bonds and, in the absence of the surety's agent's acquiescence in court's attempt to continue bail or to create a new bail contract, the surety was not liable for the principal's subsequent nonappearance.  Exceptions sustained.

C. Com. v. Tsouprakakis

(1929) 166 N.E. 855, 267 Mass. 496.

• Person who at same moment becomes bail for several defendants becomes bail on more than one "separate occasion" within statute relative to registration of professional bondsman.

D. Reed v. Police Court of Lowell

(1899) 52 N.E. 633, 172 Mass. 427.

• Where, after default on recognizance to police court and judgment forfeiting bail, prisoner was recaptured, waived examination and was committed for trial before superior court, by which he was convicted, judgment of forfeiture was not nullified.

10. Bounty Hunter Provisions.

· 1999 Massachusetts House Bill No. 1481, Massachusetts 183rd General Court -- 1999 Regular Session  Introduced Version Date January 6, 1999 AN ACT RELATIVE TO BOUNTY HUNTERS. SO-CALLED

· TEXT:  Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:  Chapter 276 of the General Laws is hereby amended by inserting after section 82A the following section: -

· Section 82B. Any person engaged in the business of the recapturing of prisoners released on bail who have defaulted shall register with the Department of Public Safety prior to undertaking any such activity in the Commonwealth. In each and every case where such person undertakes the recapture of such defaulted prisoner he shall notify the local police department and request its assistance prior to such undertaking. Such defaulted prisoner shall be afforded all the constitutional and statutory rights he would be entitled to if arrested by a police officer. 1999 MA H.B. 1481 (SN)

· (See Also 9.A. above.)