The Excessive Bail Clause of the Eighth Amendment to the United States Constitution prohibits excessive bail set in pre-trial detention. If a judge posts excessive bail, the defendant's lawyer may make a motion in court to lower the bail or appeal directly to a higher court. The excessive bail provision of the Eighth Amendment to the United States Constitution is based on old English

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

and the English Bill of Rights.

Origins

In England,

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s originally determined whether to grant bail to criminal suspects. Because they tended to abuse their power,

Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...

passed a

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where bailable and non-bailable offenses were defined. The king's judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign's command. Eventually, the Petition of Right of 1628 asserted that the king did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impractical amounts. Finally, the English Bill of Rights (1689) held that "excessive bail ought not to be required". Nevertheless, the bill did not determine the distinction between bailable and non-bailable offenses.

Text

The Eighth Amendment provides:

Interpretation

The Excessive Bail Clause currently governs only federal pre-trial detention.

Presence at trial

In '' Stack v. Boyle'', , the Court found that a defendant's bail cannot be set higher than an amount that is reasonably likely to ensure the defendant's presence at the trial. In ''Stack'', the Court found bail of $50,000 to be excessive, given the limited financial resources of the defendants and a lack of evidence that they were likely to flee before trial.

Preventive detention

Preventive detentions are when someone is denied bail because the court fears that if the accused is released they will be a danger to the community. Congress authorized preventive detention in the Bail Reform Act of 1984, and the Court upheld the Act in ''

United States v. Salerno ''United States v. Salerno'', 481 U.S. 739 (1987), was a United States Supreme Court decision that determined that the Bail Reform Act of 1984 was constitutional, which permitted the federal courts to detain an arrestee prior to trial if the govern ...

'', . The Court held that the only limitation imposed by the bail clause is that "the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil."

Incorporation

The incorporation status of the Excessive Bail Clause is unclear. In ''

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'', 404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." In ''

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'', , the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights in ''

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'' (2010) footnote 12, citing ''Schilb''.

U.S. state law

Most

U.S. states In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sover ...

have similar provisions for preventing excessive bail. For example, similar prohibitions are contained in the

Connecticut Constitution The Constitution of the State of Connecticut is the basic governing document of the U.S. state of Connecticut. It was approved by referendum on December 14, 1965, and proclaimed by the governor as adopted on December 30. It comprises 14 articl ...

and the

Constitution of Hawaii The Constitution of the State of Hawaii ( haw, Kumukānāwai o Hawaiʻi) refers to various legal documents throughout the history of the Hawaiian Islands that defined the fundamental principles of authority and governance within its sphere of juri ...

Georgia

In 2016, a Federal Court began to evaluate the " pre-set" bail system of Calhoun, Georgia. The involvement stems from a history of lacking consideration for the accused citizen's financial means while making a final bail determination. In 2017, Sally Yates became involved in the ongoing case.

Michigan

In Michigan, a judge or

justice Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...

may be censured for "setting 'grossly excessive' bail and

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showing a 'severe attitude' toward witnesses and litigants", as the Michigan Supreme Court did to a trial judge in 2008.

New Hampshire

New Hampshire New Hampshire is a U.S. state, state in the New England region of the northeastern United States. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Gulf of Maine to the east, and the Canadian province of Quebec t ...

, a writ of habeas corpus which is a summons to the court, may be used to change the amount of excessive bail; the bail must be "reasonable".

New York

New York has seen the development of organizations such as The Bronx Freedom Fund to aid in the release of accused individuals who primarily possess less than $1,000 and have a bond at $1,000 or greater.

Virginia

Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...

's Bill of Rights states: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion or rebellion, the public safety may require; and that the General Assembly shall not pass any bill of attainder, or any ex post facto law."

Notable cases

One example of a large bail requirement was a case in Texas where New York real estate heir Robert Durst received a bail of $3 billion. The Durst's lawyer appealed the bail to the Texas Court of Appeals. The court responded that "it could not find a case where bail was set, let alone upheld, at even 1 percent of any of the amounts against the millionaire, regardless of the underlying offense, wealth of the defendant, or any other circumstance." The court reduced bail to $450,000.

Michael Jackson Michael Joseph Jackson (August 29, 1958 – June 25, 2009) was an American singer, songwriter, dancer, and philanthropist. Dubbed the "King of Pop", he is regarded as one of the most significant cultural figures of the 20th century. Over a ...

famously argued for lower bail in his trial concerning alleged child sexual abuse, for which he eventually won the court case. Zachary Cruz (the brother of Nikolas Cruz, who is accused of killing 17 people at Stoneman Douglas High School in Parkland, Florida on February 14, 2018) was arrested on March 19, 2018 for trespassing on the campus of Stoneman Douglas High School. On March 20, 2018, a judge set his bond at $500,000 for the single misdemeanor offense. Although Zachary Cruz's attorney did not specifically reference the Excessive Bail clause, he argued that the bail was excessive, considering the fact that the bond for Criminal Trespass is typically $25.

References

External links

* ttp://www.angelfire.com/crazy4/texas/excessivebail.html A Law student's review of the law on Excessive Bail
ConSource website

Prepared by the

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