The Excessive Bail Clause of the

Eighth Amendment to the United States Constitution The Eighth Amendment (Amendment VIII) to the United States Constitution protects against imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the ...

prohibits excessive

bail Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required. In some countrie ...

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

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 omniprese ...

and the English

Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...

Origins

In England,

sheriff A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...

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: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...

passed a

statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...

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 The Petition of Right, passed on 7 June 1628, is an English constitutional document setting out specific individual protections against the state, reportedly of equal value to Magna Carta and the Bill of Rights 1689. It was part of a wider ...

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 The Habeas Corpus Act 1679 is an Act of Parliament in England (31 Cha. 2 c. 2) during the reign of King Charles II. It was passed by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of '' ...

. Thereafter, judges were compelled to set bail, but they often required impractical amounts. Finally, the

English Bill of Rights The Bill of Rights 1689 is an Act of the Parliament of England, which sets out certain basic civil rights and clarifies who would be next to inherit the Crown, and is seen as a crucial landmark in English constitutional law. It received Royal ...

(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 Bail in the United States refers to the practice of releasing suspects from custody before their hearing, on payment of bail, which is money or pledge of property to the court which may be refunded if suspects return to court for their trial. B ...

, 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 '' Schilb v. Kuebel'', 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 '' Murphy v. Hunt'', , the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights in '' McDonald v. Chicago'' (2010) footnote 12, citing ''Schilb''.

U.S. state law

Most U.S. states 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 artic ...

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

censure A censure is an expression of strong disapproval or harsh criticism. In parliamentary procedure, it is a debatable main motion that could be adopted by a majority vote. Among the forms that it can take are a stern rebuke by a legislature, a spi ...

d for "setting 'grossly excessive' bail and husshowing a 'severe attitude' toward witnesses and litigants", as the

Michigan Supreme Court The Michigan Supreme Court is the highest court in the U.S. state of Michigan. It is Michigan's court of last resort and consists of seven justices. The Court is located in the Michigan Hall of Justice at 925 Ottawa Street in Lansing, the sta ...

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 ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...

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 The Bronx Freedom Fund is a nonprofit bail fund located in the South Bronx. The first charitable bail organization in New York State, it provides bail assistance to indigent defendants facing pretrial detention for low-level and misdemeanor charg ...

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 are ...

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 ...

famously argued for lower bail in his trial concerning alleged

child sexual abuse Child sexual abuse (CSA), also called child molestation, is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include engaging in sexual activities with a child (whet ...

, 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

Congressional Research Service The Congressional Research Service (CRS) is a public policy research institute of the United States Congress. Operating within the Library of Congress, it works primarily and directly for members of Congress and their committees and staff on a ...

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