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. Court bail may be offered to secure the conditional release of a defendant with the promise to appear in court when ...

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 Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

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 pri ...

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, the , which is common ...

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

statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

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 The Habeas Corpus Act 1679 ( 31 Cha. 2. c. 2) is an act of the Parliament of England passed 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 prerogati ...

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

English Bill of Rights The Bill of Rights 1689 (sometimes known as the Bill of Rights 1688) is an act of the Parliament of England that set out certain basic civil rights and changed the succession to the English Crown. It remains a crucial statute in English con ...

(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'', . 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 and the Constitution of Hawaii.

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 In its broadest sense, justice is the idea that individuals should be treated fairly. According to the ''Stanford Encyclopedia of Philosophy'', the most plausible candidate for a core definition comes from the ''Institutes (Justinian), Inst ...

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 sp ...

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 s ...

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 borders 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 U.S. state, state in the Southeastern United States, Southeastern and Mid-Atlantic (United States), Mid-Atlantic regions of the United States between the East Coast of the United States ...

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 Cultural impact of Michael Jackson, one of the most culturally significan ...

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 Human sexual activity, sexual activit ...

, for which he eventually won the court case. Zachary Cruz (the brother of

Nikolas Cruz Nikolas Jacob Cruz (born September 24, 1998) is an American mass murderer who perpetrated the Parkland high school shooting, where he shot and killed fourteen students and three staff members while injuring seventeen others on February 14, 2018 ...

, who was convicted of killing 17 people at Marjory Stoneman Douglas High School in Parkland, Florida on February 14, 2018) was arrested on March 19, 2018, for trespassing on the campus of

Marjory Stoneman Douglas High School Marjory Stoneman Douglas High School is a State school, public Secondary school, high school in Parkland, Florida, United States. Established in 1990 as part of the Broward County Public Schools district and named after the writer Marjory Stonem ...

. 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

* ttps://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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, hosted by Justia.com {{DEFAULTSORT:Excessive Bail United States constitutional criminal procedure Clauses of the United States Constitution *