Bail Reforms

8th Amendment – Excessive Bail

A person who has been arrested and charged with a crime has a constitutional right to be granted release from custody on reasonable bail. This involves posting a sum of money or bond in an amount adequate to ensure that the person will show up at all court ordered proceedings.

Excessive bail shall not be required

The Eighth Amendment to the U.S. Constitution provides in relevant part that “Excessive bail shall not be required.” The Supreme Court has interpreted the clause through the years in order to strike a balance between not jailing innocent people and at the same time, protecting society against a defendant’s failure to appear at court when charged with a very serious crime.

The Court has also noted that the right to bail is closely related to the Sixth Amendment right to counsel stating in the 1951 case of Stack v. Boyle, “This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.”

The Stack Court continued, stating that the right to pretrial release on bail is contingent on the accused providing “adequate assurance that he will stand trial and submit to sentence if found guilty.”

It is clear that the purpose for bail is to guarantee that the accused will show up in court when required. In determining how to set a bail that is not excessive, courts consider three major criteria:

The seriousness of the crime charged. The charge of first degree murder is generally found to be too serious to grant bail. Defendants charged with lesser crimes should be granted reasonable bail determined by the court’s evaluation of the other criteria.

The ties the defendant has to the community. Courts want to be certain the defendant has substantial reasons to stay in town and not flee the jurisdiction. The greater ties to the community, such as having lived there for a long time, close family relationships and a job, the more likely it is that the defendant will not flee and will show up for court appearances.

The defendant’s financial situation. What may be excessive for one defendant may not be excessive for another. For example, $1000 bail for a millionaire would be insignificant. A homeless person, or head of a household with a wife and four children to feed and shelter who is employed at a minimum wage job could find $1000 excessive.

The bail profession is uniquely situated to work with the courts and defendants in securing a reasonable bond for defendants while protecting society from bail that is set too low. Studies have shown that those released with no bail are more likely to flee than those who have something to lose financially if they don’t show up for court.

Sellers of commercial bail bonds help strike the balance between excessive bail being imposed and the defendant being able to post bail for pretrial release.

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