The Excessive Bail Clause

Excessive bail shall not be required. . . .

—John F. Stinneford

Introduction

The Eighth Amendment prohibits imposition of “excessive bail.” In its modern form, bail is the payment of money to the court in a criminal case to ensure that the defendant exhibits good behavior and appears at trial. In early times, bail was a system that allowed family, friends, and neighbors to act as guarantee, or surety, for the release of a prisoner. Over time, however, bail became a system focused primarily on the posting of bond to ensure the released prisoner’s appearance at trial. Under Supreme Court precedent, there is no absolute right to bail. The appropriate amount of bail depends on a variety of factors, including the nature of the offense, the character of the defendant, and the likelihood of flight. If the purpose of bail in a given case is to ensure the defendant’s appearance at trial, bail set higher than necessary to fulfill this purpose is “excessive” under the Eighth Amendment.

History Before 1787

The concept of bail has roots that reach back more than a thousand years.¹ Scholars have traced a form of bail to the pre-Norman period whereby a person could stand as surety for a defendant who was guilty of homicide. The surety would insure that the victim’s family would receive the full compensation, or wergild, that the defendant owed them.

Something more closely resembling modern bail was instituted after the Norman invasion. In 1066, the crown instituted a formal process of criminal prosecution and had to decide what to do with defendants during the interim between arrest and trial. The earliest statutes providing for bail in certain cases were the Assize of Clarendon (1166) and the Assize of Northampton (1176). In the earliest form of bail, the defendant’s lord could act as surety for the defendant’s good behavior and appearance at trial. Over time, bail developed into a system allowing monetary payments to assure appearance and good behavior. Some defendants, such as those accused of homicide or arrested by special order of the king, were non-bailable. Even for bailable offenses, the king had the authority to order that the defendant be held pending trial. Initially, there were no formal limits on the amount that could be required for bail, but efforts were made to prevent sheriffs from demanding extortionate sums in exchange for release.

Prohibitions against the imposition of excessive bail began to develop in the seventeenth century.² These restrictions arose from ongoing conflicts between Parliament and the Stuart kings concerning arbitrary imprisonment. The Stuart kings developed a practice of imprisoning political enemies without publicly identifying the reason. This meant that courts could not determine whether the prisoner was being held on a bailable or non-bailable offense. As a result, it was impossible to obtain the release of these prisoners.

Parliament responded to this practice with several laws. The Habeas Corpus Act of 1640 required the government to state the cause of imprisonment in its response to the habeas petition. The Habeas Corpus Act of 1679 prohibited jailers from trying to evade a court’s jurisdiction in habeas cases. At the time, the judges were appointed by the king and served at his pleasure. Some of those judges undermined the purpose of the Habeas Corpus Acts by setting bail so high that the prisoner could not possibly obtain release.

Parliament once again responded. The prohibition of excessive bail first appeared in the 1689 English Bill of Rights.³ It provided, in part, “[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Even after enactment of the English Bill of Rights, however, judges retained significant discretion in setting bail. The question of whether to grant bail and how high to set it involved weighing factors such as the seriousness of the offense, the strength of the evidence, the character of the defendant, and the defendant’s financial means.⁴ The preference for liberty strongly favored the release of defendants before trial, although certain offenses remained “non-bailable.”

The English system of bail continued in the United States. The Founding generation was acutely aware of the seventeenth-century English constitutional conflicts concerning bail. Before the adoption of the Constitution, more than half of the state constitutions contained language prohibiting excessive bail.⁵ For example, George Mason included this prohibition in the Virginia Declaration of Rights of 1776.⁶ Some states provided, either by constitution or by statute, a right to bail for certain types of offense, and some did not.

Adoption of the Eighth Amendment

As initially proposed, the U.S. Constitution did not contain a bill of rights, although some common-law rights were embedded in the constitutional text. During the state ratifying conventions, delegates complained about this absence. Several state conventions proposed that the Constitution be amended to include a prohibition of excessive bail, but there was no discussion of what this provision meant or how it would work in practice.

During the First Congress, Representative James Madison of Virginia introduced a series of amendments now referred to as the Bill of Rights. One of the proposed amendments included a prohibition of excessive bail.⁷ The meaning and application of this provision were not discussed in depth during the debate over these proposals.⁸ Congress passed the prohibition of excessive bail, and it was ratified by the states.

The First Congress also adopted the Judiciary Act of 1789. This statute allowed bail for all non-capital offenses: “[U]pon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death.”⁹ This history suggests that the Excessive Bail Clause was not originally understood to provide a right to bail in every case. Moreover, this statute indicates that the First Congress considered the question of which offenses to make eligible for bail to be a legislative one rather than a judicial question. This approach was consistent with that of most states at that time.

Supreme Court Precedent

The text of the Eighth Amendment prohibits only “excessive” bail. Suspects in custody do not have a right to bail at all. Carlson v. Landon (1952) held that people awaiting deportation could be denied bail if their release would present a danger to public welfare.¹⁰ Moreover, the U.S. Supreme Court has held that Congress has the authority to declare certain crimes or defendants non-bailable. United States v. Salerno (1987), for instance, upheld the constitutionality of the Bail Reform Act of 1984, which denies bail for suspects who “pose a threat to the safety of individuals or to the community.”¹¹ The Court acknowledged that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” The provisions of the Bail Reform Act fit within this exception.¹²

The excessiveness of bail is determined by comparing it to the government’s asserted interest.¹³ For example, when the government’s concern is to assure the defendant’s appearance at trial, “[b]ail set at a figure higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the Eighth Amendment.”¹⁴ But the question of bail is not limited to concerns over flight risk. Bail can also be set at a higher amount or denied altogether on the ground that the defendant poses a danger to society.¹⁵

Open Questions

• The Supreme Court has never decided whether the Excessive Bail Clause has been incorporated into the Fourteenth Amendment. However, in two cases, the Court implied in dicta that the right has been incorporated.¹⁶
• The Court has not foreclosed the possibility that there may be a right to bail per se in certain cases.¹⁷
• The Court has not decided whether bail is automatically excessive when it is beyond the defendant’s capacity to pay.

1. Hermine Herta Meyer, Constitutionality of Pretrial Detention, 60 Geo. L.J. 1140, 1145–62 (1972). ↩︎
2. Id. at 1180–90. ↩︎
3. 1 W. & M., ch. 2, sess. 2 (1689), https://perma.cc/F4VX-4229. ↩︎
4. William F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33 (1977); Meyer, supra at 1139. ↩︎
5. Duker, supra at 82. ↩︎
6. Va. Const. of 1776, § 9. ↩︎
7. 1 Annals of Cong. 452 (1789). ↩︎
8. Id. at 762. ↩︎
9. An Act to Establish the Judicial Courts of the United States, 1 Stat. 73, § 33 (1789). ↩︎
10. 342 U.S. 524, 545–46 (1952). ↩︎
11. 481 U.S. 739, 755 (1987). ↩︎
12. Id. ↩︎
13. Id. ↩︎
14. Stack v. Boyle, 342 U.S. 1, 5 (1951). ↩︎
15. Salerno, 481 U.S. at 754. ↩︎
16. McDonald v. City of Chicago, 561 U.S. 742, 765 n.13 (2010); Schilb v. Kuebel, 404 U.S. 357, 365 (1971). ↩︎
17. Salerno, 481 U.S. at 754. ↩︎