Excessive bail
Encyclopedia
The Excessive Bail Clause of the Eighth Amendment to the United States Constitution
prohibits excessive bail
set in pre-trial detention.
The Clause was drafted in response to the perceived excessiveness of bail in England. Excessive bail was also prohibited by the English Bill of Rights. 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.
is based on old English common law
and the British Bill of Rights.
In England, sheriff
s originally determined whether to grant bail to criminal suspects. Because they tended to abuse their power, Parliament passed a a statute
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 argued 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. http://caselaw.lp.findlaw.com/data/constitution/amendment08/01.html
, , 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."
, . 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."
and the Constitution of Hawaii
.
Michigan
In Michigan, a judge or justice
may be censure
d for "setting 'grossly excessive' bail and [thus] showing a 'severe attitude' toward witnesses and litigants," as the Michigan Supreme Court
did to a trial judge recently.
New Hampshire
In New Hampshire
, 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".
Virginia
In Virginia the 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."
Michael Jackson
famously argued for lower bail in his trial
concerning alleged child sexual abuse
, for which he eventually won the court case.
In a recent case of a high student who played a "stunt" at school, $300,000 bail was reduced on appeal to $50,000 due to its excessive nature. In another case, bail of $3 billion was ruled excessive, even for a billionaire, and was reduced by a Texas Court of Appeals to $450,000.
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
prohibits excessive bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
set in pre-trial detention.
The Clause was drafted in response to the perceived excessiveness of bail in England. Excessive bail was also prohibited by the English Bill of Rights. 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.
Origins
The excessive bail provision of the Eighth Amendment to the United States ConstitutionEighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
is based on old English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and the British Bill of Rights.
In England, sheriff
Sheriff
A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....
s originally determined whether to grant bail to criminal suspects. Because they tended to abuse their power, Parliament passed a a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
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
Petition of right
In English law, a petition of right was a remedy available to subjects to recover property from the Crown.Before the Crown Proceedings Act 1947, the British Crown could not be sued in contract...
of 1628 argued 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
Habeas Corpus Act 1679
The Habeas Corpus Act 1679 is an Act of the Parliament of England passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained cannot be ordered to be...
. 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. http://caselaw.lp.findlaw.com/data/constitution/amendment08/01.html
Text
The Eighth Amendment provides:- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Interpretation
The Excessive Bail Clause currently governs only federal pre-trial detention. The U.S. Supreme Court has not yet applied the Clause to the states through the incorporation of the Bill of Rights.Presence at trial
In Stack v. BoyleStack v. Boyle
Stack v. Boyle, 342 U.S. 1 , was a United States Supreme Court case involving the arrest of members of the Communist Party who were charged with conspiring to violate the Smith Act. The case regards the Eighth Amendment issue of excessive bail....
, , 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. SalernoUnited States v. Salerno
United States v. Salerno, 481 U.S. 739 , was a United States Supreme Court decision. It determined that the "Bail Reform Act of 1984", which permitted the federal courts to detain an arrestee prior to trial if the government could prove that the individual was potentially dangerous to other people...
, . 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."
U.S. state law
Most U.S. states have similar provisions for preventing excessive bail. For example, similar prohibitions are contained in the Connecticut ConstitutionConnecticut 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 is the second constitution that the state has had...
and the Constitution of Hawaii
Constitution of Hawaii
The Constitution of the State of 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 jurisdiction. Numerous constitutions have been promulgated for the Kingdom of Hawaii,...
.
Michigan
In Michigan, a judge or justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
may be censure
Censure
A censure is an expression of strong disapproval or harsh criticism. Among the forms that it can take are a stern rebuke by a legislature, a spiritual penalty imposed by a church, and a negative judgment pronounced on a theological proposition.-Politics:...
d for "setting 'grossly excessive' bail and [thus] showing a 'severe attitude' toward witnesses and litigants," as the Michigan Supreme Court
Michigan Supreme Court
The Michigan Supreme Court is the highest court in the U.S. state of Michigan. It is known as Michigan's "court of last resort" and consists of seven justices who are elected to eight-year terms. Candidates are nominated by political parties and are elected on a nonpartisan ballot...
did to a trial judge recently.
New Hampshire
In New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
, 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".
Virginia
In Virginia the Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
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 a New York real estate heir received a bail of $3 billion. The estate heir’s lawyer appealed the bail to the 14th Court of Appeals. The court responded with, “…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.” http://www.talkleft.com/story/2004/06/02/682/78173Michael Jackson
Michael Jackson
Michael Joseph Jackson was an American recording artist, entertainer, and businessman. Referred to as the King of Pop, or by his initials MJ, Jackson is recognized as the most successful entertainer of all time by Guinness World Records...
famously argued for lower bail in his trial
People v. Jackson
People vs. Jackson was a 2005 trial involving recording artist Michael Jackson. The accuser was a boy, Gavin Arvizo, who was 13 years old at the time of the alleged crimes...
concerning alleged child sexual abuse
Child sexual abuse
Child sexual abuse 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 asking or pressuring a child to engage in sexual activities , indecent exposure with intent to gratify their own sexual desires or to...
, for which he eventually won the court case.
In a recent case of a high student who played a "stunt" at school, $300,000 bail was reduced on appeal to $50,000 due to its excessive nature. In another case, bail of $3 billion was ruled excessive, even for a billionaire, and was reduced by a Texas Court of Appeals to $450,000.
Further reading
- Jacob G. Hornberger, "The Bill of Rights: Bail, Fines, and Cruel and Unusual Punishments," Law blog, Posted July 29, 2005 at Future of Freedom website
External links
- News and Articles on Excessive Bail from LawKt website
- News and Articles on Excessive Bail from Mongabay website
- History of Excessive Bail from findlaw.com website
- Cases and arguments on Excessive Bail from law.onecle.com website
- A Law student's review of the law on Excessive Bail
- ConSource website
- U.S. Constitution, Annotated: Section on Excessive Bail. Prepared by the Congressional Research ServiceCongressional Research ServiceThe Congressional Research Service , known as "Congress's think tank", is the public policy research arm of the United States Congress. As a legislative branch agency within the Library of Congress, CRS works exclusively and directly for Members of Congress, their Committees and staff on a...
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