Excessive Bail Clause
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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.
The excessive bail provision of the Eighth Amendment to the United States Constitution is based on old English common law and the British Bill of Rights.
In England, sheriffs originally determined whether to grant bail to criminal suspects. Because they tended to abuse their power, Parliament passed 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. 
The Eighth Amendment provides:
- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Excessive Bail Clause currently governs only federal pre-trial detention.
Presence at trial
In Stack v. Boyle, 342 U.S. 1 (1951), 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 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, 481 U.S. 739 (1987). 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."
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, 455 U.S. 478 (1982), 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
In Michigan, a judge or justice may be censured 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 in 2008.
- New Hampshire
Virginia's 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."
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 Texas 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." The court reduced bail to $450,000.
In a 2005 case of a high school student who played a "stunt" at school, $300,000 bail was reduced on appeal to $50,000 due to its excessive nature.
- U.S. Const. amend. VIII (emphasis added).
- Stack v. Boyle, 342 U.S. 1 (1951). Text
- Debra Cassens Weiss, "Judge Censured for Excessive Bail, Severe Attitude", ABA Journal, February 8, 2008, found at American Bar Association official website. Accessed August 28, 2008.
- In re Judge Norene Redmond of Eastpointe (SC: 134481 Mich. February 6, 2008), order found at Michigan Supreme Court government website (pdf file). Accessed August 28, 2008.
- New Hampshire statutes, § 534:6, found at New Hampshire government website. Accessed August 28, 2008.
- Blog, "$3 Billion Bail is Excessive", found at talkleft.com website. Accessed August 28, 2008.
- Charles V. Bagli, "Durst May Gain His Release Temporarily," September 10, 2004, New York Times, found at NY Times website. Accessed August 28, 2008.
- contactmusic.com website. Accessed August 28, 2008.
- MJEOL website. Accessed August 28, 2008.
- Editorial, "Bail was excessive for high-school stunt," February 17, 2005, found at readingeagle.com website. Accessed August 28, 2008.
- 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
- 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 Service, hosted by Justia.com