History of Bail

Bail is some form of capital which is deposited or pledged to a court in order to convince it to release an accused from a jail facility, on the understanding that the accused will return for trial or forfeit the bail ("skipping bail" is also illegal). Depending upon the court involved and the crime(s) of which one is accused. Bail is not always available it can be legally denied for an offense / charge which the governing legislature has determined to be non-bialable.

Roots of US Bail Laws                   

Bail laws in the United States grew out of a long history of English statutes and policies.  The ties between the institution of bail in the United States is also based on the old English system.   In attempting to understand the meaning of the American constitutional bail provisions and how they were intended to supplement a larger statutory bail structure, knowledge of the English system and how it developed until the time of American independence is essential.

 Bail Law in England

In medieval England, the sheriffs originally possessed sovereign authority to release or hold suspected criminals. Some sheriffs would exploit the bail for their own gain. The Statute of Westminster (1275) limited the discretion of sheriffs with respect to the bail. Via the statute, bailable and non-bailable offenses were defined, however, the sheriffs retained the authority to decide the amount of bail required.

In the early 17th Century, King Charles I ordered noblemen to issue him loans. Those who refused were imprisoned. Five of the incarcerated filed a habeas corpus petition arguing that they should not be held indefinitely without trial or bail. In the Petition of Right (1628) the Parliament argued that, in violation of the Magna Carta, the King had imprisoned people without just cause.

The Habeas Corpus Act (1677) states, "A Magistrate shall discharge Prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall appear that the Party is committed for such Matter or offenses for which by law the Prisoner is not bailable."

The English Bill of Rights (1689) states that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required." This was a precursor of the Eighth Amendment to the US Constitution.

Bail Law in the United States

In Colonial America, bail law was based off English law. Some of the colonies simply guaranteed their subjects the protections of British law. In 1776, after the Declaration of Independence, those which had not already done so, enacted their own versions of bail law.

Section 9 of Virginia's 1776 Constitution states "excessive bail ought not to be required..." In 1785, the following was added, "Those shall be let to bail who are apprehended for any crime not punishable in life or limb...But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail."

Section 29 of the Pennsylvania Constitution of 1776 states "Excessive bail shall not be exacted for bailable offenses."

The Eighth Amendment in the US Federal Bill of Rights is derived from the Virginia Constitution, "Excessive bail shall not be required...", in regards to which Mr. Livermore commented, "The clause seems to have no meaning to it, I do not think it necessary. What is meant by the term excessive bail...?!"

The Eighth Amendment, to the Constitution, like the English Habeas Corpus Act of 1678, requires that a suspect "be informed of the nature and cause of the accusation" and thus enabling a suspect to demand bail if accused of a bailable offense.

The Judiciary Act of 1789

In 1789, the same year that the Bill of rights were introduced, Congress passed the Judiciary Act. This specified which types of crimes were bailable and set bounds on the discretion of a judge in setting bail. The Act states that all noncapital offenses are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge.

The Judiciary Arct states, "Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein."

The Bail Reform Act of 1966

In 1966, Congress enacted the Bail Reform Act of 1966 which states that a non-capital defendant is to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial. In that case, the judge must select an alternative from a list of conditions, such as restrictions on travel. Individuals charged with a capital offense, or who have been convicted and are awaiting sentencing or appeal, are to be released unless the judicial officer has reason to believe that no conditions will reasonably assure that the person will not flee or pose a danger. In non-capital cases, the Act does not permit a judge to consider a suspect's danger to the community, only in capital cases or after conviction is the judge authorized to do so.

The 1966 Act was particularly criticized within the District of Columbia, where all crimes formerly fell under Federal bail law. In a number of instances, persons accused of violent crimes committed additional crimes when released on their personal recognizance. These individuals were often released yet again.

The Judicial Council committee recommended that, even in non-capital cases, a person's dangerousness should be be considered in determining conditions for release. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in non-capital cases.