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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.
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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 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. [1]
The Eighth Amendment provides:
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.
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.[2]
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."
Most U.S. states have similar provisions for preventing excessive bail. For example, similar prohibitions are contained in the Connecticut Constitution and the Constitution of Hawaii.
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 recently.[3][4]
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".[5]
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." [6]
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.” [2]
Michael Jackson famously argued for lower bail in his trial concerning alleged child sexual abuse, for which he eventually won the court case.[7][8]
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.[9] 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.[10][11]