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Bail laws in the United
States grew out of a long
history of English statutes
and policies. During the
colonial period, Americans
relied on the bail structure
that had developed in
England hundreds of years
earlier. When the colonists
declared independence in
1776, they no longer relied
on English law, but
formulated their own
policies which closely
paralleled the English
tradition. 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.
In medieval England, methods
to insure the accused would
appear for trial began as
early as criminal trials
themselves. Until the 13th
century, however, the
conditions under which a
defendant could be detained
before trial or released
with guarantees that he
would return were dictated
by the local Sheriffs.x As
the regional representative
of the crown, the sheriff
possessed sovereign
authority to release or hold
suspects. The sheriffs, in
other words, could use any
standard and weigh any
factor in determining
whether to admit a suspect
to bail. This broad
authority was not always
judiciously administered.
Some sheriffs exploited the
bail system for their own
gain. Accordingly, the
absence of limits on the
power of the sheriffs was
stated as a major grievance
leading to the Statute of
Westminster.xi
The Statute of Westminster
in 1275 eliminated the
discretion of sheriffs with
respect to which crimes
would be bailable. Under
the Statute, the bailable
and non-bailable offenses
were specifically
listed.xii The sheriffs
retained the authority to
decide the amount of bail
and to weigh all relevant
factors to arrive at that
amount. The Statute,
however, was far from a
universal right to bail.
Not only were some offenses
explicitly excluded from
bail, but the statutes'
restrictions were confined
to the abuses of the
sheriffs. The justices of
the realm were exempt from
its provisions.
Applicability of the statute
to the judges was the key
issue several centuries
later when bail law
underwent its next major
change. In the early
seventeenth century, King
Charles I received no funds
from the Parliament.
Therefore, he forced some
noblemen to issue him
loans. Those who refused to
lend the sovereign money
were imprisoned without
bail. Five incarcerated
knights filed a habeas
corpus petition arguing that
they could not be held
indefinitely without trial
or bail. The King would
neither bail the prisoners
nor inform them of any
charges against them. The
King's reason for keeping
the charges secret were
evident: the charges were
illegal; the knights had no
obligation to lend to the
King. When the case was
brought before the court,
counsel for the knights
argued that without a trial
or conviction, the
petitioners were being
detained solely on the basis
of an
unsubstantiated and unstated
accusation. Attorney
General Heath contended that
the King could best balance
the interests of individual
liberty against the
interests of state security
when exercising his
sovereign authority to
imprison. The court upheld
this sovereign prerogative
argument.xiii
Parliament responded to the
King's action and the
court's ruling with the
Petition of Right of 1628.
The Petition protested that
contrary to the Magna Carta
and other laws guaranteeing
that no man be imprisoned
without due process of law,
the King had recently
imprisoned people before
trial "without any cause
showed." The Petition
concluded that "no freeman,
in any manner as before
mentioned, be imprisoned or
detained..." The act
guaranteed, therefore, that
man could not be held before
trial on the basis of an
unspecific accusation. This
did not, however, provide an
absolute right to bail. The
offenses enumerated in the
Statute of Westminster
remained bailable and
non-bailable. Therefore, an
individual charged with a
non-bailable offense could
not contend that he had a
legal entitlement to bail.
The King, the courts and the
sheriffs were able to
frustrate the intent of the
Petition of Right through
procedural delays in
granting the writs of habeas
corpus. In 1676, for
example, when Francis Jenkes
sought a writ of habeas
corpus concerning his
imprisonment for the vague
charge of "sedition," it was
denied at first because the
court was "outside term,"
and later because the case
was not calendared;
furthermore, when the court
was requested to calendar
the case it refused to do
so. In response to the
rampant procedural delays in
providing habeas corpus as
evidenced by Jenkes Case,xv
Parliament passed the Habeas
Corpus Act of 1677. The act
strengthened the guarantee
of habeas corpus by
specifying that a
magistrate: shall discharge
the said Prisoner from his
Imprisonment taking his or
their Recognizance, with
one or more Surety or
Sureties, in any Sum
according to their
discretion, having regard to
the Quality of the Prisoner
and
Nature of the offense, for
his or their Appearance in
the Court of the King's
bench...unless it shall
appear...that the Party
(is)...committed...for such
Matter or offenses for
which by law the Prisoner is
not bailable.xvi By
requiring early designation
of the cause for arrest, the
Habeas Corpus Act provided a
suspect with knowledge that
the alleged offense was
either bailable or not. The
Statute of Westminster
remained the primary
definition of what offenses
would be eligible for bail.
Although the Habeas Corpus
Act improved administration
of bail laws, it provided no
protection against excessive
bail requirements. Even if
a suspect was accused of a
bailable offense and
therefore was entitled to
some bail, he could still be
detained if the financial
condition of release was
exorbitantly high. As
evidence of this abuse
reached Parliament, it
responded with the English
bill of Rights of 1689. In
the Preamble, the bill
accused the King of
attempting "to subvert...the
laws and liberties of the
kingdom: in the "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."xvii The Bill
of Rights proposed to remedy
the situation by declaring
"that excessive bail ought
not to be required."xviii
Thus, the precursor of the
Eighth Amendment in the U.S.
Constitution was drafted to
prevent those accused of
bailable offenses from
unreasonable bail
requirements. It did not
alter the categories of
bailable crimes found in the
separate Statute of
Westminster and certainly
did not guarantee a right to
bail.
The language of the English
Bill of Rights was only one
part of the bail system
developed through many years
of English law. As Caleb
Foote has explained and this
analysis recounts, English
protection against
unjustifiable detention
contained three essential
elements: first, offenses
were categorized as bailable
or not bailable by statutes
beginning with Westminster I
which also placed limits on
which judges and officials
could effect the statue;
second, habeas corpus
procedures were developed as
an effective curb on
imprisonment without
specific changes; and third,
the excessive bail clause of
the 1689 Bill of Rights
protected against judicial
officers who might abuse
bail policy by setting
excessive financial
conditions for release.
English law never contained
an absolute right to bail.
Bail could always be denied
when the legislature
determined certain offenses
were unbailable. Most of
the history of bail law
after Westminster I was an
attempt to improve the
efficiency of existing law
and especially to grant the
suspect a meaningful chance
to satisfy bail conditions
when he had committed those
offenses that the
legislature had declared
bailable.
In colonial America, bail
law was patterned after the
English law. While some
colonies initiated their own
laws which were very similar
to English statutes, others
simply guaranteed their
subjects the same
protections guaranteed to
British citizens. When the
colonies became independent
in 1776, however, they could
no longer simply insure the
protections of English law.
Accordingly, the colonies
enacted specific bail laws.
Typical of the early
American bail laws were
those enacted in Virginia
perpetuating the bail system
as it had evolved in
England. Section 9 of
Virginia's Constitution in
1776 declared simply that
"excessive bail ought not to
be required..."xix This
constitutional provision was
supplemented in 1785 with a
statute which eliminated
judges; discretion to grant
bail by specifying that:
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."xx Thus
the Virginia laws closely
paralleled the English
system. Statutes defined
which offenses were bailable
while the Constitution
protected against
abuses of those
definitions. In fact, the
clause in the Virginia
Constitution was identical
to the one in the English
Bill of Rights which had
been included to prevent
judges from
unreasonable holding those
accused of bailable offenses
by setting bail so high as
to
be unobtainable. Other
State constitutions
similarly proscribed
excessive bail for bailable
offenses in order to prevent
this method of thwarting the
bail laws passed by the
legislatures: for example,
section 29 of the
Pennsylvania Constitution of
1776 provided that
"Excessive bail shall not be
exacted for bailable
offenses."xxi
With James Madison
designated to prepare an
initial draft for Bill of
Rights n 1789, the Virginia
constitution, often referred
to as the Virginia Bill of
Rights, became the model for
the first ten amendments
that passed congress in 1789
and were ratified in 1791.
The Eighth Amendment in this
Bill of Rights was taken
virtually verbatim from
Section 9 of the Virginia
Constitution and provided
that "Excessive bail shall
not be required..." The
only comment on the clause
during the congressional
debates was made by the
perplexed Mr. Livermore:
"The clause seems to have no
meaning to it, I do not
think it necessary. What
is meant by the term
excessive bail...!"xxii
Indeed, it seems the
drafters thought relatively
little about the meaning of
the bail clause; the clause
was so rooted in American
and English history that to
most, the meaning was
obvious. Like the identical
clause in the English Bill
of Rights and the Virginia
Constitution, the Eighth
Amendment bail provision was
intended to prohibit
excessive bail as a means of
holding suspects accused of
offenses deemed bailable by
Congress.
The bail clause in the
Eighth Amendment was only
one part of the American
bail structure.xxiii As in
England, the American system
also includes guarantees
against imprisonment without
informing the suspect of his
crime. The Sixth Amendment
to the Constitution, like
the English Habeas Corpus
Act of 1678, insures that
when arrested, a man "be
informed of the nature and
cause of the accusation"
thereby enabling him to
demand bail if he has
committed a bailable
offense. The final part of
the American bail structure
and the element upon which
the Constitution provisions
are based is the statutory
codification of justice
officials' power concerning
bail and the categorization
of crimes into bailable and
nonbailable offenses. The
Constitution merely
guarantees that excessive
bail may not be employed to
hold suspects who by law are
entitled to bail; similarly
the Sixth Amendment enables
prisoners to know if they
are in fact entitled to bail
under the law; it does not
give them any right to bail
already existing in the
law. Thus, the legislature
and not the constitution is
the real framer of bail law;
the constitution upholds and
protects against abuse of
the system which the
legislature creates. This
principle was well
understood by the Framers of
the Bill of rights. In
fact, the same Congress that
proposed the Eighth
Amendment also formulated
the fundamental bail statute
that remained in force until
1966. This was accomplished
in 1789, the same year that
the Bill of rights was
introduced, when Congress
passed the
Judiciary Act. The Act
specified which types of
crime were bailable and set
bounds on the judges'
discretion in setting bail.
Following the tradition of
State laws developed during
the colonial period which in
turn were based on English
law,xxiv the Judiciary Act
stated that all noncapital
offenses were bailable and
that in capital offenses,
the decision to detain a
suspect before trial was
left up to the judge:
{U}pon 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,
regarding the nature and
circumstance of the offense,
and of the evidence, the
usages of law.xxv
The sequence of events in
the First Congress
pertaining to American bail
policy is critical to an
understanding of the Framers
of the Eighth Amendment and
the Judiciary Act of 1789.
Only a few days after final
passage of the Bill of
Rights in Congress on
September 21, 1789, and
before its final adoption,
the First Congress passed
the Judiciary Act of 1789 on
September 29, 1789. In
fact, these two legislative
measures were debated almost
concurrently. Considerable
debate time was consumed in
the House of Representatives
over the issue of which
should be enacted first, the
bill creating a federal
judiciary and federal
judicial procedures or the
amendments to the
Constitution. Eventually
Madison's point of view that
the Bill of Rights should
take precedence so that "the
independent tribunals of
justice will consider
themselves...the guardians
of those rights"xxvi
prevailed. But the same day
the House completed the Bill
of Rights it proceeded to
perfect the Judiciary Act of
1789 which was already
approved by the Senate. The
two legislative proposals
passed each other going and
coming between the House and
the Senate. This historical
footnote illuminated
significantly the context in
which these measures were
debated. They were almost
considered simultaneously.
Often representatives argued
that changes in one measure
were unnecessary because the
other provided ample
protection for vital
rights.xxviii
This context suggests
strongly that the First
Congress acted very
purposefully in
substantially adopting the
English system of tripartite
protection against bail
abuses. The Eighth Amendment
prohibition against
excessive bail meant that
bail may not be excessive in
those cases where Congress
has deemed it proper to
permit bail. The Congress
then enacted the Judiciary
Act defining what offenses
would be bailable. Habeas
corpus protection was
afforded by Article I of the
Constitution. The argument
that the excessive bail
clause guarantees a right to
bail by necessary
implication and that the
provision forbidding
excessive bail would be
meaningless if judges could
deny bail altogether in some
cases is clearly not valid
in this historical context.
The same Congress which
drafted the Eighth Amendment
enacted the Judiciary Act
which specifically denied a
right to bail to individuals
charged with capital
offense.
In the context of its
legislative history, the
Eighth Amendment is
illuminated by reading it in
conjunction with the
Judiciary Act of 1789. The
First Congress adopted the
Amendment to prevent judges
from setting excessive bail
in cases prescribed as
bailable by Congress. The
same legislators then
enacted a bill prescribing
which offenses would be
bailable. The Eighth
Amendment, therefore, is not
self-executing. It requires
legislation creating legal
entitlements to bail to give
it effect. Recognizing
this, the First Congress
provided almost
simultaneously the
legislation that gave the
Amendment effect. The First
Congress did not choose a
strange legal arrangement;
it chose precisely the
system most familiar to
these former English
citizens. The First
Congress recognized that the
Amendment was not intended
to limit congressional
discretion to determine the
cases for which bail would
be allowed, but was designed
to circumscribe the
authority of courts to
ignore or circumvent that
congressional policy with
excessive bail requirements.
The Judiciary Act of 1789
did not differentiate
between bail before and
after conviction. Not until
1946 in the Federal Rules of
Criminal Procedure was this
distinction clearly made.
Rule 46 made the 1789 Act's
language the standard for
release, but left release
after conviction pending an
appeal or application for
certiorari to the judge's
discretion regardless of the
crime.
In 1966 Congress enacted the
first major substantive
change in federal bail law
since 1789. The Bail Reform
Act of 1966 provides that a
non-capital defendant
"shall...be ordered released
pending trial on his
personal recognizance" or on
personal bond unless the
judicial officer determines
that these incentives will
not adequately assure his
appearance at trial.xxviii
In that case, the judge must
select the least restrictive
alternative from a list of
conditions designed to
guarantee appearance. That
list includes restrictions
on travel, execution of an
appearance bond (refundable
when the defendant appears),
and execution of a bail bond
with a sufficient number of
solvent sureties.
Individuals charged with a
capital offense or who have
been convicted and are
awaiting sentencing or
appeal are subject to a
different standard. They
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 danger to
any other person or to the
community."
The 1966 Act thus created a
presumption for releasing a
suspect with as little
burden as necessary in order
to insure his appearance at
trial. Appearance of the
defendant for trial is the
sole standard for weighing
bail decision. In
noncapital cases, the Act
does not permit a judge to
consider a suspect's
dangerousness to the
community. Only in capital
cases or after conviction is
the judge authorized to
weigh threats to community
safety.
This aspect of the 1966 Act
drew criticism particularly
in the District of Columbia
where all crimes formerly
fell under the regulation of
Federal bail law. In a
considerable number of
instances, persons accused
of violent crimes committed
additional crimes while
released on their own
personal recognizance.
Furthermore, these
individuals were often
released again on nominal
bail.
The problems associated with
the 1966 Bail Reform Act
were considered by the
Judicial Council committee
to study the Operation of
the Bail Reform Act in the
Distract of Columbia in May
1969. The committee was
particularly bothered by the
release of potentially
dangerous noncapital
suspects permitted by the
1966 law and recommended
that even in noncapital
cases, a person's
dangerousness be considered
in determining conditions
for release. Congress went
along with the ideas put
forth in the committee's
proposals and changed the
1966 Bail Reform Act as it
applied to persons charged
with crimes in the District
of Columbia. The District
of Columbia Court Reform and
Criminal Procedure Act of
1970 allowed judges to
consider dangerousness to
the community as well as
risk of flight when setting
bail in noncapital cases.
The 1970 Act contained
numerous safeguards against
irrational application of
the dangerousness
provisions. For instance,
an individual could not be
detained before trial under
the act unless the court
finds that (1) there is
clear and convincing
evidence that he falls into
one of the categories
subject to detention under
the act, (2) no other
pretrial release conditions
will reasonably
assure community safety, and
(3) there is substantial
probability that the suspect
committed the crime for
which he has been
arrested. This last
finding was an overzealous
exercise of legislative
precaution. The Justice
Department testified that
the burden of meeting this
"substantial probability"
requirement was the
principal reason cited by
prosecutors for the failure
over the last 10 years to
request pretrial detention
hearings under the
statute. Such a standard
also had the effect of
making the pretrial
detention hearing a vehicle
for pretrial discovery of
the Government's case and
harassment of witnesses.
Moreover, the District of
Columbia Court of Appeals in
its Edwardsxxix decision
strongly suggests that the
probable cause standard
consistently sustained by
the Supreme Court as a basis
for imposing "significant
restraints on liberty" would
be constitutionally
sufficient in the context of
pretrial detention.
x
xi
xii Edw. 1. C. 15 In
additional to capital
offenses, the list included
"Thieves openly defamed and
known" those "taken for
House-burning feloniously
done," or those taken for
counterfeiting and many
other non-capital offenses.
xiii "Five Knights Case" or
"Proceedings on the Habeas
Corpus" brought by Sir
Thomas Darnel. 3 St. Fr. 1
(1627).
xiv William Duker, "The
Right to Bail: An Historical
Inquiry" 64, 42, Albany L.
Rev. 33 (1977).
xv
xvi 81 Car. 2 c. 2.
xvii W. & M. st 2 c. 2
preamble clause 10.
xviii 1 W. & M. st. 2 c. 2.
Rights clause 10.
xix 7 American Charters 3813
(F. Thorpe ed.. 1909)
xx 12 Va. Stat. 185-86 (W.
Hening ed.. 1823)
xxi 7 American Charters 3813
(F. Thorpe ed..1909)
xxii 1 "Annals of Congress"
754 (1789).
xxiii Caleb Foote, "The
Coming Constitutional Crisis
in Bail." 113 Pennsylvania
L. Rev. 959. At 968 (1965).
Hermine Herta Meyer, "The
Constitutionality of
Pretrial Detention,: 60
Georgetown L. Rev. 1139
(1972).
xxiv Duker. Supra note 14 at
77-83
xxv The Judiciary Act of
1789, 1 Stat. 73, 91.
xxvi 1 "Annals of Congress"
428, 462 (1789)
xxvii Id. At 448.
xviii the Bail Reform Act of
1966, 18 U.S.C. 3146 et seq.
xxix United States v.
Edwards, No. 80-294 (D.C.
App. May 8, 1981) (slip
opinion). petition.... |
