A Complete History of the US Bail System

bill of rightsThe bail system that we use in the United States has roots that go further back than the history of our country. Much of the American legal system has its roots in English common law, and bail is no exception. In 1275, the Statute of Westminster limited the power of sheriffs to grant bail to suspected criminals, who had previously been given complete sovereignty over releasing accused persons. The King could still dictate that certain individuals should be held without bail, but this power was abused as well. The 1628 Petition of Right further clarifies the ability of both sheriffs and the King’s judges to impose reasonable amounts of bail on an accused person. The 1689 English Bill of Rights declares that “excessive bail” should not be required, an act which finally codified the bail system in England and Wales after several centuries of dissension and confusion. This bill later became the inspiration for part of the US Constitution.

Bail has been a right granted to US citizens accused of crimes since the founding of the country. As the American legal system has grown, legislation regarding bail has changed as well. The history of the American bail process can be traced through different legal decisions that have been handed down over the last 237 years.

The Judiciary Act of 1789

This act declared that all persons accused of non-capital crimes could be granted bail. This provided a legal precedent for the rights of defendants facing a trial and prevented judges from imposing excessive bail fines on an accused person. When the Bill of Rights was passed in 1791, the legitimacy of the Judiciary Act was further supported by the Sixth and Eighth Amendments.

The Sixth Amendment

This amendment to the US Constitution declares that any accused person is guaranteed the right to a “speedy and public” trial. The amendment also guarantees that the accused person will have the right to find witnesses “in his favor” as well as the chance to procure the services of an attorney. Coupled with the Judiciary Act, this allowed for defendants to post bail as they are presumed innocent until proven guilty.

The Eighth Amendment

The Eighth Amendment finds its roots in English common law, which prohibits excessive bail. Previously, the bail system could be abused by officials who might set bail at an unreasonable amount in order to prevent the accused from leaving custody before their trial began. The Supreme Court later clarified the terms “excessive bail” and “excessive fines” as any fine that is exponentially larger than what would typically be expected for the crime that the defendant is accused of committing.

Reform Act of 1966

While the Eighth Amendment ensures that no one is charged with an excessive amount of bail, there was no right to bail that was written into the Constitution. Much like English common law, the right to bail was guaranteed through the law that prohibited excessive bail for most crimes. The Bail Reform Act of 1966 provides accused persons with a statutory right to bail. However, there were some issues with how the law permitted those accused of violent crimes to post bail and go free temporarily on their own personal recognizance.

The 1984 Bail Law

The 1966 Bail Reform Act was criticized by the legal authorities in some jurisdictions, as it did not make provisions to detain persons who were accused of violent crimes. The only time that bail could be denied was if the defendant was seen as a flight risk. The 1984 bail law that replaced the 1966 law allowed for the pre-trial detention of some defendants based on their potential risk to themselves, their close acquaintances or the general public.

Where we Stand Today Today

Different states and jurisdictions may have their own additional bail laws that are close in nature to federal bail regulations. For example, any offense is bailable in Tennessee, but it can be refused in cases where violent crimes are involved. In California, a bail review must be granted to each defendant within five days. A person who is accused of a non-violent offense in any state is usually granted bail, and the amount is sometimes capped at a certain amount as per local or state law. This concept is referred to as a bail schedule.

Bail as we know it today is the result of centuries of legislation in both England and the United States. While it can be revoked in cases where the accused is deemed a flight risk or a public threat, bail is a legal right that is given to citizens in order to give them the opportunity to provide a defense during their trial.

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Clive Johnson

Clive is a bail expert from the Tucson area who started this site to correct a number of myths about the industry. He's also a family man with a wife and three kids. When he's not working he spends his time on the golf course or at the Rotary club.