Money posted by persons accused of crimes as security for their appearance at trial. The U.S. Constitution offers guarantees against excessive bail, which were interpreted and generally upheld by the Supreme Court.
The use of bail has been a part of the Anglo-American criminal justice system since the English Bill of Rights of 1689 gave protections against excessive bail. The founders of the American republic counted the right to a just bail among the essential liberties. The Eighth Amendment to the U.S. Constitution guarantees that “excessive bail shall not be required.” A stronger expression of the contemporary feeling about bail is found in the Northwest Ordinance of 1787, which declared that “all persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great.”
In a key 1895 Supreme Court decision, Justice Horace Gray affirmed the principal of bail in the U.S. justice system.
In 1895 the Supreme Court first affirmed the importance of a right to reasonable bail in Hudson v. Parker
The Court in Stack v. Boyle
Traditionally, the sole justification for jailing an accused but otherwise presumed innocent person before trial was to assure that the individual did not flee. It was generally not believed to be proper to deprive people of their liberty on the grounds that they may commit future crimes when they have not been convicted of a crime. The constitutional protection of the rights of the accused person has clashed in recent years with the desire by federal authorities to “preventively detain” persons accused of federal crimes to prevent them from engaging in criminal activities. One concern is the fear that members of criminal organizations freed on bail might harass and intimidate witnesses, thereby corrupting the judicial process.
The rise of international terrorism and drug trafficking led Congress to pass the Bail Reform Act
The constitutionality of the Bail Reform Act was determined by the Court in United States v. Salerno
Duker, William F. “The Right to Bail: A Historical Inquiry.” Albany Law Review 42 (1977): 33-120. Goldkamp, John S. “Danger and Detention: A Second Generation of Bail Reform.” Journal of Criminal Law and Criminology 76 (Spring, 1985): 1-74. Metzmeier, Kurt X. “Preventive Detention: A Comparison of Bail Refusal Practices in the United States, England, Canada, and Other Common Law Nations.” Pace International Law Review 7 (Spring, 1996): 399-438. Singer, Richard G. Criminal Procedure II: From Bail to Jail. New York: Aspen, 2005.
British background to U.S. judiciary
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