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.

(Library of Congress)

In 1895 the Supreme Court first affirmed the importance of a right to reasonable bail in Hudson v. Parker[case]Hudson v. Parker[Hudson v. Parker]. Writing for the majority, Justice Horace Gray noted that a key principle of the U.S. justice system was “the theory that a person accused of a crime shall not, until he has been finally adjudged guilty…be absolutely compelled to undergo imprisonment or punishment.” However, an earlier decision, McKane v. Durston[case]McKane v. Durston[MacKane v. Durston] (1894), limited the scope of this decision by ruling that the Eighth Amendment’s bail provision did not apply to state courts.

The Court in Stack v. Boyle[case]Stack v. Boyle[Stack v. Boyle] (1951), a case involving twelve CommunistCommunism Party leaders accused of conspiracy, was concerned that excessive bail hampered the accused’s right to a vigorous defense. The Court held that “the traditional right to freedom before conviction permits the unhampered preparation of a defense. Unless the right to bail is preserved, the presumption of innocence, secured after centuries of struggle, would lose its meaning.” The Court determined that the purpose of bail is to “serve…as assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is excessive under the Eight Amendment.” However, the next year, in Carlson v. Landon[case]Carlson v. Landon[Carlson v. Landon] (1952), the Court in a 5-4 vote found that not all detentions were subject to bail, and Congress had the power to define cases in which bail was not allowed. The Carlson case was a civil case involving the detention of aliens before a deportation hearing.

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 ActBail Reform Act of 1984, which allows a federal judge to consider preventive detention of a person accused of a federal crime if he or she finds that “no conditions or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of any person before trial.” The act allows a federal prosecutor to ask a judge to hold a defendant without bail indefinitely if the prosecutor can make a showing that the person poses a threat to others.

The constitutionality of the Bail Reform Act was determined by the Court in United States v. Salerno[case]Salerno, United States v.[Salerno, United States v.] (1987). Salerno involved two defendants indicted for racketeering and denied bail under the provisions of the act. One of the accused was alleged by prosecutors to be the “boss” of the Genovese crime family and the other a high-ranked “captain.” The crimes included several counts of extortion and conspiracy to murder. The Court examined whether the bail reforms violated the defendant’s constitutional right to be free from excessive bail, but it rejected the claim that Stack applied to the case. Limiting the scope of Stack, the Court found that the right to bail had never been considered absolute and that persons accused of capital crimes and at risk of flight had long been subject to bail restrictions and upheld the act. The Court noted that although “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” the Bail Reform Act fell “within that carefully limited exception.” The Count determined that the “numerous procedural safeguards” adequately protected against abuse of the act.

• 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

Counsel, right to

Eighth Amendment

Northwest Ordinance