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History
of Bail
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,
(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 Edwards(xxix) 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….
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