Here is the 8th Amendment FWIW. As you can see, no one shall be given excessive bail. The only thing is I hear these newsstories in federal cases where people are denied bail altogether. (And these newsstories are on TV. So sorry, no cites:).)
How is this possible? Isn’t bail a fundamental right? According to the Eighth Amendment?
I know that ALL of the Eighth Amendment has never been applied to the states. So no controversy there (in fact in Michigan where I live, bail is automatically denied in first degree murder cases).
And my law dictionary says bail can be ‘de facto’ denied by just making it ridiculously high. But that is a different matter.
The short, short version is that bail is not always required to be given, but in those cases where it is given, it shall not be excessive. Yes, I know.
Bail is intended to ensure that the accused will show up for their trial.
But in capital murder cases, the accused is at risk of losing their life. So the reasoning is that no amount of money is enough bail to ensure they will not flee to save their life. (Especially if the accused knows he is guilty.)
Apparently, the same reasoning is applied, even in non death penalty states.
If you say someone can have bail, then setting it so high that they can’t is defeating the purpose of setting bail. If the court meant for them not to have bail, they should have said so.
Of course, it was a different time in 1788. The idea of sentencing someone to jail is relatively new. In the "good old days’ (middle ages and before) locking up petty criminals was not a thing. Food was relatively expensive, running a penitentiary cost money. People would be held until trial. VIP’s would be held indefinitely so they could be kept under control - ie. a lord who tried to lead a rebellion but was too popular to execute (hence those lodging in the Tower of London); but petty criminals, they would be sentenced - hanging, branding, mutilation (Chop of the hand), deporting to America then Australia, etc. The problem in the USA was that many had jobs to do. Lock up some farmer over a theft allegation until trial, and nobody is there to tend the livestock or harvest the crop; what if he’s not guilty, you’ve still basically deprived him of a livelihood and he may lose the farm. Plus, you don’t want to fill the jail with those who are not likely to run away.
Today it’s far too easy to be across the country before the authorities realize you’re gone, and many people have th money to disappear.
That’s one of the reasons, but the Salerno case I cited held that “potential danger to society” may also be used as a reason to deny bail.
Justice Marshall in dissent (and I never thought I would say this) makes an excellent point why this should not be a consideration.
But I agree with others that this seems to be the most hollow guarantee in the Bill of Rights. You get reasonable bail, but only if we allow bail, and “reasonable” can mean so high that you cannot possibly post it. I understand the reasons behind it, but it might as well not even be there.
Bail is excessive when compared to what? It would be like if the First Amendment said you have Freedom of Speech, but only on such topics and for a length of time that the legislature declares is reasonable.
