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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Excessive bail provision of the Eighth Amendment to the United States Constitution is based on an old English common law right of Englishmen and the British Bill of Rights. It is considered a fundamental right by the Supreme Court of the United States. Generally defined, excessive bail means "an amount of bail ordered posted by an accused defendant which is much more than necessary or usual to assure he/she will make court appearances, particularly in relation to minor crimes."[1]



In England, sheriffs originally determined whether or not to grant bail to criminal suspects. Since they tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and non-bailable offenses were defined. The King's judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign's command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that "excessive bail ought not to be required." Nevertheless, the Bill did not determine the distinction between bailable and non-bailable offenses.

The Eighth Amendment

The Eighth Amendment has been interpreted to mean that bail may be denied if the charges are sufficiently serious. The Supreme Court has also permitted "preventive" detention without bail.

In Stack v. Boyle 342 U.S. 1 (1951), the U.S. Supreme Court found "that a defendant's bail cannot be set higher than an amount that is reasonably likely to ensure the defendant's presence at the trial. In Stack, the court finds bail of $50,000 to be excessive, given the limited financial resources of the defendants and a lack of evidence that they were likely to flee before trial."[2][3]

In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that the only limitation imposed by the bail clause is that "the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil."

In state constitutions

Most of the states have similar provisions for preventing excessive bail, including Alabama.[4]

Procedure and consequences

If a defendant or his or her attorney "can make a motion for reduction of bail, and if it is not granted, he/she can then apply directly to a court of appeal for reduction."[1]

Michael Jackson famously argued for a lower bail in his trial concerning alleged child sexual abuse, for which he eventually won.[5][6]

In a recent case of a high school student who played a "stunt" at school, $300,000 bail was reduced on appeal to $50,000 due to its excessive nature.[7] Bail of $3 Billion was ruled excessive, even for a billionaire, and was reduced by a Texas Court of Appeals to $450,000.[8][9]

In some states, such as New Hampshire, a Writ of habeas corpus may be used to change the amount of excessive bail; the bail must be "reasonable".[10]

A judge or justice may be censured for "setting 'grossly excessive' bail and [thus] showing a 'severe attitude' toward witnesses and litigants," as the Michigan Supreme Court did to a trial judge recently.[11][12]

Some defendants may sue the judge for violation of civil rights.[13]

See also


  1. ^ a b Legal explanations website. Also found at website and Accessed August 28, 2008.
  2. ^ Justice Learning website. Accessed August 28, 2008.
  3. ^ See full text of Stack v. Boyle, 342 U.S. 1 (1951), at website, and summary at website. Accessed August 28, 2008.
  4. ^ Alabama Constitution, § 16.Alabama government website. Accessed August 28, 2008.
  5. ^ website. Accessed August 28, 2008.
  6. ^ MJEOL website. Accessed August 28, 2008.
  7. ^ Editorial, "Bail was excessive for high-school stunt," February 17, 2005, found at website. Accessed August 28, 2008.
  8. ^ Blog, "$3 Billion Bail is Excessive", found website. Accessed August 28, 2008.
  9. ^ Charles V. Bagli, "Durst May Gain His Release Temporarily," September 10, 2004, New York Times, found at NY Times website. Accessed August 28, 2008.
  10. ^ New Hampshire statutes, § 534:6, found at New Hampshire government website. Accessed August 28, 2008.
  11. ^ Debra Cassens Weiss, "Judge Censured for Excessive Bail, Severe Attitude", ABA Journal, February 8, 2008, found at American Bar Association official website. Accessed August 28, 2008.
  12. ^ In re Judge Norene Redmond of Eastpointe (SC: 134481 Mich. February 6, 2008), order found at Michigan Supreme Court government website (pdf file). Accessed August 28, 2008.
  13. ^ Fred Cichon, "Heicklen files suit; claims false arrest, excessive bail," Penn State Daily Collegian, February 17, 2000, found at Penn State Daily Collegianwebsite . Accessed August 28, 2008.

External links

Other sources

  • Jacob G. Hornberger, "The Bill of Rights: Bail, Fines, and Cruel and Unusual Punishments," Law blog, Posted July 29, 2005 at Future of Freedom website


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