History
The Unconstitutionality of Excessive Bail Under the Eighth Amendment
Quick fact
The Eighth Amendment's Excessive Bail Clause applies to the states through the Fourteenth Amendment and has been interpreted to allow detention without bail if a judge concludes that no conditions can ensure the safety of the community or the defendant's appearance in court.
Why this is interesting
Why can an American accused of a crime be held in jail without a trial simply because they cannot afford bail?
Read the full explanation
Understanding The Unconstitutionality of Excessive Bail Under the Eighth Amendment
The Eighth Amendment to the U.S. Constitution, part of the Bill of Rights, says that 'Excessive bail shall not be required.' But what does 'excessive' mean? Imagine bail as a financial promise: you pay a sum of money (or promise to pay it) to the court as a guarantee that you'll return for trial. If you show up, you get your money back. If you don't, you lose it. The purpose is not punishment; it's to make sure you come back. The excessive bail clause is a limit on the government's power to set bail so high that it is impossible to pay, effectively pre-trial punishment. For most of U.S. history, courts have interpreted this clause as not guaranteeing a right to bail in every case. In 1987, the Supreme Court in United States v. Salerno ruled that the government can detain someone without bail if it proves that the person poses a danger to the community. So, 'excessive' is not just about the dollar amount—it is about whether the bail amount is reasonable given the person's financial resources and the risk they pose. If a judge sets bail at $1 million for a minor theft, that is excessive because it's not related to the risk. If the judge sets it at $1 million because the person is charged with a serious violent crime and has strong ties to criminal groups, that could be justified.
A deeper explanation
To understand why excessive bail is unconstitutional, we need to look at the historical context. The prohibition comes from English law, particularly the Habeas Corpus Act of 1679, which was a response to the Crown's practice of setting astronomical bails to keep political dissenters in jail. The U.S. founders included this protection in the Eighth Amendment to prevent the new government from doing the same thing. The underlying principle is proportionality: bail must not be used as a means of punishment or coercion. But how do courts decide what is excessive? The Supreme Court in Stack v. Boyle (1951) stated that the amount of bail must be judged by the defendant's financial ability and the risk of flight, not by the seriousness of the crime alone. However, the Salerno decision expanded the balance: public safety can also be considered. So, excessive bail is not simply a dollar amount—it is any condition imposed that exceeds the legitimate purpose of ensuring appearance, or in a limited way, safety. The clause acts as a check on legislative and judicial power, requiring courts to individualize bail decisions. Today, this principle is central to bail reform: state and local courts often use cash bail schedules that automatically set high amounts for minor offenses, leading to pretrial detention for the poor. Courts have increasingly struck down these practices as violating the Excessive Bail Clause and due process, arguing that money bail discriminates against low-income defendants and violates the presumption of innocence.