Making bail
The rise of individual rights
This is the third installment in the Making Bail series. You can read the first installment, an introduction, here. You can read the second installment on the origins of bail here.
FOLLOWING THE fall of the Roman Empire in 476 AD, the one thousand year period of history referred to as the Middle Ages ensued. Also called the Medieval Era, the Middle Ages is characterized largely by population loss, unstable centralized authority, and dynamic war and conquest. Within this tumult, however, there was the rise of kingdoms, efforts to formalize systems of justice, and the introduction of individual rights.
In 1166, England’s King Henry II publish the Assize of Clarendon, an act that created Assizes, or travelling courts, and trial by jury. The Magna Carta, adopted in 1215 by King John of England, also formalized the right to trial by jury. While the right to trial by jury existed prior to the adoption of the Magna Carta, the document stands out in history as marking the formal rise of individual rights.
With the advent of travelling courts, it became important to determine which offenders would be held in incarceration awaiting the Assize, and which would be released during that time. Initially, that decision was left to sheriffs, who were local agents of the crown. Too many sheriffs, however, abused their discretion by starting a lucrative practice of accepting bribes to release or hold prisoners. The First Statute of Westminster was adopted in 1275, in part, to solve the problem of the bribable sheriff. Chapter 15 of the statute specifically addressed bail by listing which offenses were bailable and which were not. The statute also had a provision for removing corrupt sheriffs from office. Written originally in French, Chapter 15 has been translated as, “no mans person shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, if he can put in sufficient securtie, bayle, or mainprise, for his appearance, and good behavior in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.” To put it more plainly, it says that all offenses are bailable, except for capital crimes, contempt of court, and any other crimes deemed not bailable by express statute. Henceforth, bailable offenses would be determined by statute, not by local sheriffs.
The First Statute of Westminster was simply a restraint on a sheriff’s ability to determine which offenses were bailable. The Statute did not restrain the king or other officials appointed by the king. It also did not address what amount of bond may be required for bailable offenses. The authority to set the amount of bail bonds belonged to a wide range of officials appointed by the king, including sheriffs and judges.
Enterprising minds may notice the loophole created by the First Statute of Westminster. Since it did not address the amount of bond, some of the malfeasance surrounding the bail or no bail decision relocated to the question of what amount the bail bond should be. There was no further reform in this area, however, for the next four hundred years, reflecting, perhaps, the challenge in balancing the rights of individuals with the danger they posed. The age-old question of balancing chaos and order.
In 1689, the English Bill of Rights addressed the proper amount of a bail bond for the first time, though the language maintained broad discretion. The statute stated, “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” To summarize the state of English law immediately preceding the U.S. Constitution, John-Michael Seibler and Jason Snead in their Heritage Foundation article on the history of cash bail wrote:
By the end of the 17th century, English citizens could point to centuries of statutory and common law affording a qualified right to pre-trial release. In England, this right to release was understood to be available only for certain classes of offenses and was unrelated to the ability of the accused to meet the requirements of bail—that is, if sufficient surety could not be obtained, the accused was most often detained. Thus, pre-trial release was a system designed to balance the interests of the accused with the interest of society in ensuring that wrongful acts be punished, and criminals be prevented from absconding. There was no guarantee that a suspect would be released pending trial. That general framework is still with us today.
As the American colonies developed throughout the 1700’s, they imported much of English law and tradition, including the criminal justice framework. The colonies struggled, as the English had, with order and chaos, in balancing individual liberty with dangerousness, punishment and justice for victims. The colonies adopted a patchwork of statutes constituting variations on practices in England. Some colonies even had laws against setting bail bonds too low. Judges and sheriffs who set the bond too low could be fined and required to compensate victims themselves.
Ultimately, the colonies came together to form the United States with the adoption of the U.S. Constitution in 1789. The U.S. Constitution says very little about bail. The original Constitution did not address bail at all. Later, the Eighth Amendment was adopted, importing the language from the 1689 English Bill of Rights relating to bail. Just as the English version, the Eighth Amendment states, “excessive bail shall not be required.”
Thus, there is no U.S. Constitutional right to bail. The Constitution does not define which crimes are bailable. The document prohibits only excessive bail in those instances where bail is allowed by statute, but it does not define excessive.
This comports entirely with the long history of bail practices ranging from primitive tribunals to the Roman Empire, through the Middle Ages, and the development of the Anglo-Saxon legal system. These historical practices had a heavy emphasis on order, insuring punishment and justice to the victim. Even after the rise of individual rights in English law and the U.S. Constitution, which was a tilt toward the chaos end of the spectrum, there remains in the law a healthy fear of dangerousness and a strong desire for justice for victims.
With the limited text on bail in the U.S. Constitution, most regulation of bail in the U.S. comes from federal and state statutes, court cases, state constitutions, and sometimes state court rules. These sources will be discussed throughout the next installments in this series.