During the colonial period,
Americans relied upon the
existing bail structure that had
evolved in England over several
hundreds of years. However in
1776, when the colonists
declared their independence,
they no longer depended on
English law, rather they set
down policies which closely
corresponded to English
tradition.
In medieval England, processes
to ensure that the accused would
appear for trial began as early
as the trials themselves. It
wasn't until the 13th century
that the Sheriffs were allowed
to determine when a defendant
could be detained for trial and
when he could be released with a
guarantee or a promise that he
would return to stand trial.
Unfortunately, the sovereign
authority held by Sheriffs was
not always equitably
disseminated throughout each
region. As a result, the Statute
of Westminister was established
in 1275, and eliminated the
discretion of sheriffs with
respect to which crimes were and
were not bail-able.
It
wasn't until several centuries later that
bail law underwent its next major change.
Early in the 17th century when King Charles
I did not receive funds from the Parliament,
he required several noblemen to issue him
loans. Those who refused were imprisoned
without bail. Five knights previously
incarcerated for this offense filed a habeas
corpus petition arguing that they could not
be held indefinitely without bail or trial.
In court, Attorney General Heath contended
that the King could best balance the
interest of the state security along with
the interest of individual liberty if he was
allowed to continue to exercise his
sovereign authority to imprison. The court
upheld Attorney General Heath's argument.
In
response to the King's action and the
court's ruling, Parliament issued the
Petition of Right of 1628 arguing that
contrary to the Magna Carta and other laws
guaranteeing that no man could be imprisoned
without due process of law, the King had
recently imprisoned people before trial when
no just cause had been shown. Unfortunately,
the King, the courts and the sheriffs were
able to defeat the intent of the Petition of
Right of 1628 by creating various procedural
delays in granting the writs of habeas
corpus. It wasn't until these procedural
delays were critically excessive that
Parliament passed the Habeas Corpus Act of
1677. The Act stated:
A magistrate shall discharge the said
prisoner from 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 the Nature of the offense,
for his or their Appearance in the court of
the Kings bench&ldots;unless it shall
appear&ldots;that the Party (is)&ldots;committed&ldots;for
such Matter or offenses for which by law the
Prisoner is not bail-able.
Although the Habeas Corpus Act of 1677
improved administration of bail laws, it
didn't provide any protection against
excessive bail requirements. As a result,
even if a suspect was accused of a bail-able
offense, he may still be detained if the
bail amount was inordinately high. As
substantiation of this abuse reached
Parliament, it responded with the English
Bill of Rights of 1689. The Bill of Rights
proposed to resolve this issue by
proclaiming "that excessive bail ought not
to be required." Thus, the concept of the
Eighth Amendment in the U.S Constitution was
drafted to prevent the accused of bail-able
offenses from exorbitantly high bail
requirements. It is important to note that
while the amount of bail was addressed, it
did not alter the categories of bail-able
crimes as referenced in the Statute of
Westminister and clearly did not guaranty
the right to bail.
In 1789 James Madison was commissioned to
prepare an initial draft for the Bill of
Rights and essentially used verbatim Section
9 of the Virginia Constitution which
provided that "Excessive bail shall not be
required&ldots;." During the congressional
debates Mr. Livermore voiced his concern
that this amendment only required that bail
not be excessive, but didn't provide a
definition of what constituted an excessive
bail requirement.
The bail clause in the Eighth Amendment was
only the first part of the structure. The
final part of the American bail structure
and the basis upon which the Constitution
provisions are based is the statutory
classification of justice officials' power
concerning bail and the categorization of
crimes into bail-able and non-bail-able
offenses.
The Eighth Amendment forbiddance of
excessive bail resolved that bail might not
be exorbitant in those cases where Congress
has deemed it suitable to permit bail. The
Congress then enacted the Judiciary Act
defining what offenses would be bail-able.
Habeas corpus protection was provided by
Article 1 of the Constitution.
In 1966, Congress enacted the first major
substantive change in federal bail law since
1789. The Bail Reform Act of 1966 created a
principle for releasing a suspect with as
little burden as necessary in order to
insure his appearance at trial. In 1969 the
Judicial Council Committee studied Bail
Reform Act of 1966, and was particularly
bothered by the release of potential
dangerous non-capital suspects permitted by
the 1966 law and recommended that even in
non-capital cases, a persons dangerousness
be considered in determining conditions for
release. Congress upheld the ideals put
forth in the committee's proposal and
changed the 1966 Bail Reform Act as it
applied to persons charged with crimes in
the District of Columbia. With that decision
by Congress came the bail system, as we know
it today.
