THE HISTORY OF BAIL

Bail is a term for a form of capital which is deposited or pledged to a court, as a form of collateral used to convince it to release an accused from a jail facility. The collateral is used as the basis of an understanding that the accused will return for his or her trial or the bail will be forfeited. Depending upon the court, the judge and the crime(s) of which one is accused, will be the determining factor in the amount of the bond that is required. Bail is not automatic, it can be legally denied by a judge, for an offense or charge which an governing legislature has determined to be non-bailable offense.

The Roots of United States Bail Laws: Bail laws in the United States grew out of a history of English statutes and policies. The ties between the institution of bail in the United States is also based on the Old English Law System. In attempting to understand the meaning of the American Constitutional Bail Provisions and how they were intended to supplement a larger statutory Bail Structure, a basic knowledge of the English System and how it developed until the time of American independence is essential for one's understanding.

Bail Law in England: In medieval England, the sheriffs originally possessed the authority to release and/or hold a suspected criminal. Some sheriffs would exploit the concept of bail for their own gain. The Statute of Westminster (1275) limited the discretion of sheriffs with respect to the bail. Via a statute, bailable and non-bailable offenses were defined, however, the sheriffs still retained the authority to decide the amount of bail required. In the early 17th Century, King Charles I ordered noblemen in the country to issue him loans. Those who refused were imprisoned. Five of the incarcerated noblemen filed a Habeas Corpus Petition arguing that they should not be held indefinitely without trial or bail. In the Petition of Right in the year of 1628 the Parliament argued that, the King was in violation of the Magna Carta, in that the King had imprisoned noblemen without just cause.

The Habeas Corpus Act of 1677 states, "A Magistrate shall discharge Prisoners from their Imprisonment, taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate's Discretion, unless it shall appear that the Party is committed for such Matter or Offenses for which by Law the Prisoner is not bailable." The English Bill of Rights of the year 1689 further states that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required." This was a precursor of the 8th Amendment to the United States Constitution.

Bail Law in the United States: In Colonial America, bail laws were based off old English Law. Some of the colonies simply guaranteed their subjects the some basic protections of British Law. In 1776, after the Declaration of Independence was signed those States that had not already done so, enacted their own versions of Bail Laws. Section 9 of Virginia's 1776 Constitution states "excessive bail ought not to be required..." In the year of 1785, the following was added, "Those shall be let to bail who are apprehended for any crime not punishable in life or limb...But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail." The concept continued with Section 29 of the Pennsylvania Constitution of 1776 states "Excessive bail shall not be exacted for bailable offenses." The 8th Amendment in the United States' Bill of Rights is derived in part from the Virginia Constitution, "Excessive bail shall not be required...", in regards to which Mr. Livermore commented, "The clause seems to have no meaning to it, I do not think it necessary. What is meant by the term excessive bail...?!" The 8th Amendment to the U.S. Constitution, like the English Habeas Corpus Act of 1678, requires that a suspect "be informed of the nature and cause of the accusation" and thus enabling a suspect to demand bail if accused of a bailable offense.

In 1789 the Judiciary Act was enacted, this the same year that the Bill of Rights were introduced, Congress passed the Act. This Act specified which types of crimes were bailable and set bounds on the discretion of a judge in setting bail. This Act states that all noncapital offenses are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge. The Judiciary Act further states, "Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein."

In 1966, United States Congress enacted the Bail Reform Act of 1966 which states that a non-capital defendant is to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial. In that case, the judge must select an alternative from a list of conditions, such as restrictions on travel. Individuals charged with a capital offense, or who have been convicted and are awaiting sentencing or appeal, are to be released unless the judicial officer has reason to believe that no conditions will reasonably assure that the person will not flee or pose a danger. In non-capital cases, the Bail Reform Act does not permit a judge to consider a suspect's danger to the community, only in capital cases or after conviction is the judge authorized to do so. The 1966 Bail Reform Act was particularly criticized within the District of Columbia, where all crimes formerly fell under Federal bail law. In a number of instances, persons accused of violent crimes committed additional crimes when released on their personal recognizance. These individuals were often released yet again. The Judicial Council committee recommended that, even in non-capital cases, a person's dangerousness should be be considered in determining conditions for release. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in non-capital cases.

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